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https://www.courtlistener.com/api/rest/v3/opinions/2420238/ | 235 S.W.2d 518 (1950)
TEXAS CANDY & NUT CO. et al.
v.
HORTON.
No. 14249.
Court of Civil Appeals of Texas, Dallas.
October 20, 1950.
Rehearing Denied December 29, 1950.
*519 Malone, Lipscomb & Seay, of Dallas, W. R. & W. P. Abernathy, of McKinney, for appellants.
Moses & Truett, of McKinney, for appellee.
CRAMER, Justice.
Appellees Hal C. Horton, Sr., Hal C. Horton, Jr., and Paul W. Plunket, Jr., trading as Hal C. Horton, brought this action against C. C. Bennett and John R. Terrill, trading as Texas Candy & Nut Company, *520 also alternatively against each of the following: Texas Candy & Nut Company, a co-partnership composed of C. C. Bennett and John R. Terrill, also against C. C. Bennett and John R. Terrill as partners and individuals, also against C. C. Bennett as owner and John R. Terrill as general manager, agent, servant, and employee of Texas Candy & Nut Company, also against Texas Candy & Nut Company, a trust estate of which C. C. Bennett and wife LaNette Bennett are grantors and grantees and trustors and trustees, with Lindalyn Bennett and Ida Bess Bennett as beneficiaries, against Texas Candy & Nut Company of which Lindalyn and Ida Bess Bennett are beneficiaries, also against John R. Terrill and C. C. Bennett as agents, servants, and employees of said trust and of the Texas Candy & Nut Company, also against C. C. Bennett and wife LaNette Bennett as trustees of said trust and of the Texas Candy & Nut Company, also against Ida Bess and Lindalyn Bennett as beneficiaries of said trust and of Texas Candy & Nut Company, for $10,250 damages growing out of the alleged breach of an option and sales contract covering one thousand drums of cane molasses syrup. Trial was to the court without a jury and after hearing the evidence the court took the matter under advisement, thereafter granting a motion for leave to file a trial amendment. The trial amendment, in addition to above named defendants, complained of C. C. Bennett and John R. Terrill individually and as joint adventurers. The court then rendered judgment against C. C. Bennett and John R. Terrill, jointly and severally, and a take nothing judgment against appellees in favor of all other defendants. This appeal was duly perfected from that judgment by appellants C. C. Bennett and John R. Terrill only.
It appears from evidence, most favorable to the judgment, that Hal C. Horton, at Greenville, received a telephone call from someone in Dallas who told him his name was C. C. Bennett and asked him if he was the party who had theretofore bought some syrup from B & W Candy Company. Horton told him he was. Such party then told Horton that he had considerable of the same syrup and wanted to know if he was interested. Horton told him he was. They discussed terms, Horton offering him $9 per drum, Bennett asking $10. They could not get together and Bennett told him the syrup was at McKinney and other points and asked Horton to go to McKinney and see it. Horton went to McKinney and, at the address given in the phone call, met John R. Terrill (a nephew of Bennett) in the place of business of the Texas Candy & Nut Company. Horton told Terrill of the conversation with Bennett. Terrill was manager of Texas Candy & Nut Company which was owned by a trust estate of which C. C. Bennett was one of the trustees. John R. Terrill there made an agreement with Horton for Texas Candy & Nut Company in substance as follows: Texas Candy & Nut Company gave Horton an option to purchase 750 to 1,000 drums of syrup for $10 per drum. Thereafter Horton exercised the option within the time limit and contracted for 1,000 drums of syrup at the agreed price of $10 per drum. Bennett and Terrill and the Texas Candy & Nut Company thereafter declined to deliver the syrup as contracted for. The damage suffered by appellee Hal C. Horton by reason of the breach was $7,937.50.
Appellants assign 26 points of error.
The first three points complain of the trial court's permitting the filing of the trial amendment after the close of the evidence. The record shows that the trial court, when the trial amendment was presented, after the evidence had closed, and on December 27, 1948, gave appellants' attorneys until December 29, at 2:00 P. M., to make objections to the trial amendment. At that time the bill of exceptions shows the following conversation between the court and the attorneys:
"Court: Do the defendants have anything to say about this?
"Abernathy: I don't think so.
"Court: Are you ready for me to announce my decision?
"Truett: I am."
*521 Under such record these points are overruled.
Points 4 and 5 complain of the admission over their objection of the conversation between Horton, over the telephone, with the party who told him he was C. C. Bennett, as detailed above. Such evidence, if not admissible, was material and necessary to connect C. C. Bennett with the contract,the breach of which is the basis of this suit. The general rule applicable to such conversations over telephone is well settled. When the party called over a telephone depends entirely upon the word of the party calling as to his identity, the conversation is hearsay and not admissible. If, however, the party calling, in addition to his statement of his identity, relates facts and circumstances which, taken with other established facts, tend to reveal his identity, then the conversation is admissible. Such evidence makes a question of fact as to such identity of the person calling. National Aid Life Ass'n v. Murphy, Tex.Civ.App., 78 S.W.2d 223, syllabi 7 and 8, and Thomasson v. Davis, Tex. Civ.App., 74 S.W.2d 557, both by this Court. Horton testified on the trial that prior to the conversation here challenged he had bought some 403 drums of syrup from the B & W Candy Company of Greenville. (B & W, the record shows, meant Charles Bennett and Karl Woodward. That when he went to McKinney he advised John R. Terrill of the phone call and was told by Terrill that Bennett had talked to him. Terrill then showed Horton the syrup and thereafter the option and agreement in issue were completed. Under the state of the record no error is shown by points 4 and 5.
Points 6 to 11, inclusive, are briefed together and will be so considered. They assert in substance that, the contract being made by Terrill, before the judgment can be sustained there must be a showing (6) that Terrill owned the syrup or had authority to represent the owner; (7) and since Horton made no attempt to determine the ownership, no sufficient showing to sustain the judgment is in the record; (8) that since all important dealings were with Terrill and there is no showing that Bennett owned the syrup in question as a joint adventurer with Terrill, or that Terrill acted in the capacity of a joint adventurer in giving the option and making the contract, it was error to enter judgment against them as joint adventurers; also that there was error in admitting, over objection, the evidence of (9) Horton, Sr., and the witnesses (10) Tune and (11) Jack Horton, that Terrill told them he had authority to sell the syrup in question.
Since, in overruling points 4 and 5, we have held that the evidence of C. C. Bennett's phone call to Horton was admissible; that Bennett himself, in that prior conversation, told Horton that he had the syrup and sent Horton to Terrill to buy the syrup; also that Terrill was in charge of the business and sold the syrup to Horton for the Texas Candy & Nut Company, for which Bennett was a trustee, the court's findings in favor of appellees on these fact issues settled the question against Bennett and Terrill. The points are overruled.
Points 12 and 13 assert that the undisputed evidence showed that Terrill was merely a salaried employee of Texas Candy & Nut Company, without authority to bind the Company or C. C. Bennett in the option and sale; that there is no pleading to sustain a holding that he exceeded his authority or perpetrated a fraud. Therefore the judgment against Terrill must fall.
Points 14 to 19 assert in different ways that there was no competent evidence to support the finding by the trial court that Bennett and Terrill were engaged in a joint adventure.
As we view the record, the evidence shows that Terrill was in the place of business of Texas Candy & Nut Company, in charge thereof, and that in the giving of the option and the making of the contract, he did at times refer to what "We" and "I" will do, but such expressions, taken with all the other evidence, in our opinion do not raise a question of fact as to his dealing personally or as a partner or joint adventurer with others in giving the option and making the contract; but indicate *522 only what he, as agent, manager, or employee of Texas Candy & Nut Company would obligate the company to do. Under such state of the record we are of the opinion that the evidence does not amount to a scintilla and is insufficient to support the findings. Such points are sustained.
By points 20 to 24 appellants raised the question of the sufficiency of the evidence on damages; that the court applied the wrong measure of damage; that there was no proof of the difference between the contract price and the market value at the time of delivery dates. The record shows that Horton completed the contract by exercising the option on May 8, 1948, within the time limit of the option; that he resold 500 drums of the syrup to one E. R. Prone at $20 per drum. He also testified as to other sales at from $15 to $18 per drum, within reasonable times after the option was exercised; also that he could not purchase the syrup on the market to fill the orders he had sold for less than $18 per drum; and that he did make purchases at $18 per durm during said times.
This was sufficient basis for the court's findings, and therefore the points are overruled.
Points 25 and 26 assert an absence of evidence to show appellees' ability to pay for the syrup in question. The evidence does show appellants' refusal to deliver the syrup. Under such facts the showing of appellees' ability to pay for the syrup was not necessary in order for appellees to recover. These points are overruled.
It must also be noted that C. C. Bennett is a trustee of Texas Candy & Nut Company and, as such, is personally liable for the debts of the Texas Candy & Nut Company created by him as trustee. Longhart Supply Company v. Zweifel, Tex.Civ. App., 39 S.W.2d 959; 65 Corpus Juris, p. 703, Trusts, sec. 570; 42 Texas Jurisprudence, p. 724, Trusts, sec. 109; 54 American Jurisprudence, p. 272, Trusts, sec. 347.
From what has been said above and from our sustaining of assignments Nos. 12 to 19, inclusive, it follows that the judgment below against John R. Terrill should be reversed and here rendered in his favor. Since only C. C. Bennett and John R. Terrill appealed, and their appeal was only from the judgment in favor of appellees Horton, Sr., Horton, Jr. and Plunket, Jr., the judgment in favor of appellees against Bennett should be affirmed, and the balance of the trial court's judgment not appealed from be left undisturbed.
Reversed and rendered in part; affirmed in part; and left undisturbed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420089/ | 22 F. Supp. 2d 871 (1998)
Tommy Lee RUTLEDGE, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 97-4054.
United States District Court, C.D. Illinois.
September 25, 1998.
*872 *873 Harold M. Jennings, Jennings Novick, Bloomington, IL, for petitioner.
Thomas A. Keith, Assistant United States Attorney, Peoria, IL, for respondent.
ORDER
MIHM, Chief Judge.
This matter is before the Court on Petitioner, Tommy Lee Rutledge's ("Rutledge"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255[# 1], Petitioner's Motion for Production of Telephone Recording [# 14], Petitioner's Motion for Evidentiary Hearing [# 15], Petitioner's Motion to Produce Statements by Michael Wright [# 21], Petitioner's Motion to Produce Statements by Kim Mummert [# 22], and Respondent's Motion for Reconsideration of the Court's June 18, 1998 Prospective Ruling [# 38].
Rutledge's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255[# 1] is GRANTED IN PART and DENIED IN PART. The Clerk is directed to prepare a new Sentencing Order which reflects the determinations made within this Order. Petitioner's Motion for Production of Telephone Recording [# 14] is DENIED. Petitioner's Motion for Evidentiary Hearing [# 15] is DENIED. Petitioner's Motion to Produce Statements by Michael Wright [# 21] is DENIED. Petitioner's Motion to Produce Statements by Kim Mummert [# 22] is DENIED. Respondent's Motion for Reconsideration of Court's June 18, 1998 prospective ruling [# 38] is DENIED. The Court will hold a telephone status call with counsel within 14 days to determine whether the United States wishes to pursue the retrial of Count V.
Background
A jury convicted Tommy Lee Rutledge, Shelly Henson, Richard Hagemaster, and Stan Winters of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Additionally, the jury convicted Rutledge of conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848, distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), and two counts of using or carrying a firearm during the commission of a drug felony in violation of 18 U.S.C. § 924(c).
Rutledge was sentenced to life imprisonment on the continuing criminal enterprise *874 count (Count I), life imprisonment without the possibility of release on the conspiracy to distribute narcotics count (Count II), and life imprisonment without the possibility of release on the distribution count (Count III). Rutledge also received a 10-year term of imprisonment on the possession of a firearm by a felon count (Count IV). The three life terms and the 10-year term were ordered to run concurrently. Rutledge was also sentenced to a 5-year term of imprisonment on one armed drug trafficker count (Count V) and a 10-year term of imprisonment on the other (Count VI). These convictions were consecutive to each other and the other sentences.
Rutledge appealed his conviction to the Seventh Circuit, which affirmed his conviction. United States v. Rutledge, 40 F.3d 879 (7th Cir.1994). Subsequently, the Supreme Court reversed the Seventh Circuit's decision and remanded the case for a vacation of either Count I(CCE) or Count II (conspiracy to distribute narcotics), holding that conspiracy to distribute controlled substances is a lesser included offense of the continuing criminal enterprise offense. Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). This Court vacated Count II on May 29, 1996.
Rutledge filed a motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct an Illegal Sentence on April 24, 1997. On November 12, 1997, this Court appointed counsel to represent him. On March 26, Rutledge filed a supplemental memorandum of facts and law supporting his previously filed § 2255 motion. The issues which require resolution are:
1. Whether Counts V and VI (both armed drug trafficker counts) must be vacated in light of the evidence, jury instructions and the Supreme Court's decision in United States v. Bailey?
2. Whether the Count I(CCE) conviction must be set aside because the jury could have relied on impermissible predicate offenses?
3. If Count I(CCE) is vacated, can Count II (conspiracy) be revived?
4. Whether Count IV (felon in possession of firearm) must be vacated because of the restoration of certain civil rights?
5. Whether Count III (distribution of controlled substance) must be vacated due to his trial counsel's failure to conduct an adequate investigation of the facts, interview potential witnesses and present an alibi defense?
6. Whether the sentence imposed on Count III must be reduced to no more than 30 years because the sentence exceeds the maximum sentence proscribed by 21 U.S.C. § 841(b)(1)(C)?
7. Whether Rutledge was denied effective assistance of counsel as guaranteed by the Sixth Amendment?
Rutledge has also filed motions seeking the production of telephone recordings which were made from his place of incarceration [# 14], for an evidentiary hearing [# 15], and to produce statements by Michael Wright [# 21] and Kim Mummert [# 22]. As will be discussed below, this Court finds that the issues presented in the § 2255 motion are purely legal and that there is no need for additional evidence. Accordingly, these Motions are denied.
Standard of Review
Relief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice. Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (internal citations and quotations omitted). A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir.1995). A petitioner is barred from raising in a § 2255 proceeding constitutional issues that could have been raised earlier unless he or she can show good cause and prejudice. Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988). Non-constitutional errors that could have been raised on appeal are barred in a § 2255 proceeding, regardless of cause and prejudice. Therefore, a petitioner may not raise three types of issues: (1) issues that he or his attorneys raised on direct appeal, absent a showing of *875 changed circumstances; (2) non-constitutional issues that could have been, but were not, raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, unless petitioner can show both good cause for, and prejudice from, the procedural default. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996).
1. Counts V and VI (Armed Drug Trafficker) and the Bailey Rule
Rutledge argues that his convictions on Counts V and VI (both armed drug trafficker counts pursuant to 18 U.S.C. § 924(c)) must be vacated because of the rule announced in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
Section 924(c)(1) requires the imposition of specified penalties if the defendant "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." At trial, this Court instructed the jury:
To sustain the charge of using or carrying a firearm during a drug trafficking crime as alleged in Counts 5 and 6 of the indictment the Government must prove each of the following propositions beyond a reasonable doubt. First, that the defendant Tommy Lee Rutledge did knowingly use or carry a firearm. Second, that the firearm was used or carried during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States.... In reference to Counts 5 and 6, use of a firearm does not require that the weapon be found on or near the defendant. A firearm is, quote, used, unquote, under federal law if its presence increased the likelihood of success of a drug offense as a means of protection or intimidation.
Jury Instruction No. 18.
While the instruction given by this Court was an accurate statement of the law at the time of Rutledge's trial, before his appeal was exhausted, the Supreme Court decided Bailey, which changed the landscape of the "use" prong of 924(c)(1).
In Bailey, the Supreme Court held "that 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 116 S.Ct. at 505. The Supreme Court stated that active employment "certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. (emphasis supplied). By contrast, the mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, or nearby concealment of a gun to be at the ready for an imminent confrontation are no longer within the scope of § 924(c)'s definition of "use." Id. at 508. The Court made it clear that the Government was required to show more than the "inert presence" or "storage" of a firearm in order to establish the "use" prong.
It is the law of this Circuit that an erroneous jury instruction is harmless if, looking at the instructions and the record as a whole, the Court can be convinced that a properly instructed jury would have reached the same verdict. United States v. Williams, 33 F.3d 876, 879 (7th Cir.1994). Rutledge, however, correctly argues that the general phrasing of the jury instruction at his trial makes it impossible to tell whether the jury convicted under the "use" or "carry" prong, and he is consequently entitled to the presumption that the jury's conviction rested solely on the "use" prong.
The Seventh Circuit was faced with this problem of applying Bailey retroactively in United States v. Jackson, 103 F.3d 561 (7th Cir.1996). There, a three-tier standard was established for determining what relief is appropriate.
In cases ... where the jury instruction on "use" was clearly flawed, whether a § 924(c)(10) conviction will be affirmed out right, reversed outright, or reversed and remanded depends on the nature of the evidence presented at trial. The essential framework is as follows: 1) if all the firearms evidence presented qualifies as either active-employment "use" or "carry" we will affirm the conviction despite the bad instruction, see, e.g., United States v. Baker, 78 F.3d 1241, 1245-1247 (7th Cir.1996); 2) if none of the evidence presented qualifies *876 as either active-employment "use" or "carry," we will reverse the convictions outright, see, e.g., United States v. Monroe, 73 F.3d 129, 132-33 (7th Cir.1995); and 3) if some of the evidence presented could qualify as either active-employment "use" or "carry" but other firearms evidence presented exemplifies only possession of some other type of now-defunct, inactive "use," we will reverse the conviction and remand for new trial, since we cannot be sure whether the jury convicted on the proper basis or the improper basis, see, e.g., United States v. Thomas, 86 F.3d 647, 650-51 (7th Cir.1996).
Jackson, 103 F.3d at 569.
The Government concedes that Count VI should be reversed. However, the parties dispute what should be done with Count V (Rutledge seeks outright vacation; the Government wants a new trial). The Government argues that there was some evidence of active "use" produced which would allow a retrial of Count V. The Government relies on evidence that Rutledge traded drugs for a guns on multiple occasions. Bailey specifically contemplates that "bartering" is an activity which would constitute "use." As there was testimony presented at trial that Rutledge bartered drugs for guns, this Court finds that Count V can be retried, as some of the evidence admitted at trial would support a conviction in the post-Bailey environment.
2. Count I(CCE) and Impermissible Predicate Acts
The CCE statute, 21 U.S.C. § 848, requires proof of five elements: (1) a violation of the federal narcotics laws; (2) which crime is part of a series of violations of the federal narcotics laws; (3) undertaken by the defendant and at least five other individuals; (4) with respect to whom the defendant holds a supervisory, managerial, or organizational role; and (5) from which the defendant receives substantial income or resources. United States v. Moya-Gomez, 860 F.2d 706, 745 (7th Cir.1988).
Count I(CCE) of the indictment describes predicate acts as "including but not limited to the acts set forth hereinafter in Counts 3, 4, and 5 which Counts are incorporated by reference as if fully set forth here." From the discussion above, Count V needs to be retried. Count IV (felon in possession of firearm) is not a narcotics crime. Under the CCE statute the Government must prove a continuing series of violations of the federal narcotics laws. 21 U.S.C. § 848(b)(2). Rutledge argues that it is well settled that when a court has no way of knowing which alternative ground the jury utilized to determine guilt, and when one or more of those alternative grounds are legally impermissible, the court must reverse the conviction. Griffin v. U.S., 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). Accordingly, Petitioner's position is that since at least two of the predicate grounds mentioned in the indictment are impermissible, the CCE conviction is infirm. This Court agrees.
The Government points out that the jury instruction on the elements required to sustain a charge of CCE was proper. The jury instruction stated:
[T]he Government must prove each of the following propositions beyond a reasonable doubt.
First: That the defendant Tommy Lee Rutledge violated a federal drug felony law; and
Second: That the conduct took place as part that the conduct took place as a part of a continuing series of violations; and
Third: That the defendant undertook this activity in concert with five or more persons; and
Fourth: That the defendant acted as the organizer, supervisor or other positions of management of those five persons; and
Fifth: That the defendant obtained substantial income or resources from the criminal enterprise.
* * * * * *
A continuing series of drug violations under the continuing criminal enterprise statute means at least two felony violations of federal drug laws not including a conspiracy charge. The defendant need not be convicted of the two felony violations. Furthermore, the felony violations do not have to be alleged in the indictment. You *877 must agree that there were at least two felony violations but you do not have to agree on which two were committed.
Jury Instruction Nos. 12-14.
The Government points out that the Seventh Circuit has upheld a CCE conviction where the trial court gave a general instruction regarding the predicate acts element of a CCE offense. United States v. Kramer, 955 F.2d 479, 486 (7th Cir.), cert. denied, 506 U.S. 998, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992). In Kramer, a jury instruction was held permissible which indicated that the defendant must have "engaged in a continuing series of violations based upon the various predicate acts set forth in the indictment, together with any additional violations of the drug laws." Id. at 487 (emphasis included in the original jury instruction).
The circumstances of the present case are different. In Kramer the court succinctly stated, "[i]f the government was not required to allege any of the possible predicate acts in the indictment, there can be no error where it has alleged all but a few of the acts." Id. at 488. In the case at hand, the jury was given a copy of the indictment which referred to Counts 3, 4, and 5 as being predicate acts. While the instruction in Kramer is perhaps not model, there the indictment did not go so far as to suggest acts which absolutely cannot be used as predicates.
At oral arguments on the instant Petition, the Government argued that the jury instruction given at Rutledge's trial was sufficient to expunge any taint which may have resulted from the inclusion of the impermissible grounds in the indictment. While it is well recognized that a jury is presumed to follow the instructions of a court, this Court cannot conclude that a technically correct refrain in a jury instruction can purge the tainted chorus of the indictment when the jury has been invited to consider impermissible predicate acts and has been presented with evidence of such.
On June 26, 1998 after oral argument on the instant § 2255 Motion, the Government filed a "Motion to Reconsider" the Court's prospective ruling and provided an additional argument on the CCE/predicate act issue. The Government argues:
Even though [this Court might] set aside Count 5 because of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), in order for the jury to have convicted the defendant of the Count 5 charge it had to find that the defendant used or carried a firearm "during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, that is the distribution of cocaine ...." (Count 5 of the Indictment, [emphasis in Government's memorandum but not in Indictment]). Therefore, to find the defendant guilty of Count 5, the jury had to find that the defendant committed a federal drug offense of distributing cocaine in connection with or in proximity to a firearm.
Government's Motion to Reconsider, filed June 26, 1998, at 2.
This, however, does not save the day for the Government. When the Court instructed the jury on the elements required to convict on Count V, it did not instruct the jury that the drug trafficking crime must be a felony. The Court instructed the jury, "that the firearm was used or carried during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States." (Transcript of Jury Instructions at 18) (emphasis added). This Court finds this instruction was insufficient, because it simply does not inform the jury that the predicate offense needs to be a felony. Some drug trafficking crimes which may be prosecuted in a federal court are not felonies. (See 21 U.S.C. § 844, making possession for a small amount of controlled substances punishable by imprisonment of one year or less). For the above reasons, the CCE conviction was improper and is accordingly vacated.
3. Reinstatement of Conspiracy Count
As the CCE conviction is invalid, the question becomes whether the conspiracy count can be reinstated. In short, this Court finds that there is good authority for so doing and accordingly orders the reinstatement of the conspiracy count.
*878 In United States v. Silvers, 888 F. Supp. 1289 (D.Md.1995), a district court examined this very question. An extensive excerpt of this well reasoned opinion follows:
The issue which the court now faces is whether defendant's lesser included conspiracy conviction may be reinstated now that the greater offense, CCE, no longer exists. This question appears to be a matter of first impression in this Circuit.
As far as the court is aware, the only Circuit that has been squarely confronted with this issue is the Sixth. In United States v. Ward, 37 F.3d 243, 250 (6th Cir. 1994), the defendant was convicted of both conspiracy and CCE. Following the jury's verdict, the district court vacated the conspiracy conviction as a lesser included offense of CCE. The Sixth Circuit found that the evidence was insufficient for the jury to conclude that Ward had managed, supervised or organized five or more people. Id. at 250. The Sixth Circuit, however, did not find any error with respect to his conspiracy conviction. Accordingly, upon vacating Ward's conviction for CCE, the Sixth Circuit, without any discussion, "reinstated" his conspiracy conviction. Id. at 250.
In addition to the Sixth Circuit's decision in Ward, it has been recognized by the Supreme Court, in another context, that a vacated conviction may lawfully be reinstated. In United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975), the Supreme Court held that a conviction may be reimposed where the trial court erroneously grants a judgment of acquittal notwithstanding the jury's verdict of guilty. In so holding, the Supreme Court recognized that reinstatement of a conviction does not implicate the Double Jeopardy Clause of the Fifth Amendment since it does not result in either a second prosecution or multiple punishments. Id. at 345, 95 S. Ct. at 1022. See also United States v. Jones, 763 F.2d 518, 525 (2d Cir.), ("The reinstatement of [the jury's] ... verdict does not violate Jones' double jeopardy rights since he will not be subjected to a second trial for the same offense. When a guilty verdict is reinstated, double jeopardy is not implicated."), cert. denied, 474 U.S. 981, 106 S. Ct. 386, 88 L. Ed. 2d 339 (1985); Govt. of the Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir.1981) ("The Double Jeopardy Clause is not offended when the government appeals a post-verdict judgment of acquittal if reversal on appeal would merely reinstate the jury verdict.... This is so because the defendant `will not twice be tried and thus will not twice be put in jeopardy for the same offense.'") (quoting United States v. Schoenhut, 576 F.2d 1010, 1018 n. 7 (3d Cir.), cert. denied, 439 U.S. 964, 99 S. Ct. 450, 58 L. Ed. 2d 421 (1978)).
While Wilson and the cases following it plainly involve a factual scenario distinct from the case at bar, the court nevertheless believes that the Supreme Court's holding, and the reasoning underlying it, are fully applicable here. If an appellate court may properly reinstate a conviction on direct appeal, there is no reason why a district court should not be able to do likewise on collateral review.[FN44] See United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir.) ("Thus there is no question that we could reverse and order that the conviction be reinstated. It follows a fortiori that it would not violate double jeopardy principles for the district court to make the same determination after a timely motion for reconsideration."), cert. denied, 502 U.S. 950, 112 S. Ct. 400, 116 L. Ed. 2d 349 (1991); North Carolina v. Pearce, 395 U.S. 711, 720, 89 S. Ct. 2072, 2078, 23 L. Ed. 2d 656 (1969) ("That a defendant's conviction is overturned on collateral rather than direct attack is irrelevant for these purposes [of double jeopardy] ..."); Hardwick v. Doolittle, 558 F.2d 292, 297 (5th Cir.1977) ("When a conviction is overturned on direct appeal or on collateral attack, the double jeopardy clause does not bar retrial....") (emphasis added), cert. denied, 434 U.S. 1049, 98 S. Ct. 897, 54 L. Ed. 2d 801 (1978).
44. This is especially true where, as here, defendant has effectively raised this issue for the first time by bringing a successful challenge to his CCE conviction. In this regard, defendant can have no legitimate expectation of finality with respect to the *879 court's vacation of his conspiracy conviction when he has challenged the greater offense upon which that vacation was solely based. Cf., United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987) ("Where the defendant challenges one of several interdependent sentences (or underlying convictions) he has, in effect, challenged the entire sentencing plan ... [and] he can have no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal.").
That a vacated conviction may legitimately be reinstated has also been recognized by several Circuits in another context as well. In United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), the appellant challenged two bank robbery convictions for which he had been given concurrent sentences. Finding no error warranting reversals of one of the convictions, the D.C. Circuit elected, in the interest of judicial economy, to simply vacate the other conviction, rather than engaging in a lengthy and needless analysis of the legal challenge raised by appellant with respect to that conviction. In so holding, the court noted:
The vacation of the judgment does not destroy the jury verdict, but is rather equivalent in practical effect to a suspension of the imposition of sentence. If it later develops that the interest of justice so requires, the sentence can be reimposed on a concurrent basis. The conviction could then be subject to appellate review. 432 F.2d at 606 n. 8.
The D.C. Circuit has continued to follow the approach set forth in Hooper. See United States v. Wood, 879 F.2d 927, 938 (D.C.Cir.1989). The Fifth and Eleventh Circuits have adopted this doctrine as well, and in so doing, have explicitly recognized that a vacated conviction may be reimposed in the interests of justice. See United States v. Cardona, 650 F.2d 54, 58 (5th Cir.1981) ("We deem the Hooper approach to be appropriate in this case. Accordingly, we vacate the convictions of [the appellants] on count III. If the government subsequently determines that the interests of justice require reimposition of the sentences, then it may interpose its objections and these vacated convictions would then be open to appellate review."); United States v. Butera, 677 F.2d 1376, 1386 (11th Cir.1982) ("The [Hooper] procedure is appropriate here.... [I]f the government subsequently determines that the interests of justice require reimposition of the sentence, it may renew its response to Denoma's challenge and the conviction in count one would be open to full appellate review."), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74 L. Ed. 2d 958 (1983). [Footnote omitted].
* * * * * *
Having considered the above authorities, the court is of the view that defendant's conviction may be reimposed. As the Fourth Circuit has recognized, vacating a lesser included offense is "nothing more than a technicality" that is done purely for the defendant's benefit so as to insure that he is not punished, either directly or collaterally, for both the lesser and greater offense. United States v. Reavis, 48 F.3d 763, 773 (4th Cir.1995). The vacation of the defendant's conviction was not a rejection of the jury's verdict, but rather was equivalent in practical effect to a "suspension of the imposition of sentence." United States v. Hooper, 432 F.2d at 606 n. 4. Now that defendant's CCE conviction has been reversed, there is no justification for defendant to escape punishment for his major role in a far-reaching conspiracy for which he was properly convicted. To hold otherwise, would indeed be to exalt form over substance. Accordingly, defendant's conspiracy conviction will be reinstated and a hearing held for sentencing on that conviction. [Footnote omitted].
Silvers, 888 F.Supp. at 1306-09.
This Court finds Silvers to be very persuasive in light of the fact that it is cited favorably in the opinion resulting from Rutledge's appeal to the Supreme Court, Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). The Rutledge court noted:
Finally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a "back up" conviction, preventing a defendant *880 who later successfully challenges his greater offense from escaping punishment altogether even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20-22. We find the argument unpersuasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger.
In Tinder v. United States, 345 U.S. 565, 570, 73 S. Ct. 911, 913, 97 L. Ed. 1250 (1953), the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor conviction. Exercising our "power to do justice as the case requires" pursuant to 28 U.S.C. § 2106, we ordered the District Court to correct the sentence without vacating the underlying conviction. Relying on Tinder and the practice in "state courts, including courts governed by statutes virtually the same as Section 2106," the Court of Appeals for the District of Columbia Circuit later decided that its "power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in the verdict." Austin v. United States, 382 F.2d 129, 141-143 (1967). [Footnote omitted].
Consistent with the views expressed by the D.C. Circuit, federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice ¶ 31.03[5], and n. 54 (2d ed.1995); United States v. Ward, 37 F.3d 243, 251 (C.A.6 1994) (after finding insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied, 514 U.S. 1030, 115 S. Ct. 1388, 131 L. Ed. 2d 240 (1995); United States v. Silvers, 888 F. Supp. 1289, 1306-1309 (D.Md.1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such a practice with approval. Morris v. Mathews, 475 U.S. 237, 246-247, 106 S. Ct. 1032, 1037-1038, 89 L. Ed. 2d 187 (1986) (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that "but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been different"). See also Jones v. Thomas, 491 U.S. 376, 384-385, n. 3, 109 S. Ct. 2522, 2527-2528, n. 3, 105 L. Ed. 2d 322 (1989) (citing Morris).
There is no need for us now to consider the precise limits on the appellate courts' power to substitute a conviction on a lesser offense for an erroneous conviction of a greater offense. [Footnote omitted]. We need only note that the concern motivating the Government in asking us to endorse either the Seventh Circuit's practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit's practice of entering concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary to impose multiple convictions, and we see no reason why Congress, faced with the same problem, would consider it necessary to deviate from the traditional rule. [Footnote omitted].
Rutledge, 116 S.Ct. at 1249-50.
Rutledge's sole argument is that the conspiracy count cannot be reinstated because his sentence was greater on that count than the sentence imposed for the CCE count. For the conspiracy count he was sentenced to life without parole, and for the CCE count he was sentenced to life. While at present this is a somewhat academic distinction given that federal parole no longer exists, Rutledge argues, and cites case law for the proposition, that as a matter of law a life sentence is less than a sentence of life without parole. Rutledge *881 points out that someday parole may be a possibility and that he is therefore prejudiced by such a reinstatement.
This Court finds Rutledge's argument flawed. While true that the reinstatement of his conspiracy conviction will result in a sentence of life without parole rather than merely life, this distinction is irrelevant for several reasons. First, as explained above, on remand from the Supreme Court, this Court was given the option of vacating either the CCE count or the conspiracy count. As a jury reached a guilty verdict on the conspiracy count, it would be manifestly unfair not to effectuate this verdict only because this Court chose to vacate the conspiracy conviction instead of what turns out today to be a impermissible conviction. Second, Rutledge's concern that he will be prejudiced by the reinstatement of a conviction of life without parole is untenable. This Court cannot agree with Rutledge that a reinstatement of his conspiracy conviction upsets his expectation in the sentence when it is he who is attacking the CCE conviction which was preserved only because the conspiracy conviction was vacated.[1] The Seventh Circuit has held that a defendant who challenges of one of several interdependent sentences has no legitimate expectation of finality in any discrete portion of the sentencing package. United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987). Accordingly, in light of the case law, this Court hereby reinstates Rutledge's conspiracy conviction.
4. Restoration of Civil Rights
Rutledge was convicted of Count IV (felon in possession of a firearm) in violation of 18 U.S.C. § 922(g)(1). He now argues that this count must be vacated since his civil rights were restored and that his trial counsel was ineffective because he failed to have the count dismissed. The predicate conviction was a 1984 conviction from Fulton County, Illinois Circuit Court. In a letter dated November 12, 1987, the Illinois Department of Corrections informed Rutledge that he owed no further obligation to that department. Moreover, attached to the letter was a memorandum which states in relevant part:
We are pleased to inform you of the restoration of your right to vote and to hold offices created under the Constitution of the State of Illinois. You also have the right to restoration of licenses granted to you under the authority of the State of Illinois if such license was revoked solely as a result of your conviction, unless the licensing authority determines that such restoration would not be in the public interest.
Exhibit 2 to original petition.
Rutledge argues that this letter purges the conviction so that it may not be utilized to invoke § 922(g). Specifically, Rutledge seeks shelter under 18 U.S.C. § 921(a)(20), which provides in part:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
This Court is of the opinion that Rutledge procedurally defaulted this issue. Rutledge did not raise this issue on direct appeal. Before this Court can reach the merits of this issue, Rutledge must demonstrate "cause" and "actual prejudice" for his failure to raise the ineffective assistance of trial counsel issue in his direct appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992). Rutledge has indicated that he communicated to his trial attorney that his civil rights had been restored by the State of Illinois. Since Rutledge's trial counsel was different than his appellate counsel, he cannot establish a "cause" for the procedural default. Nowhere does Petitioner allege constitutionally *882 ineffectiveness on appeal with respect to Count IV. In other words, Rutledge cannot claim that his appellate counsel could not have known of this issue at the time of his direct appeal, nor has he claimed that his appellate counsel was ineffective with respect to this issue.
Even if Rutledge had shown cause and prejudice, his claim is without merit. Rutledge places much reliance on United States v. Glaser, 14 F.3d 1213 (7th Cir.1994). In Glaser, the defendant, following a term of incarceration, was sent a letter stating:
This is to certify that Richard Raymond Glaser, who was on the 20th day of May 1983, sentenced to the Commissioner of Corrections by the District Court of Washington; Washington County, has completed such sentence and is hereby discharged this 17th day of June, 1986; and that pursuant to Minnesota Statutes, Section 609.165 the said Richard Raymond Glaser is hereby restored to all civil right and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.
*NOTE: Be advised that this certificate does not relieve you of disabilities imposed by the Federal Gun Control Act.
Id. at 1215.
The Seventh Circuit agreed with the defendant that this letter was sufficiently broad that it invoked the shelter principle of § 921(a)(20). The Court stated:
The notice rule is designed not for statutes ... that return the right to vote and cut hair but for communications that seem to have broader import. If, for example, the governor issues a pardon that by virtue of state law, does not restore the right to carry guns, then unless the state tells the felon this the federal government will not treat him as convicted. The second sentence of § 921(a)(20) is an anti-mouse-trapping rule. If the state sends the felon a piece of paper implying that he is no longer "convicted" and that all civil rights have been restored, a reservation in a corner of the state's penal code cannot be the basis for federal prosecution. A state must tell the felon point blank that weapons are not kosher. The final sentence of § 921(a)(20) cannot logically mean that the state may dole out an apparently-unconditional restoration of rights yet be silent so long as a musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self destruct. It must mean, therefore, that the state sometimes must tell the felon that under state law he is not entitled to carry guns, else § 922(g) does not apply.
Id.,quoting United States v. Erwin, 902 F.2d 510, 512 (7th Cir.1990) (emphasis in original).
The Glaser court concluded that where a letter gave back all rights, a felon must be expressly warned that involvement with guns may cause his former conviction to be used as a predicate for a future conviction. Moreover, the Glaser court was careful to point out that the final sentence of § 921(a)(20) instructs courts to look, not at the contents of the state statute books, but at the contents of the document. Id. at 1218.
In the case at hand, the letter Rutledge received differs in a crucial respect from the letter Glaser received. Quite simply, the letter does not restore all of Rutledge's civil rights. The letter merely addresses the restoration of his right to vote, hold offices and have licenses restored. This restoration, unlike the sweeping language used in the letter Glaser received, only represents a few of the civil rights which are guaranteed to citizens. For example, the letter does not attempt to restore Rutledge's right to sit on a jury. Thus, Rutledge cannot reasonably assert that he thought all his rights were restored by the letter.
This conclusion is further bolstered by the Seventh Circuit's decision of Roehl v. United States, 977 F.2d 375 (7th Cir.1992), which, compared to Glaser, is clearly more factually apposite to the case sub judica. There, a § 2255 petitioner produced a sample (the original having been destroyed) of the "discharge" letter that was issued to him. The letter stated, "[a]ny civil rights lost as result of conviction herein described, are restored by virtue of the discharge, under the provisions of section 57.078 of the Statutes of the State of Wisconsin." Roehl, 977 F.2d at 378.
*883 Roehl, like Rutledge, argued that his discharge fulfilled the dictum in Erwin which stated, "[i]f the state sends the felon a piece of paper implying that he is no longer `convicted' and that all civil rights have been restored," § 921(a)(20) prevents counting the conviction unless the paper expressly provides that the person may not ship, transport, possess, or receive firearms. Id. The Court rejected Roehl's theory and held:
Erwin aside, we think it arguable, at least, that the restoration of civil rights intended under 18 U.S.C. § 921(a)20 must be an individualized decision, as the expungement, setting aside, or pardon, also enumerated would be. Noscitur a sociis.
In any event, the ... "Discharge" form was routinely issued upon satisfaction of sentence. It referred to Wis.Stat. § 57.078 which, although using general language, has been construed to deal primarily with the right to vote and not to restore the right to hold office. Applying the Erwin language, we find no reasonable implication that one who receives such a "Discharge" will be treated as if no longer convicted, even if the language "any civil rights lost as a result" of the conviction can be construed to mean "all civil rights."
Id.
In the case at hand, the letter Rutledge received was less expansive than the one Roehl received. Roehl was given back all civil rights lost as a result of his conviction. On the contrary, Rutledge's restoration of rights was limited. Thus, Roehl, in fact, had a better argument than Rutledge does, and the Seventh Circuit nevertheless rejected it. Moreover, an important similarity exists between the Rutledge situation and Roehl's situation. Rutledge's letter essentially followed the Illinois Statute which automatically restores rights after serving a sentence and was not individually tailored, which the Roehl court seemed to find important. The relevant Illinois statute states:
A person convicted of a felony shall be ineligible to hold an office created by the Constitution of this State until the completion of his sentence. 730 ILCS 5/5-5-5(b). A person sentenced to imprisonment shall lose his right to vote until his release from imprisonment. 730 ILCS 5/5-5-5(c).
On completion of sentence of imprisonment or upon discharge from probation, conditional discharge or periodic imprisonment, or at any time thereafter, all license rights and privileges granted under the authority of this State which have been revoked or suspended because of the conviction of an offense shall be restored unless the authority having jurisdiction of such license rights finds after investigation and hearing that restoration is not in the public interest. 730 ILCS 5/5-5-5(d).
The letter Rutledge received was not sufficiently individualized to trigger the "anti-mouse trapping" rule of § 921(a)(20).
While the approach used in Roehl was criticized in Glaser, it was not rejected outright. And even if it is held that Roehl is deemed to no longer be good law, it is of no import because Rutledge's claim fails under either approach. First, under Glaser, it is patently clear that the letter Rutledge received did not restore all his civil rights. Second, under Roehl, Rutledge's letter is a mere recitation of the statutory scheme enacted in Illinois and is not an individualized determination. For the above reasons, this Court concludes that Count IV should stand.
5. Trial Counsel Ineffectiveness with Respect to Count III
Rutledge argues that his counsel was constitutionally ineffective for failing to investigate his case, interview witnesses, and present an alibi defense with respect to Count III (distribution). The main thrust of Rutledge's argument is that his trial counsel failed to interview Kim Mummert, who would establish that he was elsewhere at the time of the alleged drug sale to Michael Wright, despite Wright's specific testimony that he had purchased a quantity of cocaine from Rutledge.
The Government responds that, at minimum, Rutledge must produce an affidavit stating the testimony each witness would have given at trial. Wright v. Gramley, 125 F.3d 1038, 1044 (7th Cir.1997). In the present case, Rutledge has not produced affidavits, *884 despite having Mummert interviewed by a private detective, having another inmate telephone her and having sent a prepared affidavit for her to execute. In fact, the Government points out that Mummert in an affidavit has indicated that it was completely possible Rutledge sold cocaine during the month of January, 1989 and that it would have been possible for him to have distributed cocaine to Wright during that time.
Moreover, the Government argues that Rutledge's trial counsel attempted to discredit the testimony of Mummert in order to mitigate its damage. Mummert offered much evidence which incriminated Rutledge with respect to the continuing criminal enterprise and conspiracy drug charges. She was a main witness for the Government. Mummert was Rutledge's live-in girlfriend and gave a great deal of testimony which illustrated the scope of Rutledge's dealings in drugs. Defense counsel's strategy was to characterize her as an untrustworthy witness. This was a reasonable defense strategy. The continuing criminal enterprise charge and the conspiracy charge both potentially carry stiffer penalties than the mere distribution charge standing alone (as discussed below). Therefore, it would have been inconsistent to ask a jury to believe her testimony with respect to the alibi for Count III (distribution) while at the same time attempting to discredit her testimony which pertained to the more serious counts (CCE and conspiracy). It was in Rutledge's interest to try to discredit her rather than to formulate a defense strategy, the effectiveness of which would turn on her credibility. This Court "will not question counsel's choices among an array of reasonable trial strategies." United States v. Moutry, 46 F.3d 598, 605 (7th Cir.1995). This was a reasonable trial strategy.
The defendant must show that his trial counsel's performance fell below an objective standard of reasonableness and that but for the professional errors of his trial counsel, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674. This Court must "indulge in a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. ..." Id. at 689, 104 S. Ct. 2052. The tactic Rutledge's trial counsel used was reasonable albeit ultimately unsuccessful.
6. Defendant Argues His Sentence Exceeds Maximum Sentence Proscribed Under 21 U.S.C. § 841(b)(1)(C)
Rutledge was sentenced to life without the possibility of release on Count III. Rutledge argues that under the statute he can only be sentenced to a term of imprisonment of not more than 30 years. 21 U.S.C. § 841. The Court agrees.
The Government indicates that there is a split of authority among the circuits as to whether a sentencing court can only consider the quantity of drugs found to be involved in the offense of conviction (see United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.1993)) or whether a court could consider "relevant conduct cocaine" and not just the amount of cocaine recovered at the defendant's arrest and alleged in the indictment (see United States v. Reyes, 40 F.3d 1148 (10th Cir. 1994)).
The Government concedes that the Seventh Circuit favorably cited cases which relied on the Second Circuit's view and concedes that:
[F]or purposes of determining the defendant's sentence range under the guidelines, the Court should consider the entire five kilograms of cocaine the Court found attributable to the defendant. But for purposes of determining the defendant's statutory maximum sentence, the Court should not consider the relevant conduct quantity, only the quantity found to be involved in the offense of conviction for Count Three.
Government's Response to Petitioner's Supplemental Motion at 24.
Accordingly, Rutledge should be sentenced to the maximum of 30 years for Count III. The Government is ordered that this change appear in the proposed sentencing order.
7. Ineffective Assistance of Trial and Appellate Counsel
Rutledge makes many claims of ineffective assistance of counsel at both the trial and appellate level. The Court has carefully reviewed *885 his claims. Except to the extent indicated above, the Court adopts the Government's position with respect to these issues.
Conclusion
In conclusion, Count I(CCE) is vacated. Count II (conspiracy to distribute) is reinstated. Count III (distribution) remains viable, but the sentence imposed should be reduced to 30 years. Count IV (felon in possession of a firearm) remains. Count V (armed drug trafficker) is vacated but can be retried. Count VI (armed drug trafficker) is vacated.
Accordingly, Rutledge's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255[# 1] is GRANTED IN PART and DENIED IN PART. The Clerk is directed to prepare a new Sentencing Order which reflects the determinations made within this Order. Rutledge's Motion for Production of Telephone Recording [# 14] is DENIED. His Motion for Evidentiary Hearing [# 15] is DENIED. His Motion to Produce Statements by Michael Wright [# 21] is DENIED, and his Motion to Produce Statements by Kim Mummert [# 22] is DENIED. Respondent's Motion for Reconsideration of Court's June 18, 1998 prospective ruling [# 38] is DENIED. The Court will hold a telephone status call with counsel within 14 days to determine whether the United States wishes to pursue the retrial of Count V.
NOTES
[1] At oral argument Rutledge moved to be able to file another § 2255 petition attacking the conspiracy count if it were reinstated. The Court agrees that it is appropriate. Rutledge has 90 days from this Order to file such petition. Rutledge is cautioned, however, that the Petition is only to address matters which affect the legality of the conspiracy count. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1807366/ | 62 B.R. 159 (1986)
In re MULTI-PHOTO, INC., Debtor.
MULTI-PHOTO, INC., Plaintiff,
v.
MARK TWAIN BANK OF ST. CHARLES COUNTY, N.A., Defendant.
Bankruptcy No. 85-00874(2), Motion No. 02, Adv. No. 85-0244(2).
United States Bankruptcy Court, E.D. Missouri, E.D.
April 30, 1986.
Robert S. Flavin, St. Louis, Mo., for debtor.
David A. Warfield, St. Louis, Mo., for Mark Twain.
MEMORANDUM OPINION
DAVID P. McDONALD, Bankruptcy Judge.
INTRODUCTION
On May 15, 1985, the Court entered an Order for relief on the Debtor's voluntary Chapter 11 petition. At the time of its filing, Debtor was in possession of certain photographic equipment, inventory, and accounts receivable ("the collateral") in which Mark Twain St. Charles County Bank ("Mark Twain") claimed to have a valid and perfected security interest. On June 24, 1985, Mark Twain moved to terminate the *160 stay, or in the alternative, for an adequate protection order as to the collateral. On July 5, 1985, Debtor filed a response to Mark Twain's motion in which it prayed for its dismissal. Thereafter, on December 6, 1985, Debtor filed a complaint against Mark Twain in which it sought the Court's determination that Mark Twain did not have a valid lien on that part of the collateral consisting of the photographic equipment. On November 25, 1985, Mark Twain filed its Answer denying the Debtor's entitlement to relief.
Since the two matters involve common issues of fact and law, they were tried together on October 7, 1985. Upon consideration of the evidence, the arguments and briefs of counsel, and all other matters of record, the Court this day enters an Order denying Mark Twain's Motion For Relief From The Stay subject, however, to Debtor's complying with Bankruptcy Rule 2015 and tendering to Mark Twain an acceptable adequate protection proposal. The Court will also grant Debtor judgment against Mark Twain declaring that the bank does not have a valid lien on Debtor's photographic equipment.
JURISDICTION
This Court has jurisdiction over the parties and subject matter of these proceedings pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. These are "core proceedings" pursuant to 28 U.S.C. § 157(b)(2)(D), (G), (K), and (M), which the Court may hear and determine.
FACTS
Debtor is in the business of photo finishing and processing and has a place of business in only one Missouri county. At all relevant times, Donald R. Anderson ("Donald") was Debtor's President. Carol Anderson ("Carol") is Donald's former spouse. On July 9, 1981, Debtor guaranteed Mark Twain that it would pay Donald's present and future debts to it. On November 8, 1982, Debtor secured its obligations to Mark Twain by granting the bank a security interest in Debtor's accounts receivable, inventory, and their proceeds. Mark Twain perfected its lien by filing financing statements with the appropriate local and state authorities. On its bankruptcy schedules filed May 15, 1985, Debtor valued the accounts receivable at $5,933.15 and the inventory at $9,526.00. At trial, Donald testified that the current value of the accounts receivable was probably $6,000.00 and the inventory $8,000.00 $10,000.00.
On July 1, 1983, Donald executed a promissory note payable to Mark Twain in the principal sum of $28,400.00. Payments were to be made in monthly installments of $668.25. While Donald made payments through April, 1984, except for his $3,000.00 payment in June, 1984 and a $1,600.00 setoff taken by Mark Twain against Debtor's checking account in fall, 1984, no further payments have been made on this note. As of May 15, 1985, Debtor's date of bankruptcy, the balance owed on the note was $25,533.06.
Also on July 1, 1983, as security for its obligations to Mark Twain, Debtor granted the bank a security interest in its photographic equipment consisting of one Pakopak No. 3 Module EP2 (0799) and two Lucht Lens Drawers (the "photographic equipment"). This equipment is currently worth no more than $4,000.00. Mark Twain attempted to perfect its security interest by filing financing statements with the appropriate local and state authorities. The financing statements are attached hereto as Appendices 1 and 2.
Debtor disputes the efficacy of these filings. In particular, Donald testified that the financing statement filed in St. Louis County was not signed by the Debtor. Inspection of the document, as well as a comparison of it with the financing statement filed with the Missouri Secretary of State, supports Donald on this point.
The document obviously has been altered. The debtor was originally identified as "Anderson, Donald and Carol". This was marked out and "Multi-Photo, Inc." inserted into the box reserved for the debtor's name. Donald testified that he never *161 signed such "sloppy documents", at least not without initialling such changes. The document in question does not contain his initials. Moreover, it is signed by both Donald and Carol without any indication of their corporate capacity. Contrast this with the financing statement filed with the Missouri Secretary of State, signed only by Donald, with reference to his corporate office. The inference is very strong that Donald and Carol signed the financing statement as individual debtors, only to have someone subsequently alter the document by inserting in their stead "Multi-Photo, Inc." as the named debtor. The Court, therefore, finds that Multi-Photo, Inc. did not sign the financing statement filed with St. Louis County.
Since the inception of this case, Debtor has made no payments to Mark Twain. It has not received Mark Twain's consent for the use of cash collateral and it has not filed operating reports with the Court with the exception of one filed September 30, 1985 covering the period June 1, 1985 through July 31, 1985.
DISCUSSION
A. Debtor's Complaint
As debtor-in-possession, Multi-Photo, Inc. is vested with the rights of a trustee in bankruptcy. 11 U.S.C. § 1107. An unperfected security interest is subordinate to the rights of a trustee in bankruptcy. Section 400.9-301 R.S.Mo.; 11 U.S.C. § 544. Thus, if Mark Twain failed to perfect its security interest in the photographic equipment, Debtor owns it free and clear of any interest of Mark Twain.
Debtor argues that, in fact, it owns the equipment free and clear of any interest of Mark Twain simply because the bank never properly perfected its security interest in the photographic equipment. Debtor's argument has merit.
In order to perfect a security interest in equipment, financing statements signed by the debtor must be filed in the appropriate offices. Where, as here, the debtor has a place of business in only one Missouri county, the proper places to file are with both the Missouri Secretary of State and the office of the County Recorder of Deeds. Section 400.9-401(1)(c), R.S.Mo.
Although Mark Twain filed a signed financing statement covering the photographic equipment with the Missouri Secretary of State, the Court has found that the financing statement Mark Twain filed with St. Louis County was not signed by the Debtor. Thus, Mark Twain failed to perfect its security interest in the photographic equipment and Debtor owns it free and clear of any interest of Mark Twain. See, generally, In re Karachi Cab Corp., 21 B.R. 822 (Bankr.S.D.N.Y.1982).
B. Mark Twain's Motion To Modify Stay
Section 362(d) of the Bankruptcy Code provides as follows:
On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) with respect to a stay of an act against property under subsection (a) of this section, if
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
The Court is not yet convinced that Mark Twain qualifies for relief under subsection (2). While Mark Twain does not have a valid lien on Debtor's photographic equipment, it does have a valid lien on Debtor's accounts receivable, inventory, and their proceeds. Since the Debtor owed Mark Twain about $25,000.00 on the date of bankruptcy and the collateral was worth about $15,000.00 at that time, it is clear that Debtor has no equity in the collateral.
The inventory, accounts receivable, and their proceeds, however, are the life blood of the business. Effective reorganization would not be possible without them.
*162 Even with them, the Court has little basis for optimism about effective reorganization in this case. With the exception of the June-July, 1985 operating report, Debtor has not complied with the reporting requirements of Bankruptcy Rule 2015. Though nearly a year has passed since the filing of its petition, Debtor has not submitted a plan of reorganization. While the pending of the instant litigation may have made the details of a plan more complex, the formulation of a plan during this period was by no means impossible. Moreover, it appears that Debtor may have used accounts receivable and inventory proceeds to finance operation of its business. In the period immediately after filing, such proceeds would constitute cash collateral which Debtor should not have used unless it had Mark Twain's consent or a court order, neither of which it had or has to this date. 11 U.S.C. § 362(c)(2). Debtor has made no postpetition payments to Mark Twain and the bank now has pending before this Court a motion to dismiss Debtor's bankruptcy case. In short, the Court is not sanguine about Debtor's chances for success under Chapter 11.
Nonetheless, the Court is not yet ready to conclude that effective reorganization is impossible. Debtor is hereby cautioned, however, that unless it speedily remedies the problems noted above, the Court will grant Mark Twain appropriate relief.
The Court now turns to the issue of adequate protection. Under 11 U.S.C. § 362(d)(1), relief from the stay should be granted where the creditor's interest in the collateral is not adequately protected. Alternatively, the court can approve an adequate protection order.
In this case, Mark Twain had an interest in Debtor's accounts receivable, inventory, and their proceeds at the filing date. Section 552 of the Bankruptcy Code provides that a prepetition security interest does not attach to property acquired by the estate postpetition unless that property is proceeds covered by the security agreement. Although Mark Twain's security agreement covered proceeds, the rapid turnover of inventory and accounts receivable in Debtor's business would likely render Mark Twain's lien valueless were not the Court to protect it. In his closing argument, Debtor's attorney suggested that because the accounts receivable and inventory have not changed markedly in value since the inception of the case, Mark Twain's interest in the collateral would be adequately protected merely by Debtor's keeping their value at a specified minimum and furnishing Mark Twain periodic reports stating their value. Given the problems generated by Section 552, however, this proposal does not in itself adequately protect Mark Twain. On the other hand, "where the collateral consists of inventory and accounts adequate protection may be as simple as the providing of necessary accounting information and replacement security . . ." 2 Collier on Bankruptcy, ¶ 361.01[1] (L. King 15th Ed. 1985).
While the Debtor should infer from this opinion what the appropriate elements of adequate protection are, the Debtor, not the Court, must make an adequate protection proposal to Mark Twain. In re San Clemente Estates, 5 B.R. 605, 609 (Bankr. S.D.Cal.1980). Thereafter, the Court will decide whether it is acceptable.
Orders consistent with this opinion will be entered this date. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420266/ | 22 F. Supp. 2d 1265 (1998)
Sharon Lynn ATHERTON, et al., Plaintiffs,
v.
Lance WARD, et al., Defendants.
No. Civ-96-1926-A.
United States District Court, W.D. Oklahoma.
September 9, 1998.
James C. Linger, Butler & Linger, Tulsa, OK, for Sharon Lynn Atherton, Robert T. Murphy, Roger Bloxham, Rebecca Michelle Clem, Michael A. Clem, Randy Lee Gann, Charles A. Burris, Rocky Frisco, plaintiffs.
Karin M. Kriz, Wellon B. Poe, Jr., Office of the Attorney General, Litigation Division, Oklahoma City, OK, for Lance Ward, Secretary of the Oklahoma State Election Board, Glo Henley, Chairman of the Oklahoma State Election Board, Kenneth Monroe, Vice Chairman of the Oklahoma State Election Board, Mona Lambird, Member of the Oklahoma State Election Board, Oklahoma State Election Board, defendants.
MEMORANDUM OPINION AND ORDER
ALLEY, District Judge.
This case comes before the Court for decision following a nonjury trial held June 22 and July 17, 1998. At the conclusion of trial, the Court announced a preliminary ruling in favor of plaintiffs and invited the parties to file supplemental briefs on the issue of how to contour appropriate relief consonant with *1266 the Court's decision. After receiving the parties' submissions, the Court invited plaintiffs further to respond to defendants' proposed plan of implementation and then permitted defendants to respond to plaintiffs' submission. In a word, the parties have been heard. The Court now renders its final decision on the merits of plaintiffs' claims, reserving only the issue of attorney's fees.
FINDINGS OF FACT
Many key facts are established by stipulation. A few of these facts are repeated here; others appear in the final pretrial order. Other facts necessary to the Court's decision, established by evidence admitted at trial, are set forth briefly below.
Plaintiffs are registered Oklahoma voters and officers or active members of the Libertarian Party. In 1996, by petition signed by more than the requisite number, the Libertarian Party became recognized by the State of Oklahoma, and plaintiffs registered as Libertarian voters. In the November 5, 1996 general election, the Libertarian Party's presidential candidate failed to receive ten percent of the popular vote in Oklahoma. As a result, the Libertarian Party ceased to be a recognized political party pursuant to Okla. Stat. tit. 26, § 1-109. Plaintiffs' political affiliation as registered Libertarian voters in the Oklahoma Election Management System was then changed to Independent as required by Okla.Stat. tit. 26, § 1-110.
Oklahoma does not allow open voter registration. Under Okla.Stat. tit. 26, § 4-112, persons registering to vote must indicate on their application an affiliation with a recognized political party, or they are designated as Independent whatever their views or party affiliation. Now that the Libertarian Party is not a recognized party, plaintiffs cannot register as Libertarians. They must remain listed on voter records as Independents unless the Libertarian Party regains recognized party status by petition pursuant to Okla. Stat. tit. 26, § 1-108, as it did in 1996.
Voter registration records for all counties in Oklahoma became fully computerized in 1990. From 1990 until January 1, 1995, Oklahoma had a system of in-person voter registration in which deputized registrars assisted voters in filling out registration forms. With implementation of the National Voter Registration Act in January 1995, however, Oklahoma switched to a system that no longer uses deputized registrars. Voters instead complete registration applications that are forwarded to and processed by election boards.
As of November 5, 1996, Oklahoma had 141 registered voters who listed their political affiliation as Libertarian. The evidence shows that the Libertarians achieved this number during two short periods of open voter registration after the party became officially recognized in mid-June 1996. Registration closed on July 1, 1996 and was reopened only from October 1 until October 11, 1996. See Okla.Stat. tit. 26, §§ 4-110.1, 4-119. Also, Libertarian voters attempting properly to change their registration to that party experienced substantial difficulty in making the change due to staff confusion at county election boards and a voter registration application form that had no option for party designations other than Democrat or Republican. The experience of another political party that became recognized in 1996, the Reform Party, demonstrates that without these obstacles the number of registered voters affiliated with a new party steadily increases. Its registered voters rose from 129 in November 1996 to 149 in March 1997 to 269 in January 1998.
Oklahoma's current voter registration application allows a voter to select from the following political affiliations: Democratic Party; Republican Party; Reform Party; No Party; and Other. The State Election Board developed the form in 1997 to accommodate the flux in recognized political parties experienced in 1996. Next to the option "Other" is a blank space that enables an applicant to write in a non-recognized party; but, if a person were to do that now, he or she would be designated as an Independent on voter rolls.
The Oklahoma Election Management System includes computerized data kept by state and county election boards on every registered voter. A current computer-generated list of voters can be obtained by making a *1267 request of the State Election Board or a county election board. Information is available by precinct, and lists include the address and party affiliation of each voter. Election officials use such lists to conduct elections under Oklahoma's closed primary system, but the lists are public information.
PLAINTIFFS' CLAIMS FOR RELIEF
Plaintiffs want their support of the Libertarian Party reflected in Oklahoma's voter registration records; they view such registration as a form of political speech. They also contend that the inability to obtain a list of Oklahoma voters who consider themselves Libertarians unfairly burdens plaintiffs' right of political association. Plaintiffs argue that under the rationale of Baer v. Meyer, 728 F.2d 471 (10th Cir.1984), Oklahoma's voter registration system violates their First Amendment rights. They ask the Court to declare unconstitutional two statutes that, as applied to them, prevented their being registered as Libertarian voters, Okla.Stat. tit. 26, § 1-110 and § 4-112, and to enjoin defendants from enforcing these laws as to plaintiffs and other Oklahoma voters who wish to register as Libertarians.
DEFENDANTS' POSITION
Defendants urge the Court to avoid interference with Oklahoma's chosen voter registration scheme. They distinguish Baer as involving a different state system and one that provided by statute for "political organizations," as well as traditional parties. Such entities were not recognized as political parties but were given name protection after they succeeded in placing candidates on the ballot. Defendants urge the Court not to magnify problems created by the federal "motor voter" law. They contend that giving registration rights to a non-recognized political party will only increase voter confusion and defendants' difficulty in controlling the registration process and administering state election laws. Defendants argue that computerization and the concomitant ease in tracking political affiliation should not blur the real issue: Oklahoma's right to conduct elections and, as part of this right, to select a voter registration scheme that bests suits its election process without regard to the First Amendment considerations that underlie plaintiffs' being here.
ANALYSIS AND CONCLUSIONS
This Court is bound by the court of appeals' decision in Baer, which affirmed a decision requiring the State of Colorado to permit and to include in computerized voter registration records a voter's designation of political affiliation with the Libertarian Party or the Citizens Party. The court of appeals concluded that the First Amendment compelled this relief even though Colorado had a closed registration system, did not recognize these organizations as political parties, and gave them no statutory registration rights. The court of appeals found that these parties had demonstrated a "modicum of political organization and support" by placing candidates on the ballot in recent elections and that the burden to Colorado in registering members of these parties would be "merely nominal." Baer, 728 F.2d at 475-76. It also found that the state's refusal to include designations for these minority groups in voter registration records unnecessarily and unfairly burdened the individuals' First Amendment rights of political association. Id. In so holding, the court balanced the competing interests of voters who wished to associate with minority political organizations against the state's interest in regulating and conducting elections, as required by Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983), and came down on the side of a constitutional right, namely, that plaintiffs were entitled to register under the party affiliation they actually had.
The court of appeals applied Baer with different results in Rainbow Coalition of Okla. v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir.1988). There, the court rejected a challenge to Oklahoma's voter registration system by the Rainbow Coalition, Libertarian, and Populist Parties. At the time, Oklahoma's voter registration system was computerized in only three counties, and the court found that the administrative burden of allowing members of non-recognized political parties to register would be substantial. This burden, combined with the state's *1268 interest in controlling party registration of tiny fractional interests, was found to outweigh the infringement of plaintiffs' associational rights. The court of appeals deemed Oklahoma's registration statutes constitutional because, under the circumstances there presented, Oklahoma had "not unnecessarily infringed upon the associational rights of the voter and his party by restricting party designation to those parties that have shown the modicum of support necessary to receive recognized status." Rainbow Coalition, 844 F.2d at 747.
In this case, plaintiffs have made a strong showing that their chosen political group, the Libertarian Party, has a significant modicum of support and organization in Oklahoma. Although currently not a recognized political party, the Libertarian Party recently has been successful in petitioning for recognition under Okla.Stat. tit. 26, § 1-108 and in placing candidates on the ballot by petition. It is an identifiable, active political group within Oklahoma. It has recognized officials, organizational structure, written by-laws, and regularly scheduled meetings and conventions. Its members share a particular viewpoint and associational preference. They pay party dues. They are not "independents," the only designation permitted to them under Oklahoma statutes. They are entitled to be heard as a party with respect to First Amendment rights and to be protected from undue restriction by the State of Oklahoma.
The modest number of voters listed as Libertarian in Oklahoma registration records in 1996 does not accurately reflect the extent of the party's public support within the state. There was an extremely short period of time during which Libertarian voters could change their registered political affiliation or do a first-time registration in their party after the party became recognized in 1996. In addition to very brief windows of opportunity, persons wishing to register their political affiliation with the Libertarian Party encountered substantial difficulty accomplishing this, even being told wrongly by otherwise well-informed staff of county election boards that such registration was not permitted. If Oklahoma voters had been given an option to register as Libertarian for a longer time span, their degree of support would have been significantly higher.
Oklahoma's voter registration scheme places a substantial burden on the First Amendment rights of voters affiliated with the Libertarian Party. The Court sees no difference in a constitutional sense between Oklahoma law and the Colorado law at issue in Baer. As noted there, success in modern political organization and electoral campaigns depends on a group's ability to seek particularized support by targeting an appropriate audience and focussing its efforts. Access to computerized information about the political affiliation of registered voters is a great help, if the data indicates the particular party preference of individual voters. Oklahoma is to be complimented for making its voter information readily available. However, an inherent limitation in its system is the lack of information about voters whose political preferences are not the officially recognized political parties. Without necessarily intending to discriminate against voters and candidates who belong to the Libertarian Party, Oklahoma prevents them from obtaining and using particularized voter information in the manner enjoyed by those who belong to recognized political parties. This restriction places Libertarians at a significant political disadvantage.
In contrast, the burden to the State of Oklahoma in permitting members of the Libertarian Party to register their political affiliation and recording the information by computer is insubstantial. Defendants concede that computerization of Oklahoma's voter registration records and adoption of the current application form make recordation of Libertarian designations an easy task. Defendants' primary concern is that allowing applicants to designate a presently non-recognized party in the "Other" space on the form will confuse voters and election officials. Defendants also worry that lack of direct communication between election boards and voters wishing to register will exacerbate the problem. The parade of horrors offered by defendants simply does not justify the heavy burden on First Amendment rights suffered *1269 by the Libertarians when their registration as such is prohibited.
Any confusion to voters who would write in "Libertarian" on registration applications and to election board employees who would record such entries is not significantly different from what they face under the current system. As to a potential need for employees to make judgment calls, this potential exists any time one person has to decipher another's penmanship and already exists in regard to other types of information on the form. The Court is confident that election board employees are up to the task; methods of clarifying illegible or unclear designations can be devised if necessary. Similarly, any confusion generated by affording a new associational option to voters and communicating this change to the plethora of persons authorized to gather voter registration applications can be overcome. Finally, defendants' expressed concerns about sorting out frivolous attempts to designate other party affiliations and avoiding copycat requests for registration rights by other groups are illusory. Undoubtedly, in view of the Libertarian's strong showing of public support, this case does not involve a tiny fractional interest. Moreover, the relief afforded in this case will be specific, and is not extended to groups that do not have the significant modicum of political support that is a threshold for judicial recognition of First Amendment political rights. See Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S. Ct. 533, 93 L. Ed. 2d 499 (1986).
ORDER
The above analysis and conclusions lead the Court to rule as follows. The Libertarian party has currently achieved a substantial degree of support within the State of Oklahoma. Plaintiffs have important First Amendment rights in associating, voting, petitioning, and otherwise participating effectively as members of the Libertarian Party in Oklahoma's electoral process. The State Election Board has unfairly and unnecessarily burdened these rights by refusing to allow plaintiffs' affiliation with the Libertarian Party to be reflected in voter registration records. The statute requiring plaintiffs' party affiliation to be changed to Independent when the Libertarian Party ceased to be recognized, Okla.Stat. tit. 26, § 1-110, is not facially unconstitutional. However, the statute that prevents plaintiffs from re-registering as affiliates of the Libertarian Party, Okla.Stat. tit. 26, § 4-112, must yield to their constitutional rights of political association and speech. "Their" is underscored because § 4-112 may be perfectly proper as applied to a group lacking the "significant modicum." Oklahoma residents who wish to register as voters associated with the Libertarian Party are constitutionally entitled to do so.
Defendants have requested that the Court make other specific rulings designed to define clearly the limited nature of the right recognized by this Order. At defendants' request, the Court further orders as follows: A new category of voter exists that is neither affiliated with a recognized political party nor within the group designated as Independents under Okla.Stat. tit. 26, § 4-112. The political affiliation of voters in this category may be denominated by defendants as a "political organization," meaning an organization (political group) that has been recognized as a political party by the State of Oklahoma but thereafter has failed to retain this status by garnering the statutory percentage of votes for its candidates. The duration of a group's status as such an organization will not be indefinite; it will terminate after two election cycles, that is, four years from the date that the group is decertified as a political party by the State Election Board pursuant to Okla. Stat. tit. 26, § 1-109.[1] A group can regain this status only by again becoming a recognized political party through petition, and then losing recognized party status by failing to get the statutory percentage of votes. This part of the Order is designed to assure that the "significant modicum" is present.
When such an organization is created by decertification of a recognized political party, all voters registered as affiliates of the political party may properly be designated as Independents pursuant to Okla.Stat. tit. 26, § 1-110. Individual voters may then change *1270 their registration to reflect their affiliation with the organization if they so desire. Voters who register such an affiliation are not Independents. They cannot participate in nomination of candidates of recognized political parties, whether or not a political party allows independent voters to participate in its primary elections. The organization has no right under this Order to run a slate of candidates for office, to conduct primary elections, or to have name recognition on any ballot. These things may be done only if it succeeds in the petition process set out in Oklahoma statutes. An affiliated voter cannot file as an Independent candidate for political office. Registration of a voter's affiliation remains subject to other generally applicable restrictions imposed by Oklahoma law.
The Oklahoma State Election Board shall be responsible for communicating the terms of this Order to county election boards and for training and educating their personnel in its implementation. This Order does not prevent the State of Oklahoma from amending its statutory provisions so long as amendments are consistent with the Order's import. The Oklahoma Legislature may, but need not, afford an organization such as the Libertarian Party greater rights than are stated in this Order. Any disagreement concerning implementation of this Order shall be addressed first by the Oklahoma State Election Board, which will have a reasonable amount of time to respond. The effective date of this Order is January 1, 1999.
Judgment will be entered in accordance with this Order. Plaintiffs' request for an award of attorney's fees under 42 U.S.C. § 1988 must be made by separate motion filed in accordance with Fed.R.Civ.P. 54(d)(2) and LCvR54.2.
NOTES
[1] This duration is proposed by plaintiffs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420315/ | 235 S.W.2d 226 (1950)
YEAGLE et al.
v.
BULL.
No. 12169.
Court of Civil Appeals of Texas, San Antonio.
November 15, 1950.
Rehearing Denied January 10, 1951.
*227 Pichinson, Davis & Hale and Norman L. Utter, all of Corpus Christi, for appellants.
John H. Miller, Sinton, Fischer, Wood, Burney & Glass, Corpus Christi, for appellee.
POPE, Justice.
This is an appeal from an order overruling appellants' plea of privilege.
Appellant Mrs. M. H. Yeagle in 1947 was divorced from John B. Bull by the 36th District Court of Bee County. The decree at that time adjudicated custody and support matters as to the only child born of this union. On December 3, 1949, appellee, John B. Bull, filed an application in the original divorce suit in Bee County seeking a reduction in the amount of the support payments. During April, 1950, after a hearing, the court ordered some reductions in the amount of support. Custody was not brought in issue in this proceeding, but on April 24, 1950, appellee, John B. Bull, filed a pleading in the same divorce action, urging still further reductions in support payments and asking for changes in the original decree as to permanent custody. Appellant Mrs. Yeagle, joined by her husband M. H. Yeagle, filed a plea of privilege to be sued in Nueces County, which admittedly was her residence. Upon an agreed statement of facts, the trial court overruled the plea of privilege and retained venue in Bee County, both as to support and custody.
Appellee contends that since the proper place for an adjudication of support is in Bee County, and since custody may properly be joined with a support hearing, the entire cause may be tried in Bee County to avoid multiplicity of suits.
Appellee properly commenced his action for change of support orders in the court originally hearing the cause. It was not until evidence had been heard and a ruling obtained that he injected the matter of custody changes into the hearing. The plea of privilege was admittedly made at the earliest possible time, and under these facts the appellant is entitled to be sued in Nueces County, the county of her residence.
By statute, jurisdiction to effect readjustments in support orders is explicitly restricted to the original divorce court. Art. 4639a, Vernon's Ann.Civ.Stats.; Williams v. Williams, Tex.Civ.App., 183 S.W.2d 260. A hearing to readjudicate support is treated as a continuing cause of action rather than a new and independent cause of action. Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601, Com.App., reversing Wilson v. Underhill, Tex.Civ.App., 131 S.W.2d 19.
Change of custody, on the other hand, is treated as a new and independent cause of action with the venue placed in the county of the respondent's residence. Spell v. Green, 144 Tex. 535, 192 S.W.2d 260; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Castleberry v. Castleberry, 134 Tex. 409, 135 S.W.2d 701, Com.App.; Quick v. Lindsay, Tex.Civ.App., 208 S.W.2d 910; Boyd v. Crabb, Tex.Civ.App., 205 S.W.2d 606.
Support and custody are distinct and unrelated matters with different rules controlling *228 where they may be tried. This frequently compels separate trials. Cf. Ex parte Roberts, 139 Tex. 644, 165 S.W.2d 83; Ex parte Taylor, 137 Tex. 505, 155 S.W.2d 358. Actually, custody and support are intimately related and inextricably interwoven. The amount of support required of a father often depends upon whether his custody privileges be great or small. While a parent's duty to support does not depend upon his enjoyment of his child's custody; nevertheless, during the period he has custody, almost invariably there is a reduction in or termination of his support payments. When he surrenders custody, the amount of his support payments again commence or increase. Other things being equal, the availability of support sometimes necessarily controls the decision as to the award of custody. Wilson v. Underhill, Tex.Civ.App., 131 S.W.2d 19. Moreover, as is in the instant case, after the hearing in Bee County on the matter of support, appellee may proceed in Nueces County to redetermine custody. This may require a third hearing in Bee County to adjust the support in line with any changed custody. This was the effect of the holding in the Williams case in which the judgment was affirmed in part because the custody matter was heard in the proper county, but was reversed and rendered in part because the matter of support was heard in the wrong county.
Mr. Justice Young in Wilson v. Underhill [131 S.W.2d 23], correctly stated that "custody is properly incident to support, or vice versaone a necessary complement to the other * * *", but Article 4639a would not permit such a result. Wilson v. Wilson, 137 Tex. 528, 155 S.W.2d 601. The time of his prediction that this anomalous situation may result in judicial confusion and conflict, and hinder the maximum beneficial operation of statutes concerning children and families, has now arrived. Such results are contrary to sound sociology and the greater weight of American authority, Emrich v. McNeil, 75 App.D.C. 307, 126 F.2d 841, 146 A.L.R. 1153.
Notwithstanding this unrealistic approach to the vital matter of family relations, the Legislature, by including within Article 4639a, provisions relating to changed orders for support and excluding provisions relating to the complementary matter of custody, manifests, as has been frequently held, a legislative intent to treat the proceedings as disconnected, separate, unrelated and independent.
The trial court's judgment overruling the plea of privilege insofar as it relates to a trial on child support is affirmed, and insofar as it relates to a trial on child custody is reversed and remanded with instructions to transfer the case to Nueces County. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420281/ | 235 S.W.2d 13 (1950)
TROTTER et al.
v.
CITY OF MARYVILLE et al.
Supreme Court of Tennessee.
December 9, 1950.
*15 Goddard & Gamble, Maryville, for complainants.
Hugh E. Delozier, John C. Crawford, Jr., Maryville, for defendants.
BURNETT, Justice.
The validity of Chapter 183 of the Public Acts of 1945, now carried in the Code as Sections, 4406.102 to 4406.126, is attacked in this case, (1) on the ground that the Act violates Article 2, Section 17, of the Constitution, which provides that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title. The bill also seeks an adjudication as to the validity of said Act insofar as it changes the charter provision of the City of Maryville with reference to calling and holding elections in that City.
The caption of the Act is:
"AN ACT authorizing incorporated cities and incorporated towns of this State to construct, acquire, improve, extend, operate and maintain public works, undertakings and projects; prescribing the mode of procedure for and regulating the issuance and sale of bonds and other obligations to finance such works, undertakings and projects; providing for the payment of such bonds and other obligations; and authorizing agreements with the holders of such bonds and other obligations."
The body of the Act sets forth a complete scheme whereby Cities and Towns of the State may erect public works projects; whether or not bonds are required to be issued to finance the project (in specified instances the City body may authorize the issuance of bonds and in other instances this issuance of bonds must be submitted to a vote of the people) and the resolution necessary to be passed in either instance; when an election by the people on an issuance of bonds for public works is required the form of the election resolution and the procedure for election to authorize the bonds; limitation on number of the elections; tax resolution for payment of the bonds; bond provisions; when the bonds are a general obligation of the municipality etc. Suffice it to say, that in our judgment the Act incorporates within itself a complete scheme for the specific purpose of authorizing municipalities to erect public works and to pay for them in various ways, by either the issuance of bonds by the City fathers or submit the matter to the vote of the people and if the people vote favorably then the bonds are issued. In other words, it a general Act applying to all municipalities within the State relating to a specific and a primary purpose.
It is argued that since the Act provides in the body thereof for a scheme of determining whether or not the qualified voters are in favor of the issuance of bonds that this provision in the Act applying to elections in such instances is not germane to *16 the caption or title of the Act. It is said that this provision, relating to the election, is changing the election laws of the State and setting up a new and novel way of holding an election and is thus not germane to the caption. It is primarily the argument on behalf of the appellants that since the section of the Act relating to the holding of a bond election was different from that as prescribed by the general law and as to the charter of the City of Maryville that thus the Act in its body contained two subjects and was therefore unconstitutional and in violation of Article 2, Section 17 of the Constitution.
We cannot agree with this theory and contention.
"The two-subject clause of the Constitution was intended to prevent a combination in the same act of laws upon wholly different subjects; to avoid the union of incongruous matters in one statute; to secure unity of purpose in legislative enactments." Bell v. Hart, 143 Tenn. 587, 223 S.W. 996.
In Davis v. Hailey, 143 Tenn. 247, 252, 227 S.W. 1021, 1022, this Court speaking through the late Chief Justice Green said:
"So far as section 17, article 2, is concerned, if the various provisions of an act are directed toward a common purpose, and that purpose is expressed in the title, it would make no difference if the several provisions of the act involved all powers of the Legislature. This section of the Constitution regulates the syntax of statutes. It imposes no restriction upon the powers exerted, nor upon the commingling of such powers, so long as the provisions of the statute are not incongruous and are germane to the subject expressed in the caption."
The one purpose of the Act under attack is to authorize the various municipal governments of the State to construct public works. Accomplishment of such a single purpose necessarily requires that bonds be issued. It is perfectly proper for the legislature, who gives the municipal government birth in the first instance, to prescribe a scheme and way whereby the municipal government can issue these bonds and get the money to pay for these public works. The Act has no other purpose. The purpose of the Act is a single purpose. Merely because various and sundry ways of accomplishing this purpose, and prescribing the means and methods of doing so, are incorporated in the Act does not give the Act a dual purpose.
"Plurality of the title is not an objection when the several plural provisions deal with, and by necessary construction are but, constituent parts of one subject." Kizer v. State, 140 Tenn. 582, 589, 205 S.W. 423, 425.
The point we are attempting to make was very well stated in the Kizer case, supra, thus:
"The unity of the subject is to be looked for in the ultimate object of the statute; it cannot with reason be held that each step towards the accomplishment of an end or object should be embodied in a separate act, and so long as the steps are of the same general nature and legitimately parts of one system, end, or object, the act is constitutional."
The City fathers of the City of Maryville unanimously passed a resolution authorizing the issuance of School bonds not to exceed the sum of Three hundred thousand ($300,000.00) dollars. This resolution was passed in conformity with the applicable provision under the legislative act attacked. After the passage of this resolution steps notifying the people of Maryville of the proposed bond issue for the purpose of erecting schools was duly given. Other notices, etc., were given in compliance with the provision of the Act in question.
The Chancellor held the Act constitutional "since it embraces one subject and that subject is contained in the title." He went further and held that since the people who vote in Maryville must be registered and that the registration books must be open twenty days before the election for the purpose of permitting them to register, this registration must be carried out; that since the Act did not provide that such registration might be carried out, this provision *17 of the Act was unconstitutional. He was also of the opinion that since no provision was made in the Act to allow nonresidents of the City of Maryville to vote in the election (the City charter allowed those owning property in Maryville to vote) that for this reason any election held would have been illegal. For these two reasons, namely, that no provision for registration was made prior to vote and that nonresidents owning property in the City were not allowed to vote under the call made for this bond election, the Chancellor held that the proposed election was illegal and thus entered a permanent injunction enjoining the election. The plaintiff has appealed and assigned error to the holding of the Chancellor that the Act was constitutional while the City has likewise filed assignments of error as to the holding of the Chancellor that the election was illegal for the reasons stated in his memorandum opinion.
From the argument made in open court, the briefs of counsel and the memorandum opinion of the Chancellor, it appears that the basis of his opinion was that since no specific reference was made to the charter of the City of Maryville or other laws applicable to voters in the City of Maryville in this Act, that then there was no repeal of these laws directly or by implication and that, therefore, the charter of the City of Maryville and the applicable statutory law as to registration were in effect; that since this election was called in compliance with the Act in question and did not comply with the charter of the City of Maryville or other applicable State registration laws that then the charter of the City of Maryville and the applicable registration law had precedence over the provisions of the Act here attacked. He based his reasoning on the case of Grubb v. Mayor and Aldermen of Morristown, 185 Tenn. 114, 203 S.W.2d 593. It is true in this case that the Chief Justice correctly and aptly again reiterated the law in reference to implied repeal but that is not the controlling point in the Grubb case. What the Chief Justice said in this case with reference to implied repeal was more or less in answer to arguments that were made in that case that the enactment of the general beer law impliedly repealed the authority of the City council of Morristown to enact an ordinance banning beer in that town. The real point in the Grubb case was that "the general beer law and also the charter of [the Town of] Morristown expressly authorized the passage of the ordinance in question." Grubb v. Mayor and Aldermen, supra [185 Tenn. 114, 203 S.W.2d 596].
The Grubb case was therefore not in point in the instant case.
Here we have a general statute, applicable to all municipalities within the State, enacted for the primary purpose of dealing with a particular subject prescribing terms and conditions covering the subject matter. When such a statute is passed the terms thereof supersede the general and special statutes which conflict therewith insofar as the carrying out of the purposes for which this special statute was passed. In other words, other statutes are not repealed but they are merely superseded for the carrying out of the purposes of the act, as the one here under attack.
"There is no rule which prohibits the repeal by implication of a special or specific act by a general or broad one. The question is always one of legislative intention, and the special or specific act must yield to the later general or broad act, where there is a manifest legislative intent that the general act shall be of universal application notwithstanding the prior special or specific act." 50 Am. Jur., sec. 564. See also Key v. Harris, 116 Tenn. 161, 92 S.W. 235, 8 Ann. Cas. 200.
One reading this Act can gain no other impression than that it was clearly the intention of the legislature to authorize the various municipalities in the State to erect various public works, embodied in the Act, and to authorize various procedural steps for the erection of these public works. That is exactly what the Act under attack did. A twin act to the Act under attack is the next succeeding chapter passed by the same legislature which applies to the various Counties of the State. Under this Act various and sundry private acts have been passed authorizing Counties to erect public *18 works, all of which so far as we know, have been held constitutional.
Where there is conflict between the Statute incorporating the City of Maryville and the Act in question the questioned Act must prevail. State ex rel. Weaver v. City of Knoxville, 182 Tenn. 510, 188 S.W.2d 329. In the instant case there is clearly a conflict between the general act and that incorporating or specifying the powers of the City of Maryville. The Act in question provides the rather simple and specific means whereby the City fathers may hold this bond election; provides for those who may vote therein as those qualified to vote (living in the City of Maryville) and qualified to vote for members of the General Assembly in the election next preceding. The charter of the City of Maryville allows those living outside the City but owning property in the City to vote on City matters. The same legislature that gave birth to the City of Maryville also, at a later date, passed the Act now in question and provided a different means but a means applicable to only those things as provided for in the Act now questioned, Public Works. We think clearly that this constitutes an implied repeal of those provisions of the charter of the City of Maryville which are contrary to those as set out in the Act questioned. When there is an irreconcilable conflict the special or specific provision supersedes, controls and prevails over the general or broad provision. State ex rel. v. Safley, 172 Tenn. 385, 112 S.W.2d 831. In other words, the holding of a bond election as specified in the questioned Act is an exception to the general or broad provision of the charter provisions of Maryville applying to the ordinary City elections. State ex rel. v. Safley, supra.
The legislature was presumed, when it passed the questioned Act, to know that the various and sundry charters of the other municipalities in the State had in them contrary provisions to those enacted in the questioned Act. The legislature is presumed to know what was in each of these Acts that had been theretofore passed. Consequently when they passed the present Act limiting in its terms to those who could vote in these bond elections to residents of the City, but who were qualified to vote for members of the General Assembly, then they are impliedly excluded, those others permitted to vote by the various and sundry charters of the different municipalities of the State. The charter provisions of the City of Maryville permit those living outside the City but owning property in the City to vote in City elections the questioned Act does not permit them to vote. This obviously is one of the main arguments as to why this provision of the Act is illegal. We cannot agree with this argument, because the right of suffrage is not given to an elector to determine whether a City shall issue bonds for school purposes or not. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417. The legislature generally has the right to determine the qualifications of the voters and to regulate the conduct of the election. Cook v. State, 90 Tenn. 407, 16 S.W. 471, 13 L.R.A. 183.
This right of control does not, and cannot, go beyond the limitation expressed in Article 1, Section 5 of the Constitution wherein it is provided in substance that the right of suffrage will not be denied any person, except on conviction, and applies only to the class of elections enumerated in Article IV, Section I of the Constitution wherein every male of certain qualifications may vote for members of the General Assembly, legislature and other civil offices in the district in which he resides. Clearly the limitation made in the Act now questioned does not contravene either of these sections of our State Constitution.
"The registration laws of the state do not prescribe qualifications of electors, but were enacted for the purpose of regulating the exercise of the elected franchise, and are authorized by the concluding clause of section 1, art. 4 of the Constitution, ordaining that the General Assembly shall have power to enact laws to secure the freedom of elections and the purity of the ballot box." State v. Weaver, 122 Tenn. 198, 201, 122 S.W. 465.
Thus our registration law "merely serves to identify them as a person *19 qualified to vote" and the law "is merely a mode of ascertaining and determining whether or not a man possesses the necessary qualifications of a voter". State v. Weaver, supra. It was not necessary for the legislature to incorporate in this Act, applicable to its special purposes, the requirement that the people be registered to vote and that registration should be opened at a certain time before the vote was cast. The legislature provided in the questioned Act that "Any resident citizen of the Municipality who was qualified to vote for members of the General Assembly at the General Election next preceding the date of the holding of such bond election, or who is, on the date of the holding of such bond election, then qualified to vote for members of the General Assembly shall be entitled to vote at such bond election." It is perfectly obvious from this qualification, as to who is entitled to vote in this bond election, that only those who were registered and qualified under the general law at the "General Election next preceding the date of the holding of such bond election, or who is, on the date of the holding of such bond election" is the one who is entitled to vote herein. By this Act no one is excluded who was qualified under our general laws to vote. If a person has not registered in time, or qualified himself in time to vote, then he can have no complaint because this is a personal privilege of which too many of our citizens do not avail themselves. By the Act under attack there is no let up or release of those voting from registering as required by our registration laws. As heretofore noted those qualified to vote for members of the General Assembly in the next preceding election prior to the date of calling the bond election were entitled to vote. Thus it will be seen that all of those are entitled to vote who were qualified to vote in the election immediately preceding except certain exceptional cases like those who had changed their residence etc. This Court in Moore v. Sharp, 98 Tenn. 491, 495, 41 S.W. 587, 588, held, among other things, that "if a person changes his residence within the ward or district after registration closes he thereby loses his vote." The Court in this case in commenting on this assignment inter alia quoted as follows:
"If voters choose to disregard the mandates of the law, they disfranchise themselves, and neither courts of justice entertaining contests over an election nor election officers declining to receive such votes can be accused of any disfranchisement of the voter who has lost his right by his own disregard of the law."
In Earnest v. Greene County, supra, this Court held that the legislature might authorize the issuance of bonds without requiring an election to be called. The Court commented that if the legislature saw fit to allow a limited electorate to vote upon the question no legal or constitutional right was violated. This case is, therefore, authority for the legislative enactment in the present questioned Act.
Where bonds are to be issued for public school purposes it is not required that an election be first had. Brittain v. Guthrie, 164 Tenn. 669, 51 S.W.2d 848.
Because certain of the parties attacking this legislation own property within the City of Maryville and live outside, is no legal reason why this Act cannot be enforced as drawn. The question presented was decided by this Court in King v. Sullivan County, 128 Tenn. 393, 160 S.W. 847, wherein people owning property within the corporate limits of certain towns in that County were required to pay taxes on their property in the City for the purpose of bonds issued for County roads. At the same time these people were required to pay taxes on the property within the City when the roads for which the bonds were issued were in the County and outside of the City. The reasoning in this case is somewhat applicable here.
After spending several days considering the excellent briefs herein, the authorities there cited, and reviewing many other authorities, we are satisfied that the Act in question is constitutional and the provisions thereof should be carried out to effect the purposes of the Act. It thus results that we hold the Act constitutional. We must reverse the decree of the chancellor *20 and hold that the election may be held in conformity with the Act. The costs of the cause are taxed against the appellants or the complainants in the lower court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420309/ | 22 F. Supp. 2d 1240 (1998)
Murt HANKS, Jr., Petitioner,
v.
Charles SIMMONS, et al., Respondents.
No. 96-3549-DES.
United States District Court, D. Kansas.
September 30, 1998.
*1241 Murt (nmn) Hanks, III, El Dorado, KS, pro se.
ORDER
SAFFELS, Senior District Judge.
Petitioner proceeds pro se on a petition for writ of habeas corpus, filed under 28 U.S.C. § 2254.[1]
Petitioner presents a confusing factual scenario as a backdrop for his claim of that the Department of Corrections is not handling his state sentence as required under the Kansas Sentencing Guidelines Act.
Petitioner's attempt to force compliance with state law through a federal writ of habeas corpus is misguided and premature. Absent a showing that state remedies are not available or that circumstances render such state corrective process ineffective to protect petitioner's rights, habeas corpus relief under § 2254 shall not be granted if it appears petitioner has not exhausted available state court remedies on the claims raised in the petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1) (as amended by the Prison Litigation Reform Act of 1996).
To satisfy this exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court had the opportunity to rule on the same claim presented in federal court, or that no state court remedies were available at the time petitioner filed his federal petition. Miranda v. Cooper, 967 F.2d 392 (10th Cir.), cert. denied, 506 U.S. 924, 113 S. Ct. 347, 121 L. Ed. 2d 262 (1992). See e.g. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir.1988) (presentation of claim to highest state court satisfies exhaustion requirement only if claim is presented in procedurally proper manner according to rules of state court); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985) (state habeas petition originally filed in state supreme court and denied without explanation did not exhaust state remedies where state supreme court's exercise of original jurisdiction was discretionary).
In the present case, petitioner provides a copy of a 1996 state district court order which relates that DOC has determined that petitioner is eligible for conversion of his sentence in three specified criminal cases. The state court further directed that if DOC failed to convert his sentence, petitioner was to seek relief through a state petition for writ of habeas corpus (K.S.A.60-1501) in the district of confinement, or through a state writ of mandamus.
There is no indication petitioner sought such relief in the state courts. Instead, it appears petitioner filed this federal habeas corpus action and cited these and other state statutes. As a result, whatever merit there may be to petitioner's claims, his failure to pursue state remedies in an appropriate manner precludes relief in federal court under § 2254.[2]
Because there is nothing in the record to demonstrate that petitioner has exhausted state court remedies on his claim, the court *1242 finds this matter should be dismissed without prejudice to allow petitioner the opportunity to do so.
IT IS BY THE COURT THEREFORE ORDERED that this action is hereby dismissed without prejudice.
NOTES
[1] Petitioner also cites Kansas habeas corpus, mandamus, and declaratory judgment statutes, but these state statutes provide no basis for federal habeas corpus jurisdiction.
[2] Likewise, petitioner's demand for damages also is premature. See Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (damages premature where the alleged unconstitutional imprisonment has not been overturned). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2420337/ | 417 S.W.2d 180 (1967)
Dr. L. SCHECTER, Appellant,
v.
Robert S. FOLSOM, Appellee.
No. 16907.
Court of Civil Appeals of Texas, Dallas.
May 12, 1967.
Rehearing Denied June 23, 1967.
*181 Wade Starr and Barnett M. Goodstein, Goodstein, Erlanger & Starr, Dallas, for appellant.
Mike Schmidt, of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
DIXON, Chief Justice.
Dr. L. Schecter has appealed from a judgment against him in favor of Robert S. Folsom for the sum of $540 principal for rentals alleged to be due plus $350 attorney's fees under the terms of a written lease contract.
In April 1965 appellant and appellee signed a written lease agreement for a term of 25 months beginning July 1, 1965 at a monthly rental of $172.50. The lease covered premises in Dallas West Shopping Center for use by Dr. Schecter as his office in the practice of optometry. Under circumstances which are in dispute appellant moved into the premises on May 3, 1965, prior to the date named in the lease contract, but he paid no rent for the months of May and June 1965.
On November 5, 1965 appellant notified appellee that he would vacate the premises on November 10, 1965. He had paid his rent up to December 1, 1965. Appellant's testimony is that he did vacate the premises on November 10, 1965.
On December 9, 1965 appellee's agent sent a letter by certified mail to appellant in regard to the latter's failure to make his rental payment due December 1st. This letter as we view the matter is the focal point of this controversy.[1] The letter threatened a forcible entry and detainer suit by appellee, but no such action was ever filed.
Some time in March 1966 or soon thereafter appellee filed this suit seeking recovery of rentals for the months of December 1965, and January and February 1966. The premises had been relet thereafter and no claim is made for subsequent rent.
Appellant filed an answer and a counterclaim in which latter pleading he alleged actual damages of $500 and exemplary damages of $1,000 as a result of appellee's failure to carry out the terms of the lease agreement and for recovery of $172.50 for advance rental paid appellee.
In his first and second points on appeal appellant asserts that the court erred (1) in holding that appellee's letter of December 9, 1965 was not an exercise of appellee's *182 option to terminate the lease; and (2) in finding that appellee exercised his option in accordance with the second section of paragraph 16 of the lease.[2]
The trial court made findings among others to the effect that appellant failed to perform the terms of the lease contract and was in default for the months of December 1965, and January and February of 1966; that plaintiff-appellee exercised his option in accordance with the second section of paragraph 16 of the contract and relet the premises for the account of appellant-defendant; that the letter of December 9, 1965 was not a declaration by appellee-lessor to declare the lease forfeited and did not evidence such intent; and that there was no intention on the part of appellee-plaintiff that appellant-defendant should no longer enjoy the leased premises and no circumstances presented to the court from which such intention might be inferred. In our opinion the evidence supports the above findings.
Appellant relies on the holding in Rohrt v. Kelley Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961) to support his first two points on appeal. In the Rohrt case the lease contract contained provisions similar to those of paragraph 16 in the lease contract now before us. The lessor had written a letter to the defaulted lessee giving him "official notice of such default and the intention of the lessor to declare the lease forfeited." It was held that the effect of the above letter, coupled with the failure of lessee to cure his default within ten days, resulted in a forfeiture of the lease; and it is stated in the opinion the lessor "did forfeit." As a result lessee was relieved of liability for future rentals.
In the letter which we are considering in this case the lessor did not say that it was his intention to forfeit the lease. He said it was his intention to "institute Court action for forcible entry and detainer." However, appellee-lessor did not institute court action for forcible entry and detainer.
Appellant takes the position that appellee's statement in his letter of his intention to file a forcible entry and detainer suit is equivalent to the statement of the lessor in the Rohrt case that he intended to declare the lease forfeited. This is so, says appellant, since a prerequisite to a court action for forcible detainer is a termination of the lease agreement, either by expiration of term or forfeiture by lessor. Therefore appellant argues that the instant case comes squarely within the holding in the Rohrt case and precludes appellee from recovering any rentals after ten days from December 9, 1965.
Appellee vigorously disputes appellant's argument. He says that this announcement of his intention to file a forcible entry and detainer suit if lessee's default was not cured was nothing more than a "conditional warning or notice" that this mode of enforcing the lease agreement would be pursued if necessary. Appellee argues that it it apparent that the defaulting appellant would have to be completely out of the premises before appellee could relet for appellant's account under the terms of the lease. Such was the purpose of the letter according to appellee. Since appellant did completely vacate the premises the forcible *183 detainer suit became unnecessary. In the Rohrt case it was said that the landlord not only gave notice of his intention to forfeit: he did forfeit.
In further support of his contention appellee cites Johnson v. Golden Triangle Corp., 404 S.W.2d 44 (Tex.Civ.App., Waco 1966, no writ) where a letter threatening forfeiture was held to be only "a conditional notice or warning" that lessor intended to declare a forfeiture and did not end the lessee's liability. In so holding the Rohrt case was cited.
We agree with appellee. We do not consider that his threat to file a forcible entry and detainer suit which was never filed, constituted notice of forfeiture as contemplated in paragraph 16 of the lease agreement. Appellant's first two points are overruled.
In his third, fifth, sixth and seventh points appellant asserts the court erred in (3) finding that there was no constructive eviction of appellant by appellee; (5) finding that appellee was the owner of Dallas West Shopping Center; (6) finding that appellant did not elect to terminate the lease under provision 30 of the lease agreement; and (7) failing to consider evidence to substantiate appellant's allegations that appellee breached the lease agreement by failing to repair the leaking roof and by failing properly to clean and maintain the common area of the shopping center.
Appellant cites the case of Richker v. Georgandis, 323 S.W.2d 90, 95 (Tex.Civ. App., Houston 1959, writ ref'd n.r.e.), wherein the four elements of constructive eviction are set out. The testimony in this case is at best conflicting in regard to the four elements necessary to show a constructive eviction. There is ample evidence to support the court's finding.
It is undisputed that the relationship of landlord and tenant existed between appellee and appellant. That being so appellant will not be heard to deny the landlord's title to the leased premises. In a suit for rentals it is not necessary for a landlord to prove ownership of the premises. See 35 Tex.Jur.2d 514, 519 and cases there cited.
Provision 30 of the lease gave lessee the right to cancel the lease in the event of death or total disability. The evidence supports the court's finding that the facts did not entitle appellant to exercise this right. After leaving the leased premises appellant was out of work one week. Then he went to work for another optometrist and has been making $15,000 per year ever since.
The evidence in regard to the leaking roof and the alleged failure to maintain the area of the shopping center is conflicting. The court's implied finding against appellant is binding on us.
Appellant's third, fifth, sixth and seventh points are overruled.
Appellant's fourth point we must sustain. There was no evidence offered to show that the $350 attorney's fee was reasonable. Appellee says that in a nonjury trial the court may take judicial notice of what would be a reasonable attorney's fee, citing Franklin Life Ins. Co. v. Woodyard, 206 S.W.2d 93 (Tex.Civ.App., Galveston 1947, no writ) and other cases.
Our Supreme Court in Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 held that a court does not have authority to adjudicate the reasonableness of an attorney's fee on judicial knowledge without the benefit of evidence. Though the Supreme Court was considering an insurance case involving Art. 3.62 of the Texas Insurance Code, V.A.T.S. we think the holding there must control our holding here. See also Reynolds Research & Mfg. Co. v. Scamardo, 412 S.W.2d 941 (Tex. Civ.App., Waco 1967). Appellant's fourth point is sustained.
The Supreme Court in the Great American Reserve case held that the judgment *184 for attorney's fees is severable from the rest of the judgment. Accordingly the claim for attorney's fees was severed and the judgment reversed as to attorney's fees only. We shall do the same in this case.
The judgment in favor of appellee for $540 for rentals is affirmed as is the judgment denying appellant any recovery on his counterclaim. The judgment for $350 attorney's fees is reversed and remanded for another trial.
Costs will be taxed 75 per cent against appellant and 25 per cent against appellee.
Affirmed in part and reversed and remanded in part.
NOTES
[1] The letter is as follows:
"I have been advised by our accounting department that you have failed to pay your rent for December, 1965. Your attention is directed to the clause entitled `Default' in the Lease which you executed on April 6, 1965, in the Dallas West Shopping Center. This clause places you in default for failure to pay said rent in accordance with the terms of the Lease.
"We hereby place you on notice that unless said default is cured by you within ten (10) days of your receipt of this notice, we will then institute Court action for forcible entry and detainer."
[2] In the event appellant defaulted in performance of his base contract paragraph 16 gave appellee two alternative options:
1. "* * * LESSOR may enforce the performance of this lease by any modes provided by law, and/or this lease may be forfeited at LESSOR'S discretion if such default continues for a period of ten days after LESSOR notifies said LESSEE of such default and his intention to declare the lease forfeited * * *; and thereupon (unless the LESSEE shall have completely removed or cured said default) this lease shall cease and come to an end * * *;"
2. "or LESSOR * * * may resume possession of the premises and re-let the same for the remainder of the term * * * for account of LESSEE * * *."
The two sections are not numbered in the lease contract. The numbers have been added for convenience as was done in appellant's brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2422113/ | 200 F. Supp. 2d 1302 (2002)
Chris and Josephine GARCIA, Plaintiffs,
v.
FLEETWOOD ENTERPRISES, INC., a Delaware corporation, Fleetwood Travel Trailers of California, Inc., a California corporation, and Reese Products, Inc., an Indiana corporation, Defendants.
No. CIV.99-0382LH/DJS.
United States District Court, D. New Mexico.
January 28, 2002.
Randi McGinn and Allegra C. Carpenter, McGinn & Carpenter P.A., Albuquerque, NM, for Plaintiffs.
Kenneth L. Harrigan, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendant Reese Products, Inc.
*1303 MEMORANDUM OPINION AND ORDER
HANSEN, District Judge.
THIS MATTER comes before the Court on the Motion in Limine by Defendant Reese Products, Inc. to Exclude Evidence of Post Accident Changes (Docket No. 195), filed November 19, 2001. The Court, having considered the Motion, the memoranda of the parties, the argument of counsel at the Pretrial Conference on January 25, 2002, and the applicable law, and otherwise being fully advised, finds for the reasons set forth on the record at the continuation of the Pretrial Conference on January 26, 2002, and for the reasons that follow that the Motion is well taken in part and will be granted in part.
In this diversity action Plaintiffs bring claims of negligence, strict products liability, and breach of warranty for injuries suffered while attempting to hitch their fifth-wheel trailer to their truck. Subsequent to the accident, Defendant Reese Products, Inc. (Reese) changed the instructions and warnings for its hitch and also upgraded the capacity of the hitch from 14,000 to 15,000 pounds. In its Motion Reese seeks to exclude evidence of subsequent remedial measures under FED. R. EVID. 407. Plaintiffs, also arguing under the federal rule, respond that the new instructions and warnings are admissible to show feasibility and for impeachment purposes.
Pursuant to Tenth Circuit precedent, however, the admissibility of subsequent remedial measures is a matter of state, not federal, law. See Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (1984). As the Moe court noted, "[t]he purpose of Rule 407 is not to seek the truth or to expedite trial proceedings; rather, in our view, it is one designed to promote state policy in a substantive law area." Id. at 932. Thus,
[W]hen state courts have interpreted Rule 407 or its equivalent state counterpart, the question of whether subsequent remedial measures are excluded from evidence is a matter of state policy. ... If a state has not announced controlling rules, such as New Mexico, Herndon [v. Piper Aircraft Corp., 716 F.2d 1322 (10th Cir.1983)], the federal court, sitting as a state court in a product liability diversity case, must determine whether Rule 407 applies.
Id.
In 1997, federal Rule 407 was amended specifically to include products liability cases, in addition to actions in negligence:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
FED. R. EVID. 407 and advisory committee's notes (1997 Amendments). New Mexico, however, whose rule prior to 1997 was exactly the same as the federal rule, has not adopted the 1997 changes:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or *1304 feasibility of precautionary measures, if controverted, or impeachment.
N.M. R. ANN. 11-407. There does not seem to be any New Mexico or Tenth Circuit case law addressing whether New Mexico Rule 11-407 applies to product liability cases. The Court so informed counsel at the Pretrial Conference on January 24, 2002. Reese submitted supplemental briefing on January 25, 2002, and the Court also heard argument by counsel for Reese and Plaintiffs on that date.
Although there is no direct controlling authority of which the Court is aware, in Yardman v. San Juan Downs, Inc. the New Mexico court of appeals cited two cases for the proposition that "one of the basic purposes of SCRA 11-407 is to encourage a party to initiate and implement steps to promote safety by removing the disincentive to make repairs or modifications following an accident, which would otherwise exist if the accident victim could readily introduce evidence of such changes as evidence of a defendant's negligence." 120 N.M. 751, 758, 906 P.2d 742, 749 (1995)(citing Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir.1986); Flaminio v. Honda Motor Co., 733 F.2d 463, 469 (7th Cir.1984)). Both Probus and Flaminio discussed FED. R. EVID. 407 subsequent remedial measures in relation to products liability claims, not negligence. The Flaminio decision also includes citation to and considerable discussion of both Herndon v. Piper Aircraft Corp., 716 F.2d 1322 (10th Cir.1983), and Moe for the propositions that Rule 407 does not apply to strict liability cases and that state law rather than federal law applies to this question. As it appears the Yardman court did, this Court finds the reasoning and conclusion of the Seventh Circuit compelling:
[W]e agree with the majority view that the rule does apply to strict liability cases. We are not persuaded by the purely semantic argument to the contrary that since "culpable conduct" is not the issue in [a strict liability] case-the defendant is liable, at least prima facie, even if he is not blameworthy in the sense of being willful or negligent, provided that he caused the plaintiff's injury-the rule is inapplicable by its own terms.... A major purpose of Rule 407 is to promote safety by removing the disincentive to make repairs (or take other safety measures) after an accident that would exist if the accident victim could use those measures as evidence of the defendant's liability....
The analysis is not fundamentally affected by whether the basis of liability is the defendant's negligence or his product's defectiveness or inherent dangerousness. In either case, if evidence of subsequent remedial measures is admissible to prove liability, the incentive to take such measures will be reduced.... [T]he focus of negligence is on the defendant's conduct, but the focus of strict liability is on the dangerousness of the product regardless of the defendant's conduct.... But this distinction does not justify a refusal to apply Rule 407 in product cases. In those cases where the defendant would have no incentive to take remedial measures anyway, because the accident was unavoidable, Rule 407 is academic; there will be, by assumption, no subsequent remedial measures. But in other cases, ... the injurer would be held liable on a theory of strict liability even though the accident could have been avoided at reasonable cost by taking more care. Especially in a product case, the accident may have been readily avoidable either by eliminating some defect or by warning the consumer of some inherent danger, and in such a case the failure to apply Rule 407 might deter subsequent remedial measures just as much as in a negligence case....
*1305 ... It is true that the benefits of subsequent remedial measures to the defendant in avoiding future accidents and their associated liability costs are greater, the larger the scale of the defendant's activity; but, by the same token, the costs of those measures to the defendant, in making it more likely that he will be forced to pay damages for accidents that occurred before the measures were adopted are also greater. The effects of scale are symmetrical.
Flaminio, 733 F.2d at 469-70. Therefore, the Court finds that New Mexico Rule of Evidence 11-407 does apply to product liability cases.
This, however, still leaves the question of the application of the exceptions to the rule: "This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." N.M. R. ANN. 11-407. Plaintiffs contend that Reese's experts have controverted the feasibility of improving the decal, thereby allowing them to present evidence of the decals Reese subsequently added to the hitch. Plaintiffs also maintain that Reese's subsequent remedial measures are admissible for impeachment.
The Court has carefully considered the deposition testimony of Reese's experts and finds that they did not controvert the feasibility of precautionary measures with regard to the decals. Plaintiffs may bring up the impeachment exception at trial, depending upon the testimony received. The Court notes, however, the observation in Yardman that
the impeachment exception "must be applied with care, since `any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a party's testimony that he was using due care at the time of the accident.... If this counted as "impeachment" the exception would swallow the rule.'"
120 N.M. at 758, 906 P.2d at 742 (internal alterations omitted)(quoting Pub. Serv. Co. of Ind. v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th Cir.1985)(quoting Flaminio, 733 F.2d at 468)).
IT IS HEREBY ORDERED that the Motion in Limine by Defendant Reese Products, Inc. to Exclude Evidence of Post Accident Changes (Docket No. 195), filed November 19, 2001, is GRANTED IN PART. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423135/ | 13 A.3d 1043 (2011)
Andrew A. LANG, Jr., Appellant
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION.
Commonwealth Court of Pennsylvania.
Submitted on Briefs December 23, 2010.
Decided February 18, 2011.
*1044 Maurice A. Nernberg, Pittsburgh, for appellant.
Andrew S. Gordon, Chief Counsel, William J. Cressler, Asst. Chief Counsel and Chester J. Karas, Jr., Sr. Asst. Counsel, Pittsburgh, for appellee.
BEFORE: LEADBETTER, President Judge, SIMPSON, Judge, and BROBSON, Judge.
OPINION BY Judge SIMPSON.
In this eminent domain case, Andrew A. Lang, Jr. (Lang) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that sustained the Department of Transportation's (DOT) preliminary objections to Lang's petition for the appointment of a board of viewers (petition for viewers) alleging a de facto taking occurred prior to DOT's filing of a declaration of taking. Lang contends DOT waived its objection to his petition, and the trial court erred in holding Lang waived his de facto claim because he did not file preliminary objections to the declaration of taking. We affirm.
In March, 2009, DOT, in order to widen State Route 28, filed a declaration of taking condemning real property in Millvale, Allegheny County. Lang, owner of the condemned property, popularly known as the Millvale Industrial Park (the Property), did not file preliminary objections challenging any aspect of DOT's taking.
In July, 2009, Lang filed a petition to pay estimated just compensation. The same day, the trial court, through the Honorable Robert J. Colville, entered an order (First EJC order) that granted the petition and directed DOT to pay Lang $2,000,000 as estimated just compensation "without prejudice to [Lang's] claim to prove either an earlier date of possession or de facto taking." Reproduced Record (R.R.) at 60a. Six days later, Judge Colville entered a second order (Second EJC order) directing DOT, within 35 days, to pay Lang $2,000,000 less funds directed to the appropriate mortgagees and lienholders. The Second EJC order also provided, "All other matters including the date of possession and date of taking are preserved for later resolutions." Id. at 45a, 61a. DOT objected to the 35-day time limit, but not to the part of the order preserving all other issues. In August, 2009, DOT paid Lang.
In October, 2009, in a separate action, Lang filed a petition for viewers alleging that pre-condemnation activity and publicity regarding the Route 28 project constituted a de facto condemnation of the Property prior to the formal condemnation. DOT filed preliminary objections to Lang's petition alleging, among other things, Lang waived his right to claim a de facto taking by not doing so in preliminary objections to the declaration.
In April, 2010, the trial court, through the Honorable Michael A. Della Vecchia held a hearing on DOT's preliminary objections. The parties agreed to limit argument to the issue of whether Lang waived his de facto claim by failing to file preliminary objections to the declaration of taking. *1045 After argument, and a review of the briefs and record, Judge Della Vecchia sustained DOT's objections and dismissed Lang's petition for viewers with prejudice.
In an opinion in support of its order, the trial court recognized the Eminent Domain Code (Current Code)[1] provides that preliminary objections are the exclusive method of challenging condemnation proceedings. See 26 Pa.C.S. § 306(a). Failure to do so shall constitute a waiver. 26 Pa.C.S. § 306(b). The trial court also relied on this Court's decision in Nelis v. Redevelopment Authority of Allegheny County, 12 Pa.Cmwlth. 338, 315 A.2d 893 (1974) (Nelis II). In Nelis II, we held the issue of whether a de facto taking occurred prior to the filing of a declaration of taking, if not previously raised, must be raised by preliminary objection to the declaration. Failure to do so constitutes a waiver of the right to subsequently raise the issue. Id. Lang appeals.[2]
Issues
Lang states two primary issues. He contends DOT waived its objection to his de facto claim by not objecting to the part of the Second EJC order preserving all other matters, including the date of possession and date of taking, for later resolution. He asserts the two EJC orders established his right to prove a de facto taking occurred prior to the filing of the declaration. Lang also contends Nelis II is no longer "good law;" therefore, the trial court erred in determining his failure to file preliminary objections to DOT's declaration of taking barred his claim for a de facto taking.
Discussion
Waiver; Adjudications
Lang first argues the EJC orders in the formal condemnation proceeding, entered more than 30 days after DOT filed its declaration of taking, established his right to prove a de facto taking occurred prior to the declaration even though he did not file preliminary objections to the declaration. Also, he contends DOT, by not objecting to the issue preservation sentence in the Second EJC order, waived its right to file preliminary objections to his petition for viewers in his de facto claim.
Lang further argues the EJC orders that preserved the issues of the date of possession and date of taking constituted "previous adjudications" that guaranteed his right to prove an earlier de facto condemnation. He references Section 306(a)(3) of the Current Code, 26 Pa.C.S. § 306(a)(3), which provides (with emphasis added):
Preliminary objections shall be limited to and shall be the exclusive method of challenging:
(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
Lang's argument is as follows. The EJC orders authored by Judge Colville intended to preserve the issue of the date and manner of taking. Although DOT objected to the 35-day period for payment in *1046 the Second EJC order, DOT did not object to the part of the order preserving the issue of the date and manner of taking. The Second EJC order therefore constitutes an adjudication establishing his right to prove a de facto condemnation prior to the formal condemnation.
As support, Lang cites Section 306(a)(2) of the Code, which provides: "The court upon cause shown may extend the time for filing preliminary objections." 26 Pa.C.S. § 306(a)(2). Lang argues the two EJC orders obviously intended to extend the time for filing preliminary objections.
We disagree. In its Rule 1925(c) opinion, the trial court interpreted the ECJ orders in the formal condemnation proceeding as directing DOT to pay Lang $2,000,000 in estimated just compensation, without prejudice to assert a prior de facto taking. Trial Ct. Slip Op., 07/27/10, at 4. The EJC orders provided Lang with an opportunity to argue for a de facto taking, but the court found that Lang failed to raise the issue "at the proper time or in the proper cases." Id. The orders did not guarantee Lang success in his de facto claim or obviate the need for him to follow the required procedure in the appropriate legal action. Id. "A trial court is entitled to great deference in the interpretation of its own orders." Commonwealth v. Lebo, 713 A.2d 1158, 1161 (Pa.Super.1998). An appellate court's review of a trial court's actions relies heavily on the trial judge's discretion and reversal only occurs where a clear abuse of that discretion is indicated. Id.
Here, the EJC orders merely permitted Lang to receive payment of estimated just compensation without prejudice to assert that a de facto taking occurred prior to the declaration, within the formal condemnation proceeding. The EJC orders cannot be considered "previous adjudications" regarding DOT's power or right to condemn the Property for purposes of 26 Pa.C.S. § 306(a)(3)(i). Indeed, they did not even address that issue. Any reliance on that provision is unsupportable. As a result, the EJC orders did not waive the requirement that Lang file preliminary objections to the declaration.[3]
Further, contrary to Lang's assertion, the EJC orders did not extend the statutory time allotted for filing preliminary objections to the declaration. Moreover, the trial court limited Lang's right to assert a de facto taking occurred before the formal condemnation proceeding. Trial Ct. Slip Op., 07/27/10, at 4. Lang never filed preliminary objections to the declaration. Consequently, the trial court did not err in dismissing Lang's de facto claim, regardless of the EJC orders. Nelis II.
Nelis Decisions
Lang next argues Nelis II, relied upon by Judge Della Vecchia, does not stand for the proposition that failure to file preliminary objections to a declaration of taking waives the right to a claim that a de facto taking preceded the declaration.
At this juncture, a short review of the Nelis decisions is helpful. In Nelis v. Redevelopment Authority of Allegheny County, 4 Pa.Cmwlth. 533, 287 A.2d 880 (1972) (Nelis I), the condemnee, Nelis, *1047 owned commercial property in Pittsburgh, including a lot with a building housing a hotel, restaurant and bar. In March, 1967, a fire destroyed the building. Three months after the fire, the county redevelopment authority filed a declaration of taking for the property. A board of viewers awarded Nelis compensation for the value of the now-vacant lot only. Nelis appealed the award, arguing the authority's redevelopment plan in the area effected a de facto taking prior to the declaration and, thus, the award must include compensation for the destroyed structure. The trial court denied Nelis' appeal and directed a verdict in the amount of the viewers' award. In affirming, this Court held that after the filing of a declaration of taking, preliminary objections under Section 406(a) of the 1964 Eminent Domain Code (Former Code),[4] constituted the exclusive method to assert a de facto condemnation occurred prior to the declaration, and that Nelis waived his claim by failing to do so. Nelis I.
Nelis then filed a petition for viewers under Section 502(e) of the Former Code. He initially secured an appointment of viewers, which the trial court ultimately vacated. In Nelis II, we affirmed the trial court on the basis of our holding in Nelis I, again noting that after the filing of a declaration, preliminary objections under Section 406(a) of the Former Code constituted the exclusive method to assert a de facto condemnation occurred prior to the formal condemnation. In Nelis II, we reasoned (with emphasis added):
By claiming that a de facto taking occurred, Nelis was actually asserting that the date of taking was not that as established by the declaration of taking, but had occurred previously thereto. He could have used the preliminary objections to question the allegedly improper date, or any other procedural omission which would deny him just compensation for the property (including the improvements and fixtures thereon) which were condemned. [Nelis] failed to take timely advantage of this remedy, however, and as stated by [Section 406(a) of the Former Code], "[f]ailure to raise these matters by preliminary objections shall constitute a waiver thereof."
Nelis II, 315 A.2d at 895.
Here, Lang decries our rationale in Nelis II as shortsighted, asserting that a challenge to a declaration's date of taking does not fall within the limited preliminary objections in Section 306(a)(3) of the Current Code, 26 Pa.C.S. § 306(a)(3), which include (with emphasis added):
(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
Lang further argues Nelis II is no longer "good law." Pursuant to Section 502(c)(1) of the Current Code (petition for appointment of viewers), 26 Pa.C.S. § 502(c)(1), a petition for viewers asserting a prior de facto taking occurred is no longer conditioned on whether the condemnor filed a declaration of taking.
Lang's argument is as follows. Section 502 of the Current Code differs from Section 502 of the Former Code. Section 502(e) of the Former Code, quoted in Nelis II, provided (with emphasis added):
If there has been a compensable injury suffered and no declaration of taking *1048 therefor has been filed, a condemnee may file a petition for the appointment of viewers....
However, Section 502(c)(1) of the Current Code, 26 Pa.C.S. § 502(c)(1), reads (with emphasis added):
An owner of a property interest who asserts that the owner's property interest has been condemned without the filing of a declaration may file a petition for the appointment of viewers....
In short, Lang argues Section 502(c)(1) of the Current Code permits a de facto claim in any case where a de facto taking occurs, regardless of whether the condemnor later files a declaration. Lang asserts this approach makes sense. If the property was already taken, the condemnor's declaration is a nullity, because the condemnor already owns the property. Therefore, Lang urges, there is no need to raise any of the four limited objections in 26 Pa.C.S. § 306(a)(3).
Lang further asserts applicable statute of limitations for a de facto taking claim is six years. See 42 Pa.C.S. § 5527(a)(2). However, Nelis II reduces the limitations period to 30 days from the date a declaration of taking is filed.
Lang also contends this Court could have disposed of Nelis' claim by applying the doctrine of judicial estoppel. By pursuing a de jure claim, Nelis acknowledged the condemnor took his property by formal condemnation. Here, Lang did not take such an inconsistent position.
Finally, as additional support for his position, Lang cites Erie Municipal Airport Authority v. Agostini, 127 Pa.Cmwlth. 360, 561 A.2d 1281 (1989), where we held in part that an airport authority cannot condemn de jure an easement it previously acquired by a de facto taking.
For these reasons, Lang argues the trial court erred in relying on Nelis II. He contends this Court erroneously decided the Nelis cases, and, in any event, they are no longer "good law."
We disagree. Lang bases his appeal on the premise that DOT effected a de facto condemnation of the Property prior to its filing the declaration of taking. Therefore, Lang asserts he no longer owned the Property and thus lacked standing to file objections to the declaration of taking. Lang further argues none of the three remaining grounds for preliminary objections in 26 Pa.C.S. § 306(a)(3) are applicable. He does not contest DOT's condemnation power, the sufficiency of the security or whether DOT followed the proper procedure.
Initially, we note, DOT named Lang as "Condemnee" in its declaration of taking. See R.R. at 13a. In his petition for viewers, Lang acknowledged being the record owner of the Property on the date DOT filed its declaration. Id. at 5a. Clearly, as a record owner Lang had the requisite standing to file preliminary objections to the declaration.
Further, in Nelis I, an en banc decision, a majority of this Court, speaking through then-President Judge Bowman, stated that an owner's allegation that a de facto taking occurred prior to the filing of the condemnor's declaration "goes to the very heart of the condemnor's power or right to condemn by formal declaration proceedings." Id., 287 A.2d at 883. In a concurring opinion, Judge Rogers observed that a de facto taking prior to a filing a declaration of taking constitutes a failure by the condemnor to comply with the required procedure for condemnation. Id. at 883-84. In Nelis II, we noted the condemnee, through preliminary objections, could challenge the date of taking in the declaration or any procedural irregularity. See id., 315 A.2d at 895. In view of Nelis I and Nelis II, we reject Lang's contention that he could not *1049 raise the issue of a prior de facto condemnation in preliminary objections to DOT's declaration of taking.
We further conclude the Nelis decisions were properly decided and retain their precedential value. This Court followed the Nelis decisions on several subsequent occasions. See, e.g., In re Condemnation by Dep't of Transp. (Bernstein Appeal), 112 Pa.Cmwlth. 368, 535 A.2d 1210 (1988) (failure to raise issues of condemnor's power to condemn and the nature of the property interest a party possesses by preliminary objections to the declaration results in a waiver of those issues); In re Condemnation by Dep't of Transp. (Saul Appeal), 98 Pa.Cmwlth. 527, 512 A.2d 79 (1986) (where property owner fails to exercise his right to assert a de facto taking prior to formal condemnation, he must exercise that right by preliminary objections to the declaration of taking, on penalty of waiver). We decline the invitation to unsettle a long-established rule of law.
Under the Current Code, preliminary objections are still the exclusive method of challenging the condemnor's right to take, the declaration of taking itself, and any procedural irregularities by the condemnor. 26 Pa.C.S. § 306(a). Failure to raise preliminary objections to these issues constitutes a waiver. 26 Pa.C.S. § 306(b).
Further, Section 502(c) of the Current Code is substantively identical to Section 502(e) of the Former Code. Section 502(c) relevantly provides (with emphasis added):
(c) Condemnation where no declaration of taking has been filed.
(1) An owner of a property interest who asserts that the owner's property interest has been condemned without the filing of a declaration of taking may file a petition for appointment of viewers substantially in the form provided in subsection (a) setting forth the factual basis of the petition.
This language is substantively identical to that in Section 502(e) of the Former Code, which provided: "If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers...." In fact, this language is now in the heading to current Section 502(c), which provides, "Condemnation where no declaration of taking has been filed." "The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof." 1 Pa.C.S. § 1924 (emphasis added). The trial court did not err in finding no difference in substance between former Section 502(e) and current Section 502(c). Nothing in Section 502(c)(1) of the Current Code renders the Nelis decisions inapplicable here.
Further, Lang failed to raise the issue of whether Nelis II contradicts the statute of limitations for de facto claims in his statement of matters complained of on appeal. Accordingly, it is waived. Pa. R.A.P. 1925(b)(4)(vii).
Also, Lang's argument that Nelis II is distinguishable because the Court could have disposed of Nelis' de facto claim under the doctrine of judicial estoppel, because he proceeded in the de jure action, rings hollow. This Court did not decide Nelis II by invoking judicial estoppel. Rather, as discussed, we determined Nelis waived his de facto claim by failing to either assert it before the condemnor filed its declaration or raise it in preliminary objections to the declaration. Nelis II is applicable here.
Further, Lang's reliance on Agostini is misplaced. There, the condemnees filed a petition for viewers alleging a de facto condemnation nearly a year before the airport authority filed its declaration of taking. *1050 Significantly, the condemnees also filed preliminary objections to the declaration "asserting the [a]uthority could not take de jure what it had previously taken de facto." Agostini, 561 A.2d at 1283. The trial court agreed and sustained the objections. This Court affirmed. If anything, Agostini supports DOT's position that preliminary objections are the proper method to challenge the validity of a formal condemnation on the basis that a de facto condemnation already occurred.
For the above reasons, we affirm the trial court.
ORDER
AND NOW, this 18th day of February, 2011, the order of the Court of Common Pleas of Allegheny County is AFFIRMED.
NOTES
[1] 26 Pa.C.S. §§ 101-1106. The Current Code became effective September 1, 2006.
[2] Where a trial court has either sustained or overruled preliminary objections in an eminent domain proceeding, our review is limited to determining whether the trial court committed an error of law or abused its discretion. In re Condemnation by City of Coatesville, 898 A.2d 1186 (Pa.Cmwlth.2006). In eminent domain cases, preliminary objections are intended to resolve factual and legal challenges to a taking before the parties proceed to determine damages. Id.
[3] The trial court noted Lang admitted having all the information necessary to file preliminary objections at the time DOT filed the declaration of taking. See Trial Ct. Slip Op., 07/27/10 at 6-7. The court further noted Lang's main motivation for pursuing a de facto taking was obtaining unlimited attorney fees and expenses under 26 Pa.C.S. § 709. Id. at 7. The trial court's findings are supported by the record. See Notes of Testimony (N.T.), 04/05/10, at 16-21; R.R. at 84a-89a. Throughout the litigation, Lang was represented by Maurice A. Nernberg, Esq.
[4] See Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. § 1-406(a), repealed by Section 5 of the Act of May 4, 2006, P.L. 112. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2422372/ | (2008)
Dariusz Wojciech MAZURKIEWICZ, Plaintiff,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Defendants.
No. 08-CV-01567.
United States District Court, S.D. New York.
October 30, 2008.
DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
McMAHON, District Judge.
Plaintiff Dariusz Wojciech Mazurkiewicz ("Mazurkiewicz") alleges that defendants New York City Health and Hospitals Corporation, Bellevue Hospital Center, Diana K. Santos, Virginia Aldrich, and Naimah Cassandra Simmons (collectively, the "defendants") violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (as amended), Title VI, 42 U.S.C. § 2000(d), 42 U.S.C. §§ 1981, 1985, 1986, and 1988, New York State's Human Rights Law, Executive Law § 296, New York City Administrative Code § 8-401, and an implied contract. Specifically, plaintiff alleges defendants discriminated against him on the basis of his national origin, religion and gender when New York City Health and Hospitals Corporation ("HHC") terminated his employment on February 18, 2005. Defendants have moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. The motion is granted, and the Complaint is dismissed.
BACKGROUND
The following well-pleaded facts are presumed true.
a. Parties and termination of plaintiff
Plaintiff Mazurkiewicz is a male of Polish origin.
Defendant New York City Health & Hospitals Corporation operates hospitals in New York City, including Bellevue Hospital Center. Defendant Bellevue Hospital Center ("Bellevue") is a medical center located at 462 First Avenue.
Defendant Virginia Aldrich is an employee of HHC/Bellevue who served as senior associate director during the time period at issue.
Defendant Diana K. Santos is an employee of HHC/Bellevue who served as an associate director during the time period at issue.
Naimah Cassandra Simmons is an employee at HHC/Bellevue who served as a patient accounts manager during the time period at issue.
In 1999, Mazurkiewicz was hired by defendant HHC to work at Bellevue as a Hospital Care Investigator in the InPatient Revenue Investigations Department. See Complaint at ¶ 18. On or about June 21, 2004, plaintiff represented to a psychiatric patient at Bellevue and his family that plaintiff, on behalf of Bellevue, would escort the patient (who was suffering from schizophrenia) to the patient's and plaintiffs home country of Poland. See Cplt. at ¶¶ 58, 61-62 and Exhibits S and T. Plaintiff had no authority to make any such representations, nor to escort a mentally ill patient on an international flight to Poland. Nevertheless, plaintiff informed the patient's family and the Polish national government that he would escort this patient. See Cplt. Exhibits S and T.
On or about July 21, 2004, HHC served plaintiff with a Notice and Statement of Charges, charging him with, inter alia, false representation and inappropriate conduct, related to this incident. See Cplt. at ¶ 62 and Exhibit S. Disciplinary hearings were held in or about August and November 2004. Id. ¶ 63. On or about October 14, 2004, plaintiff received a Step I Conference Decision recommending that plaintiff be terminated. Id. ¶ 74. On November 16, 2004, a Step II Hearing was held. Id. ¶ 77. The Step II Review officer found plaintiff guilty of conduct unbecoming a hospital employee and recommended termination. Id. ¶ 78. In a letter dated February 18, 2005, the plaintiff was notified that he was terminated pursuant to the Step II Review. Id.; see also Cplt. Exhibit A. Following his termination, the claimant had worked as a per diem caseworker for a mental health social services agency for about two months. See Cplt. Exhibit P at 2.
Following his termination, plaintiff requested a Step III proceeding, which is a review of the Step II findings. Cplt. ¶ 80. In a decision filed on July 26, 2005, the Administrative Law Judge in that proceeding held that plaintiff had not behaved inappropriately and recommended reinstatement. See id.; Cplt. Exhibit P. The Administrative Law Judge wrote that "it has not been substantiated that the claimant had behaved dishonestly or inappropriately with respect to his application to escort a Polish-speaking psychiatric patient of the employer back to his home country.... I therefore find it has not been substantiated that the claimant had committed any act that would have justified his dismissal under a hospital standard prohibiting unbecoming conduct." See Cplt. Exhibit P at 2.
b. Settlement
After the Administrative Law Judge overruled the Step II review officer, the parties were assigned the Step IV proceeding of arbitration. No arbitration ever took place. Instead, 29 months later, the parties settled the matter. The complaint and answer do not specify why there was a 29-month gap between the ALJ's decision and the settlement, so technically that information is not before the court on this Rule 12(c) motion. However, plaintiff attaches documents to his responsive papers on the motion that enlighten the court about the reasons: the arbitration was not scheduled for nearly a year and was then repeatedly adjourned. See Pl. Response Exhibit F. At some point the parties began discussing settlement.[1]
On or about May 31, 2007, the plaintiff received a draft Settlement Agreement. In that document, the "FOURTH" paragraph required HHC to "pay the Grievant full back pay ... from February 18, 2005, through the date of his reinstatement...." See Cplt. Exhibits B and C. (Emphasis added.)
The May 31, 2007 draft was not executed. The plaintiff contends that a negotiating delay between his lawyer and his union's lawyer prevented him from signing the May 31, 2007, draft of the settlement, and states that he "was not instructed that the stipulation shall be signed in one month since its preparation." See Cplt. Exhibit C. Ultimately, the reason is unimportant, since plaintiff does not allege that HHC interfered with his ability to sign the document.
A subsequent draft was sent at some later date. See Defs. Reply Exhibit A. In that draft, the phrase "date of his reinstatement" in the "FOURTH" paragraph was crossed out and replaced in writing by the words "June 30, 2007." See Answer Exhibit A. The alteration meant that HHC would only reimburse back pay through June 30, 2007, even though plaintiff did not return to work that day. This alteration remained in the settlement agreement that was signed by plaintiff. See Answer Exhibit A.
On October 31, 2007, the plaintiffs union wrote Mazurkiewicz a letter, stating that plaintiff had received the proposed settlement on May 31, 2007, and that "because you had not signed the proposed stipulation in the last five (5) months, you will only get paid retroactive from February 18, 2005, through June 30, 2007." See Cplt. Exhibit B.
Plaintiff did not immediately sign this draft. Instead, he protested the loss of the four months' back pay. In a November 1, 2007, letter he wrote to the director and council representative of his union, plaintiff called it a "horrible trick" and said that it was "strongly unacceptable" that he be "robb[edl" of his full back pay. See Cplt. Exhibit C.
Eventually, however, the plaintiff signed the document as modified. He placed his signature on every pageincluding the page stating that he would only receive back pay through June 30, 2007. See Answer Exhibit A. On December 27, 2007, HHC countersigned and executed the settlement agreement. Id.
In the settlement agreement, plaintiff and the Union agreed jointly and severally to release HHC and Bellevue from "any and all claims ... arising with the underlying dispute," which was plaintiff's termination of February 18, 2005. See Answer Exhibit A, There does not appear to be any dispute that plaintiff received $62,778.18 in back pay. See Defs. Reply Exhibit D.
c. Claims
On February 14, 2008, plaintiff commenced this action pro se, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (as amended), Title VI, 42 U.S.C. § 2000(d), 42 U.S.C. §§ 1981, 1985, 1986, and 1988, New York State's Human Rights Law, Executive Law § 296, New York City Administrative Code § 8-101, and an implied contract.
Plaintiff alleges that defendants (i) discriminated against him on the basis of race, color, national origin, religion and gender in violation of 42 U.S.C. § 1981, by, among other things, posting negative personal comments on the company database, removing clients from his caseload, hampering his career opportunities within the company, failing to transfer or promote him and fabricating claims of sub-standard work; (ii) discriminated against him on account of his age, race, religion, and national origin in violation of New York State Executive Law 296 by engaging in these same practices; (iii) discriminated against him on account of his age, race, religion, and national origin in violation of 42 U.S.C. § 2000e (Title VII) by engaging in these same practices; (iv) discriminated against him on account of his age, race, religion, and national origin in violation of 42 U.S.C. § 1986 by engaging in these same practices; (v) discriminated against him on account of his age, race, religion, and national origin in violation of New York City Administrative Code § 8-107(1) by engaging in these same practices; (vi) breached an implied contract by unlawfully discriminating against plaintiff and terminating plaintiff in bad faith; (vii) forced plaintiff to work in a hostile work environment by emotionally abusing and intimidating him. See Compl.
On April 30, 2007, the United States Equal Employment Opportunity Commission ("EEOC") had previously dismissed plaintiff's charge of discrimination against HHC and Bellevue for its untimely filing. See Pl. Response Exhibit E. The exact date that plaintiff filed with the EEOC is not in the record. There is evidence in the record that plaintiff's attorney notified him of a potential claim through EEOC on May 30, 2006. See Pl. Response Exhibit D.
On May 20, 2008, the defendants filed their Motion to Dismiss was filed with this Court.
DISCUSSION
a. Standard of Review
This motion was filed after defendants filed their answer, and defendants rely in their motion on material contained in and appended to the answer. Therefore, defendants move for dismissal under Rule 12(c) of the Federal Rules of Civil Procedure, which provides: "After the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings."
"Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988); Miele v. Commissioner of Social Security, No. 07 Civ. 3227(CM)(KNF), 2008 WL 2388701, at *2 (S.D.N.Y. June 11, 2008). "The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir.2006).
In Bell Atlantic v. Twombly, 550 U.S. 544, ___ _ ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007), the United States Supreme Court addressed the standard for review of a Rule 12(b)(6) motion to dismiss and "retired" the Conley v. Gibson standard, which had previously held that dismissal is inappropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Bell Atlantic Court held that, "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (internal quotations and citations omitted). To survive a motion to dismiss, a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (citations omitted). The Court further noted that, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969. Ultimately, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.
The United States Court of Appeals for the Second Circuit has since interpreted the Bell Atlantic holding to mean that "the [Supreme] Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegation in those contexts where such amplification is needed to render the claim plausible" Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007); see also Fershtadt v. Verizon Communications Inc., 550 F.Supp.2d 447, 451 (S.D.N.Y.2008). Where a plaintiff has "not nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic, 127 S.Ct. at 1974. On a motion to dismiss, the court must accept all factual allegations in the complaint as true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, ___, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007); see also Fershtadt, 550 F.Supp.2d at 451.
"Under Fed.R.Civ.P. 12(c), the court may consider, in its discretion and upon notice to all parties, materials outside the pleadings." Sellers, 842 F.2d at 642 (internal quotations and citation omitted). However, if the court considers such materials, the motion is treated as one for summary judgment under Fed.R.Civ.P. 56. Falls Riverway Realty v. City of Niagara Falls, 754 F.2d 49, 53-54 (2d Cir.1985). Where a district court considers allegations outside the complaint and its exhibits in resolving a Rule 12(b)(6) or Rule 12(c) motion presented to it and does not explicitly give notice that it was converting the Rule 12 motion to a Rule 56 motion, such consideration is ordinarily in error. Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 57 (2d Cir.2007).
In this case, the court is considering only the pleadings themselves and the materials appended thereto.
b. Title VII Claims are Dismissed for Failure to Exhaust Administrative Remedies
For a Title VII charge to be timely "in `dual filing' states such as New York, a plaintiff must file the charge with the EEOC within 300 days of the allegedly unlawful employment practice." Henry v. Wyeth Pharmaceuticals, Inc., No. 05 Civ. 8106(CM), 2007 WL 2230096, at *28 (S.D.N.Y. July 30, 2007); 42 U.S.C.2000e-5(e)(1); see also Nat'l R.R. Passenger Corp. ("AMTRAK') v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Failure to file a timely EEOC charge results in the dismissal of federal claims. See Morgan, 536 U.S. at 109, 122 S.Ct. 2061 ("A claim is time barred if it is not filed within these time limits."); Butts v. N.Y. Dept. of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.1993) superceded by statute on other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998).
Here, the "allegedly unlawful employment practice" was the wrongful termination on Feb. 18, 2005. However, Mazurkiewicz apparently failed to file a charge within the mandatory 300-day period. While the exact date that the plaintiff filed with the EEOC is not in the record, the EEOC barred his claim because it was untimely filed.[2]See Pl. Response Exhibit E. Therefore, the claim must be dismissed for failure to exhaust administrative remedies.
Reading plaintiffs responsive papers as liberally as possible as required for a pro se plaintiff, the plaintiff may be trying to argue the 300-day period should be equitably tolled. "[The] time period for filing a charge is subject to equitable doctrines such as tolling or estoppel." National R.R. Passenger Corp. ("ATRAK), 536 U.S. at 113, 122 S.Ct. 2061; see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); Briones v. Runyon, 101 F.3d 287, 290 (2d Cir.1996). A court may evaluate whether to apply these doctrines, but they are to be applied sparingly. National R.R. Passenger Corp. ("AMTRAK), 536 U.S. at 113, 122 S.Ct. 2061; see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants."). Ultimately, "tolling might be appropriate only where the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights, or has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978): Shih v. City of New York, No. 03 Civ. 8279 LAP, 2006 WL 2789986, at * 3 (S.D.N.Y. Sept. 28, 2006); see also Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 237 n. 10, 238, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976).
Plaintiff contends that, "On or about February 17, 2005, immediately after the wrongful termination, a Mr. Jon Peek from the Social Service Employees Union Local 371 sent a letter enclosing four waiver forms for the Plaintiff directing him to sign without explaining to the Plaintiff what he was signing." See Pl. Response ¶ 14. While plaintiff may be implying that the collective bargaining process tolled the statute of limitations, such an argument is meritless. "The existence and utilization of collective bargaining procedures to remedy an alleged wrongful discharge by an employer does not toll the running of the statutory period for filing a charge with the EEOC." Nweke v. Prudential Ins. Co. of America, 25 F.Supp.2d 203, 217 (S.D.N.Y.1998); see also International Union of Elec., Radio and Mach. Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976).
Alternatively, plaintiff may be trying to contend that the union failed to tell him about his right to file a charge with the EEOC. However, plaintiff alleges no facts tending to show that the union failed any said duty, or that it engaged in misleading, fraudulent or deceptive conduct by failing to discuss his EEOC rights with him. There is, therefore, no basis to toll the limitation period to redress inequitable conduct by the union. See Smith, 571 F.2d at 109, 111 ("Smith's claim that he had no knowledge of the EEOC because of appellees' failure ... does not in our view allege misleading, fraudulent or deceptive conduct by the appellees sufficient to permit tolling here.").
Finally, plaintiff alleges that he "was never properly and timely informed by Mr. Kriesberg as to his rights, to file a claim of employment discrimination with the United States Equal Employment Opportunity Commission upon his appointment." See Pl. Response ¶ 19. However, plaintiff does not allege that Kriesberg was hired prior to the expiration of the 300-day period. Hence, there is no evidence that his lawyer neglected to inform plaintiff within the statute of limitations. In any event, what plaintiff is alleging is attorney malpractice. If he has a malpractice claim, he should file it in state court.
There is no basis on this record for an equitable toll. Therefore, plaintiffs Title VII claims are dismissed.
c. The Remaining Claims Are Barred by the Settlement
Defendants have attached a copy of the settlement agreement, signed by both parties, to the Answer. See Answer Exhibit A. Plaintiff does not dispute that his signature appears on every page of the document. In fact, plaintiff admits as much, by attaching his own copy of the signed document to his response to HHC's motion. However, he does imply the document was altered after he signed it, saying that he "discovered" the alteration on February 8, 2008, when he received a countersigned copy. See Pl. Response ¶ 4. Plaintiff also argues that he signed the agreement under economic duress. See Pl. Response ¶ 15-17.
The release clearly states in exchange for back pay up to June 30, 2007 and other consideration, "The Union and the Grievant, jointly and severally, release HHC and the facility from any and all claims...." See Answer Exhibit A ¶ 11. Therefore, the rest of the plaintiff's claims are foreclosed.
Settlement agreements are considered contracts, "and must therefore be construed according to general principles of contract law." Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir.1999). "If a contract is clear, courts must take care not to alter or go beyond the express terms of the agreement, or to impose obligations on the parties that are not mandated by the unambiguous terms of the agreement itself." Id. See also Geller v. Branic Intern. Realty Corp., 212 F.3d 734, 737 (2d Cir. 2000) ("We have often compared stipulated settlements to contracts, and we have consistently applied the law of contract to disputes concerning the construction and enforcement of settlements."); accord Jordan v. Verizon Corp., No. 02-CV-10144 (GBD), 2007 WL 4591924, at *11 (S.D.N.Y. Dec.27, 2007). Settlements of disciplinary proceedings have been held as binding on the parties and enforceable both in state and federal courts. See, e.g., McFerran v. Board of Ed., Enlarged City School Dist. of Troy, 58 A.D.2d 917, 396 N.Y.S.2d 735 (3d Dep't 1977), aff'd, 45 N.Y.2d 729, 408 N.Y.S.2d 474, 380 N.E.2d 301 (1978), cert. den., 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979).
Here, the parties entered into a stipulated settlement to resolve all of plaintiff s disputes regarding his termination on February 18, 2005. See Answer Exhibit A. Through this settlement, HHC agreed to reinstate plaintiff with back pay, sick and annual leave credits, and pension contributions. See Answer Exhibit A at ¶¶ 3-6. Plaintiff received over $62,000 pursuant to the settlement. In consideration for this relief, plaintiff waived all rights to commence any and all claims arising from his February 2005 termination. See id. at ¶ 11. The "ELEVENTH" Paragraph of the stipulation reads:
The Union and the Grievant, jointly and severally, release HHC and the facility from any and all claims, whether at law, in equity, or in any proceeding arising by virtue of the HHC Personnel Rules and Regulations or by the collective bargaining agreements between HHC, the City of New York and the Union which they may now have, which they have had heretofore, or which they may have in the future in connection with the underlying dispute raised in Case Number A-10982-05.
An employee must knowingly and willfully waive a discrimination claim for the waiver to be valid. 42 U.S.C.A. § 2000e et seq.; Bormaan v. AT & T Commc'ns, Inc., 875 F.2d 399, 402 (2d Cir.1989) (internal quotation marks and citations omitted); accord Campbell v. Alliance Nat. Inc., 107 F.Supp.2d 234, 239-40 (S.D.N.Y.2000). The factors relevant in determining whether a party voluntarily entered into a waiver are. "1) the plaintiffs education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law; 7) whether an employer encourages or discourages an employee to consult an attorney, and 8) whether the employee had a fair opportunity to do so." Bormann, 875 F.2d at 403.
An analysis of these factors strongly favors upholding the release. While plaintiff was not educated in the United States, and English is his second language, he is obviously highly educated, judging from the papers he has prepared and filed with this court. The settlement agreement was initially received by the plaintiff on May 31, 2007, (see Cplt. Exhibits B and C), which means plaintiff had months to possess or access the agreement. He was represented by an attorney and by his union during the settlement negotiations. The terms of the agreement are clear; indeed, they were so clear that plaintiff protested one term (albeit to no avail) before he finally signed the agreement. And as a result of the settlement, plaintiff received numerous benefits-including reinstatement, back pay from the termination date and benefits. Thus, the only proper conclusion is that plaintiff knowingly and willfully signed the settlement.
Plaintiff cites Siegel v. Ocean Park Housing Co., Inc., 248 A.D.2d 459, 460, 668 N.Y.S.2d 932 (2d Dep't 1998), which states, "Stipulations of settlement may be set aside [O]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident or lack of authority." Id. (internal quotations and citation omitted). There is no evidence of any such circumstance here.
Plaintiff claims, in his response to the motion to dismiss, that the settlement agreement is invalid because he only "discovered" the altered "FOURTH" paragraph of the settlement on February 8, 2008, when the agreement as countersigned was returned to him. See Pl. Response at ¶¶ 3-8. Plaintiff contends that the settlement was "tampered with," ostensibly after he signed it. See Pl. Response at ¶¶ 3-8.
Unfortunately for plaintiff, a document he attached to his complainta document the court is free to consider on this motiongives the lie to his argument. Plaintiff attaches to the complaint a letter he wrote dated November 1, 2007, in which he protests the change that occurred on October 30, 2007, in the "FOURTH" paragraph of the settlement. See Cplt. Exhibit C. The letter clearly demonstrates that the plaintiff knew that the negotiators had inserted a limitation on his back pay into the Settlement Agreement as early as November 1, 2007. Id. There is no evidence of a post-signing fraud here. Nor, for that matter, is there any mistake or accident.
Plaintiff also suggests that he was compelled to sign the agreement due to economic duress. See Pl. Response ¶¶ 11, 15, 16, 17, 24. He argues that a credit card company sued him for failure to make payments and cites his general economic circumstances, see Pl. Response ¶¶ 16-17, and he cites Frumkin v. International Business Machines Corp., 801 F.Supp. 1029, 1044 (S.D.N.Y.1992) for the proposition that "courts of this Circuit do recognize avoidance of contractual liability on the grounds of economic duress." Id.
However, to make out a claim of economic duress, a plaintiff must establish "that the agreement was obtained: (1) by means of wrongful threat precluding the exercise of free will; (2) under the press of financial circumstances; (3) where circumstances permitted no other alternative." Id. (internal quotations and citations omitted). In other words, the duress (the threat) must emanate from the party who is attempting to obtain the agreement. Nothing in Frumkin suggests otherwise. Here, plaintiff does not plead or otherwise suggest that defendants made any wrongful economic threat against him. Pressure from credit card companies does not mean that HHC obtained the agreement by means of any wrongful threat.
The plaintiff also cites Cheung v. New York Palace Hotel, No. 03-CV-0091 DLI WDW, 2005 WL 2387573, at *4 (E.D.N.Y. Sept.28, 2005), presumably for the proposition that, "Although [plaintiff] fails to allege that defendant made a wrongful threat, and states, in a conclusory manner, that she had no other financial alternative to signing the release, these assertions are enough to cast some doubt on the validity of the release and raise a viable claim of duress" that would preclude a dismissal. Id. (internal quotations and citation omitted). But Cheung is not binding on this court and in any event it appears to be wrongly decided. There is no suggestion in this record that anyone at HHC exerted any improper pressure on plaintiff. See, e.g., Business Incentives Co. v. Sony Corp. of America, 397 F.Supp. 63, 69 (S.D.N.Y. 1975). "If the defendant's actions are within his legal rights, plaintiff can not make out a claim of economic duress and the courts will not intervene to void a contract fair on its face. Mere hard bargaining positions, if lawful, and the press of financial circumstances, not caused by the defendant, will not be deemed duress. The alleged duress must be proven to have been the result of defendant's conduct and not of the plaintiffs own necessities." Id.
Conclusion
For the foregoing reasons, the complaint is dismissed, with costs to defendants (but not attorneys' fees). The Clerk of the Court shall enter judgment for the defendants and close the file.
NOTES
[1] On April 4, 2007, the plaintiff received a letter from his counsel confirming that the arbitration session scheduled for March 27, 2007, was cancelled "based upon the written and verbal statements made by the HHC that they have decided to withdraw the disciplinary charges against you, and reinstate you to your former position of employment with full back pay, benefits and seniority. As you know from our prior conversations, I am in the process of working out the details of the foregoing." See Pl. Response Exhibit F.
[2] It is worth noting that the EEOC added in the letter that "it is very unlikely that the EEOC would find a violation if it invested additional resources in this case." See Pl. Response Exhibit E. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2422387/ | (2008)
Otha HILSON III, Petitioner,
v.
UNITED STATES of America, Respondent.
Nos. 4:07 CV 00187, 4:03 CR 00228.
United States District Court, N.D. Ohio, Eastern Division.
October 27, 2008.
Order Granting Leave to File Motion for Reconsideration October 27, 2008.
MEMORANDUM OF OPINION AND ORDER DENYING PETITIONER RELIEF UNDER 28 U.S.C. § 2255
LESLEY WELLS, District Judge.
Before the Court is Otha Hilson, III's 15 January 2007 petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1: 7 CV 187, Doc. 52: 3 CR 228). The government filed an opposition to the petition (Doc. 4: 7 CV 187) and the Court granted Mr. Hilson's motion for an extension of time until 8 June 2007 to reply. (Doc. 6). Mr. Hilson filed his reply on 11 June 2007. (Doc. 54: 3 CR 228). The issue is now ripe for consideration. The Court has determined that the motion and the record of prior proceedings in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. Mr. Hilson's Section 2255 petition will be denied for the reasons discussed below.
I. Background
On 10 June 2003, the government charged Mr. Hilson in a single count Indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Case No. 1:03 CR 228). The Indictment charged that on the night of 10 May 2003, at approximately 2:47 a.m., Youngstown, Ohio police officers responded to Lucius and Market Streets in reference to a man passed out behind the wheel of his automobile. Upon arrival the police found Mr. Hilson asleep at the wheel with the car running. Upon approaching the car, the police observed a black handgun between Mr. Hilson's legs with his right hand on the firearm. After yelling at Mr. Hilson failed to awaken him, the police opened the door and grabbed the gun, a Beretta nine-millimeter. After Mr. Hilson was removed from the car, the officers recovered a cloth bag from his front pocket in a search incident to his arrest. The bag contained five small bags of marijuana, individually packed in clear plastic bags, and a clear plastic bag containing approximately 10 rocks of crack cocaine, and three smaller bags containing approximately three rocks of crack cocaine.
Mr. Hilson initially pleaded not guilty before Magistrate Judge George Limbert. On 20 January 2004, the government filed an Armed Career Criminal Notice, advising Mr. Hilson that he was subject to the sentencing enhancement provisions of 18 U.S.C. § 924(e)(1). (Doc. 20).
On 26 January 2004, the Court held a hearing at which Mr. Hilson pled guilty to felony possession of a firearm. (Doc. 22, Transcript at Doc. 28: 3 CR 228). During the hearing the Court "took great care to verify that Hilson understood the significance of his plea, the severity and range of his possible sentences, and the government's discretion about whether to grant him a substantial-assistance departure under [U.S.S.G.] § 5K1.1." United States v. Hilson, 152 Fed.Appx. 452, 453, 2005 WL 2649958 (6th Cir.2005). As the Sixth Circuit acknowledged, during the plea hearing "the parties agreed to hold the sentencing terms in abeyance while Hilson negotiated with the government for a substantial-assistance departure under" § 5K1.1. Id.
On 6 February 2004, Mr. Hilson filed a pro se motion to withdraw his guilty plea and, a few days later, filed a pro se request for new counsel. (Does. 23, 24: 3 CR 228). The government filed a response to Mr. Hilson's motion to withdraw his plea. (Doc. 29). On 10 March 2004 the Court appointed Mr. Hilson new counsel (Doc. 25), and on 9 July 2004, new counsel, at the Petitioner's request, withdrew the prior, pro se, motion to withdraw the plea of guilty. (Doc. 30). The Court granted that latter motion on 12 July 2004.
On 23 August 2004, the Probation Office prepared and issued a final presentence investigation report on Mr. Hilson, prior to his sentencing hearing. That report did not contain a departure for substantial assistance under § 5K1.1, and did not adjust the Petitioner's proposed sentence for acceptance of responsibility. On 27 August 2004 Mr. Hilson, through counsel, filed a second motion to withdraw his guilty plea, along with a brief in objection to the presentence investigation report. (Does. 33, 34). On 30 August 2004 the Court held a hearing on the motion to withdraw, denying the motion from the bench. The Court later memorialized its reasoning in an Order on 7 September 2004. (Doc. 36: 3 CR 228). Immediately following the denial of Mr. Hilson's motion to withdraw his plea on 30 August 2004, the Court held a sentencing hearing in which the defendant received 180 months incarceration, the lowest sentence available in light of the statutory mandatory minimum and the absence of substantial assistance. (Doc. 35). Judgment in the District Court was finalized on 7 September 2004. (Doc. 37: 3 CR 228).
With the assistance of a Court appointed appellate counsel (Doc. 41), Mr. Hilson appealed to the Sixth Circuit the Court's Order denying his 27 August 2004 motion to withdraw his guilty plea. His appellate brief raised no issues concerning his sentence. On 17 October 2005, by Information, the Sixth Circuit affirmed the District Court's decision to deny Mr. Hilson's motion to withdraw. (Doc. 50). The Sixth Circuit recognized that the factors enunciated in United States v. Goldberg, 862 F.2d 101, 103-04 (6th Cir.1988), necessitated denying Mr. Hilson's motion to withdraw his guilty plea. The Sixth Circuit also noted that Mr. Hilson's failure to consistently maintain his innocence weighed against granting the appeal. Id. at 454. Finally, the Sixth Circuit concluded that Mr. Hilson's "extensive experience" with the criminal justice system suggested a sufficient understanding of the situation to "render a voluntary, knowing, and intelligent plea." Id. The Sixth Circuit Court's Mandate was filed on 10 November 2005. (Doc. 51).
Mr. Hilson filed the instant matter on 15 January 2007, seeking relief from his sentence pursuant to section 2255. (Doc. 52: 3 CR 228; Doc. 1:7 CV 187).
II. Law and Argument
Section 2255 permits a prisoner in custody under sentence of a federal court to move the court that imposed the sentence to vacate, correct, or set aside that sentence, on the grounds:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255. The movant has the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 568 F.2d 1, 5 (6th Cir.1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 409 (1978).
Where a constitutional error is alleged, in order to obtain relief under § 2255 the record must reflect a constitutional error of such magnitude that it had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.). cert. denied, 531 U.S. 884, 121 S.Ct. 200, 148 L.Ed.2d 140 (2000). Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.2001), cert. denied, 535 U.S. 967, 122 S.Ct. 1433, 152 L.Ed.2d 377.
Mr. Hilson raises four grounds for relief in his section 2255 petition: (1) the Court lacked subject-matter jurisdiction to adjudicate the criminal proceedings; (2) defense counsel number one (Neal Atway) did not zealously advocate for the defendant; (3) defense counsel number two (Damian Billak) did not zealously advocate for the defendant; and (4) the Petitioner's guilty plea was neither knowing nor voluntary. (Doc. 1).
The Petitioner admits that he did not raise the first three grounds for relief on direct appeal. (Doc. 1, p. 6). Further, the Sixth Circuit observed that Mr. Hilson's direct appeal addressed only his motion to withdraw his guilty plea, and did not raise any issues relating to his sentence or to jurisdiction. United States v. Hilson, 152 Fed.Appx. at 453.
A. Ground Four Already Litigated
As an initial matter, the Court finds that Mr. Hilson's fourth § 2255 ground for relief has already been litigated. See United States v. Hilson, 152 Fed.Appx. 452. This claim fails because the Petitioner already made this argument on direct appeal before the Court of Appeals for the Sixth Circuit. A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances, such as an intervening change in the law. See DuPont v. United States, 76 F.3d 108, 110-11 (6th Cir.1996): see also Wright v. United States, 182 F.3d 458, 467(6th Cir.1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir.1999); Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996). As a general rule, sentencing matters decided on direct appeal may not be relitigated under § 2255. See DuPont, 76 F.3d at 110-11. In reviewing the entire record, the Court has given considerable attention to the Petitioner's change of plea hearing (Doc. 28: 3 CR 228), the Sixth Circuit's consideration of Mr. Hilson's appeal (Does. 50, 51), and the Section 2255 briefs submitted by the parties. The Court concludes that, because no exceptional circumstances exist in the present case, Petitioner's fourth argument for relief fails.
B. Procedural Default and Waiver
On 15 September 2004, this Court appointed an appellate attorney to represent Mr. Hilson's direct appeal before the Sixth Circuit. (Doc. 41: 3 CR 228). The Petitioner's direct appeal involved the single question of whether his plea of guilty was knowing and intelligent and did not address the questions presented here regarding either jurisdiction and ineffective assistance of trial counsel.
Most challenges to a federal criminal conviction must be litigated in a direct appeal. "Given society's substantial interest in the finality of judgments, only the most serious defects in the trial process will merit relief-outside of the normal appellate system." Grant v. United States, 72 F.3d 503, 506 (6th Cir.1996). Because of this, a defendant risks losing the opportunity for merit review by failing to raise claims on direct appeal. See Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000). see also Murr v. United States, 200 F.3d 895, 900 (6th Cir.2000). Such procedural defaults are excused when the Petitioner establishes both cause and actual prejudice. Phillip, 229 F.3d at 552; see Murr, 200 F.3d at 900. "This hurdle is an intentionally high one for the petitioner to surmount, for respect for the finality of judgments demands that collateral attack generally not be allowed to do service for an appeal." Elzy v. United States, 205 F.3d 882, 884 (6th Cir.2000).
C. Jurisdiction
In his first ground for relief, Mr. Hilson argues that the Court lacked subject matter jurisdiction to hear the case under 18 U.S.C. § 922(g)(1). Specifically, the Petitioner maintains that his admission, at his change of plea hearing, that the gun he admitted possessing was manufactured outside the State of Ohio, was insufficient to create a "substantial connection to interstate commerce."
Because Mr. Hilson did not raise this issue at sentencing or in his direct appeal, and he has not proven cause or actual prejudice to excuse the error, he is procedurally barred from introducing the matter in a Section 2255 motion. See Elzy v. United States, 205 F.3d at 884. However, even if the Court did not find Mr. Hilson's first ground for relief procedurally barred, his position, nevertheless, fails on the merits. This Circuit has long held that "proof that a firearm was manufactured outside the state in which the possession occurred is sufficient to support a finding that the possession was in or affected commerce." Watkins v. United States, 564 F.2d 201, 204 (6th Cir.1977); see United States v. Robinson, 2006 WL 3311283 (6th Cir. 2006); United States v. Ayoub, 498 F.3d 532, 544-48 (6th cir.2007) (defendant's stipulation as to interstate travel of firearm sufficient); United States v. Sawyers, 409 F.3d 732, 735 (6th Cir.2005) (defendant's stipulation that firearm traveled in interstate commerce provided sufficient evidence to support his conviction)
Accordingly, Mr. Hilson's admission that the nine-millimeter Beretta that Officers recovered from him was "manufactured outside the State of Ohio and traveled in interstate commerce," establishes this Court's jurisdiction under Section 922(g)(1). (Change of Plea Hearing, Doc. 28, Tr. 14-15: 3 CR 228).[1]
D. Ineffective Assistance of Counsel
Mr. Hilson claims in his second and third grounds for relief that his counsel provided ineffective assistance. Ground two for relief is directed at the performance of his first appointed counsel, while ground three for relief attaches to the performance of his second appointed counsel.
In his second ground for relief, Mr. Hilson maintains that his counsel was ineffective because he allowed the Petitioner to enter a guilty plea without an assurance that the government would request a significant sentencing departure under U.S.S.G. § 5K1.1. Mr. Hilson also maintains his first counsel abdicated his duty to file a suppression motion to challenge the alleged discrepancies in the two police reports.
In his third ground for relief, Mr. Hilson argues that his second appointed counsel was ineffective because that counsel had a conflict of interest with one of the witnesses that prevented him from going to trial. As such, the Petitioner maintains that his second counsel was ineffective because he had an incentive to avoid trial which included not vigorously pursing the refiling of Mr. Hilson's motion to withdraw his plea of guilty. Mr. Hilson did not waive his right to raise ineffective assistance of counsel in a Section 2255 motion.
Criminal defendants are entitled to the assistance of counsel for their defense pursuant to the Sixth Amendment of the U.S. Constitution. U.S. Const. amend. VI; see also, Moss v. United States, 323 F.3d 445, 454 (6th Cir.2003). A right that is derivative of the right to counsel is the right to have effective assistance of counsel. Moss, 323 F.3d at 454; see also, Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The "benchmark of effectiveness `must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir.2000) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).
In Hofbauer the Sixth Circuit explained the two-part test for ineffective assistance of counsel as described in Strickland:
First a defendant must show that counsel's performance was `deficient,' involving `errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment'.... Second, even if counsel's performance is deemed deficient, a defendant must show that those deficiencies were prejudicial to the defense. To make this showing, the defendant must demonstrate that there `is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'
Hofbauer, 228 F.3d at 702 (quotations omitted).
Within the context of a guilty plea, the Sixth Circuit has recently noted:
In order to show that deficient performance prejudiced the defense when a defendant pleads guilty, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." A defendant can meet this burden by showing, for example, that there was an "affirmative defense," such as an insanity defense, that "likely would have succeeded at trial," or by showing that he or she was not competent to plead guilty. A defendant is competent if he or she "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "has a rational as well as factual understanding of the proceedings against him."
Stewart v. Morgan, 2007 WL 1451974, *4 (6th Cir.2007) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) and citing Jermyn v. Horn, 266 F.3d 257, 283 (3rd Cir.2001); Eddmonds v. Peters, 93 F.3d 1307, 1317 (7th Cir.1996)).
The record indicates that Mr. Hilson represented to the court that he was competent to enter a plea of guilty and that he entered the plea knowingly and voluntarily. Such representations of competency "constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir.1996).
Mr. Hilson has failed to show that, but for either of his counsels' errors, there is a reasonable probability he would have gone to trial. The record contains no evidence that Mr. Hilson, prior to his change of plea hearing, sought to challenge the government's evidence or his counsel's advice. Instead, the record shows that Mr. Hilson sought to reduce his sentence and only challenged his counsel's effectiveness after the government chose not to request the application of a sentencing departure under U.S.S.G. § 5K1.1.
Mr. Hilson was arraigned on 26 June 2003 and did not decide to enter a change of plea until 26 January 2004, ample time in which to consider challenging the Indictment on evidentiary grounds. Instead, as is clear from the change of plea hearing. Mr. Hilson admitted to entering a voluntary and intelligent plea in light of the supporting facts. (Doc. 28, Tr. 21). Preceding that admission, the Court, the government, and Mr. Hilson's then attorney, Neal Atway, discussed with the defendant the contingencies he faced in changing his plea. Specifically, Mr. Hilson acknowledged several times during the course of the hearing that he understood the Court could not, in sentencing the Petitioner, depart below 180 months unless the government filed a motion for substantial assistance under § 5K1.1. (Doc. 28, Tr. 11-12, 15, 17, 18-19, 20-21). In addition, the Court, the government, and his counsel, carefully detailed the best and worst case scenarios the Petitioner faced at sentencing. (Doc. 28, Tr. 15-17). Finally, Mr. Hilson's counsel addressed, in open court, his discussions with the Petitioner concerning probable sentences and the risk that a trial might compound Mr. Hilson's imprisonment time, should he not prevail. (Doc. 28, Tr. 18-19).
The record is clear that Mr. Hilson, in consultation with his attorney, chose to change his plea as part of a clearly calculated, and entirely justified, strategy to reduce the amount of time he would be imprisoned. Mr. Hilson has not established, as he must, that his first counsel's advice, that he accept a plea agreement, was objectively unreasonable in light of the facts and circumstances of this case. Nor has Mr. Hilson shown, as he must, that a reasonable probability existed that he would not have pleaded guilty had his counsel not committed the errors the Petitioner alleges.
Mr. Hilson's further argument, that his first attorney's performance was deficient for failing to file a suppression motion, is equally unconvincing. The alleged "discrepancies," highlighted by Mr. Hilson, between the report by the ATF Agent and the arresting officer, are simply not probative of the question of whether the search and seizure was constitutional. Mr. Hilson, again, has not shown that his first counsel's strategic decision not to file a suppression motion on his behalf was objectively unreasonable, or that but for Mr. Atway's action not to file a motion to suppress, the Petitioner would have proceeded to trial.
Mr. Hilson's third ground for relief alleges ineffectiveness of counsel with regard to the performance of his second, Court-appointed attorney, Damian Billak. In his papers before the Court, the Petitioner maintains that Mr. Billak's conflict of interest, which prevented him from continued representation only if Mr. Hilson were to proceed to trial, caused counsel to represent the Petitioner ineffectively on the issue of the withdrawal of his guilty plea. Specifically, Mr. Hilson alleges, first, that Mr. Billak failed to inform him of counsel's action to withdraw the Petitioner's pro se motion to withdraw his guilty plea. For two reasons the Court finds Mr. Hilson's argument fails to establish that, but for counsel's alleged error, the result of the proceedings would. have concluded differently. Warner, 975 F.2d at 1211. First, the Petitioner's counsel's "motion to withdraw previously filed motion to withdraw plea of guilty" was specifically predicated on Mr. Hilson's request. (Doc. 30: 3 CR 228). Second, Mr. Hilson could have filed an objection to Mr. Billak's filed motion, but he did not. Four months prior to Mr. Billak's currently-objected-to-action. Mr. Hilson filed pro se motions both to withdraw his guilty plea (Doc. 23: 3 CR 228), and to remove his first attorney from the case. (Doc. 24: 3 CR 228).
Instead, the record indicates that Mr. Hilson was satisfied with Mr. "Billak's efforts to withdraw the previous, pro se motion to withdraw the plea of guilty up until the Petitioner reviewed the final presentence investigation report sometime after 9 July 2004. When the report did not recommend a § 5K1.1 sentencing departure, the record shows that Mr. Hilson requested that his attorney file a motion to withdraw his plea of guilty. (Doc. 33: 3 CR 228). On 27 August 2004, Mr. Billak filed a motion to withdraw the Petitioner's guilty plea, as well as a brief in opposition to the presentence investigation report. (Doc. 34: 3 CR 228). Simultaneous with these filings. Mr. Billak fled a motion to withdraw as counsel due to a conflict of interest, about which Mr. Hilson was previously aware, should the Court grant Mr. Hilson's motion to withdraw his guilty plea. (Doc. 32: 3 CR 228). The record clearly indicates that Mr. Billak was acting to represent his client's needs as they shifted with regard to the sentencing contingencies.
In addition, Mr. Hilson maintains that Mr. Billak's 27 August 2004 motion to withdraw his client's guilty plea was insufficient because counsel failed to indicate in the papers that Mr. Hilson was misled into believing he would receive the § 5K1.1 sentencing departure, that he could have filed a motion to suppress, and could have prevailed at trial. Nothing in the papers before the Court indicate that Mr. Hilson ever contemplated proceeding to trial, or that he considered pursuing suppression of the evidence gathered the night of his arrest. As such, Mr. Hilson has not shown either that, Mr. Billak's representation fell below an objective standard of reasonableness, or that a reasonable probability existed that, but for Mr. Billak's alleged error, the Petitioner would have proceeded to trial or filed a suppression motion. Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Similarly, the Court does not find Mr. Hilson has established counsel's performance as deficient with regard to the Petitioner's assertion that he was misled regarding the § 5K1.1 sentencing departure. The evidence of the Court's change of plea hearing establishes that Mr. Hilson acknowledged, in multiple instances, the contingency of the § 5K1.1 departure. Mr. Hilson's Section 2255 argument strains credibility for the Petitioner to, now, insist that eight months after his acknowledgments at his change of plea hearing, and on the heels of a presentence report that advised against departure, his counsel was ineffective for not arguing the Petitioner was misled as to the applicability of § 5K1.1.
E. Certificate of Appealability
The Court declines to issue a certificate of appealability ("COA"). 28 U.S.C. § 2253(c) provides:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court determined that
[t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.' Id. at 483-4, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484, 120 S.Ct. 1595. In instances where a claim is procedurally defaulted, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
For the reasons stated, the Court does not find that Mr. Hilson has satisfied this showing. Accordingly, the Court declines to issue a certificate of appealability.
Finally, for the reasons set forth above, petitioner Otha Hilson, III's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.
JUDGMENT ENTRY
This Court, having contemporaneously entered its Memorandum of Opinion and Order denying Mr. Hilson's petition for relief under Section 2255, hereby, dismisses the matter with prejudice. Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Fed. R.App. P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
ORDER GRANTING PETITIONER LEAVE AND PROVIDING A COPY OF THE COURT'S 14 JULY 2008 ORDER AND JUDGMENT ENTRY
This matter comes before the Court on Petitioner's 29 August 2008 motion for leave to file a motion for reconsideration of this Court's 14 July 2008 Order, pursuant to Fed.R.Civ.P. 59(e) and Rule 60(b). (Doc. 62). The Petitioner, Mr. Hilson, maintains he failed to receive either this Court's 14 July 2008 "Memorandum of Opinion and Order Denying Petitioner Relief under 28 U.S.C. § 2255," or its Judgment Entry. (Does. 60, 61).
For the reasons discussed below, Mr. Hilson's request for leave to file a motion for reconsideration will be granted only as it pertains to arguments brought pursuant to Rule 60(b).
A motion to alter or amend a judgment, pursuant to Rule 59(e), must be filed within ten (10) days of that judgment. That rule permits the Court "to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings." York v. Tate, 858 F.2d 322, 326 (6th Cir.1988). Rule 59 specifically states that the motion is to be served not later than ten (10) days after entry of the judgment. In turn, Rule 6(b) provides that a district court "may not extend the time for taking any action under Rule 59(b)" and all courts considering the matter have uniformly held that the 10 day period may not be enlarged under any circumstances. Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2nd Cir. 2000); Rhoden v. Campbell, 153 F.3d 773 (6th Cir.1998).
This Court dismissed Petitioner's section 2255 motion on 14 July 2008. Therefore, excluding weekends, the Petitioner's motion for reconsideration under Federal Rule of Civil Procedure 59, was due on 31 July 2008. Accordingly, Mr. Hilson's motion for leave to file a motion for reconsideration is untimely under Rule 59.
However, Petitioner's motion for reconsideration also may be considered under Federal Rule of Civil Procedure 60(b):
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or applying it prospectively is no longer equitable; or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). Rule 60(c) requires Mr. Hilson file his motion "within a reasonable timeand for reasons (1), (2), and (3) no more than a year after the entry of judgment or order." What constitutes a "reasonable" time "depends on the facts of a given case including the length and circumstances of the delay, the prejudice to the opposing party by reason of the delay, and the circumstances compelling equitable relief." Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.1990). Mr. Hilson's prompt filing of a Rule 60(b) motion in this matter would be considered "within a reasonable time."
The Court will grant Mr. Hilson's motion for leave to expeditiously file a Rule 60(b) motion for reconsideration of this Court's 14 July 2008 Order denying relief under 28 U.S.C. § 2255. With this instant Order the Court will include the 14 July 2008 Memorandum of Opinion and Judgment Entry denying Mr. Hilson's section 2255 pleading. (Does. 60, 61).
IT IS SO ORDERED.
NOTES
[1] Mr. Hilson's argument in reply, that this Court should follow the Sixth Circuit's decision in Waucaush v. United States, 380 F.3d 251 (6th Cir.2004), is inapposite. Waucaush required a showing of a substantial effect on interstate commerce in the context of a conviction under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). In United States v. Chesney, 86 F.3d 564 (6th Cir.1996), this Circuit held that a § 922(g)(1) conviction comports with the Commerce Clause so long as the defendant "possessed a gun that previously had moved in interstate commerce." Chesney, 86 F.3d at 572. The Sixth Circuit has confirmed in United States v. Henry, 429 F.3d 603, 620 (6th Cir.2005) that both before and after its decision in Waucaush that Chesney has been reaffirmed, and the Circuit has continued to reject challenges, such as Mr. Hilson's, to the effect on interstate commerce sufficient to establish a violation of § 922(g). Further, the decision in Henry notes that Waucaush neither discusses, nor cites, § 922(g)(1) or Chesney. suggesting that the panel had no intention of making its holding applicable to the felon-in-possession statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2422401/ | (2007)
Robert CORTEZ, Plaintiff,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and John Wright, individually and in his official capacity, as an employee of the Equal Employment Opportunity Commission, Defendants.
No. CIV 06-1198 JB/ACT.
United States District Court, D. New Mexico.
October 16, 2007.
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Motion to Dismiss the EEOC and John Wright in His Official Capacity, and Memorandum in Support, filed July 23, 2007 (Doc. 4). The Court held a hearing on the motion on September 17, 2007. The primary issues are: (i) whether Plaintiff Robert Cortez may maintain a cause of action against the Defendants Equal Employment Opportunity Commission ("EEOC") and John Wright in his official capacity in federal court; (ii) whether the Court should replace by interlineation the EEOC and Wright, in his official capacity, with the United States; (iii) whether Cortez may maintain his common-law tort claims against the United States under 28 U.S.C. § 2674's private function analogue for liability; (iv) whether the Federal Tort Claims Act's discretionary-function bars any common-law tort claims; (v) whether Cortez can state a Bivens claim against the EEOC and Wright in his official capacity; and (vi) whether Cortez can bring a claim for unconstitutional taking under the Little Tucker Act. Because of sovereign immunity, and Congress' limited waivers of immunity, the Court will dismiss Cortez' claims against the EEOC and Wright, in his official capacity, as facially invalid under rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court will also adopt Cortez' request, in part, to change the case's caption to replace by interlineation the EEOC and Wright in his official capacity with the United States. The Court will dismiss the common-law tort claims in Cortez' First through Fourth Causes of Action, because 28 U.S.C. § 2674 is not satisfied when there is no analogous private function duty or liability in New Mexico for the EEOC's alleged negligence. And even if some theory of private liability were applicable, the FTCA's discretionary-function exception applies and bars jurisdiction over Cortez' Complaint against the United States. Further, Cortez cannot stale a Bivens action against the EEOC and Wright, in his official capacity, because there is not waiver of sovereign immunity for such claims. Finally, the Court will dismiss any claim for an unconstitutional taking because Cortez has made no effort to show that he is attempting to invoke the Court's jurisdiction under the Little Tucker Act.
FACTUAL BACKGROUND
The EEOC did not file a civil action on Cortez' behalf, but issued a right to sue letter to Cortez after completing its investigation and efforts at conciliation. See Complaint ¶ 44, at 6, filed Dec. 7, 2006 (Doc. 1), 29 U.S.C. § 626(e); 29 C.F.R. § 1626.18. Cortez was then free to file a private civil action within ninety days after the EEOC issued the right-to-sue-letter. See 29 U.S.C. §§ 626(c)(t), 626(e). Cortez filed an action, and private counsel represented Cortez in the civil action. See Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Entry of Appearance, filed Feb. 17, 2004 (Doc. 5).
In Cortez v. Wal-Mart Stores, Inc., No. CIV 03-1251 (D.N.M.2004)(Black, J.), Cortez filed a complaint against Wal-Mart Stores, Inc. for race and age discrimination under Title VII. See Complaint for Racial and Age Discrimination Under Title VII, filed Oct. 30, 2003 (Doc. 1). On January 14, 2005, the Honorable Bruce D. Black issued a Memorandum Order and Opinion which dismissed some of Cortez' claims for failure to exhaust. See Memorandum Order and Opinion at 4-6, filed Jan. 14, 2005 (Doc. 50). The claims dismissed for failure to exhaust included failure to promote and constructive discharge. See id. On May 19, 2005, a judgment was entered in favor of Cortez following a jury trial on his remaining claims. See Judgment, filed May 19, 2005 (Doc. 94). Cortez recovered from Wal-Mart for back pay, liquidated damages, interest accrued on the award from the date of that Judgment's entry, and costs. See id. On January 23, 2007, the Judgment was satisfied. See Satisfaction of Judgment, filed Jan. 23, 2007 (Doc. 128).
The alleged factual basis of Cortez' tort claims is that Wright, as the investigator for the EEOC on Cortez' charges of age discrimination, did not amend Cortez' charges or file additional charges of discrimination on Cortez' behalf with respect to a number of possible subsequent, additional claimsfailure to promote, hostile workplace, retaliation, and constructive discharge. See Complaint for Damages, and Other Relief ("Complaint") ¶¶ 44-51, at 6-7, filed Dec. 7, 2006 (Doc. 1). As a result, these claims were barred for Cortez' failure to exhaust as discrete acts required by the Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and the Tenth Circuit's opinion in Martinez v. Potter, 347 F.3d 1208 (10th Cir.2003). See Complaint ¶ 46, at 6. Cortez alleges that he informed Wright of different instances of a failure to promote, retaliation, and forced resignation, but Wright failed to amend or file additional charges of discrimination. See Complaint ¶¶ 47-49 at 6-7. Cortez also claims EEOC failed to instruct him that "he had 300 days to file additional charges of discrimination with the EEOC from the date of the last act of discrimination by his employer." Complaint ¶ 50, at 7.
PROCEDURAL BACKGROUND
Cortez' First through Fourth Causes of Action attempt to state common-law tort claims against the EEOC and Wright, in his official capacity, for alleged negligence in conducting their investigations of Cortez' charges of discrimination that resulted in some of his claims being dismissed by the Honorable Bruce Black in CIV No. 03-1251. See Complaint ¶¶ 53-72, at 7-10. In Cortez' Fifth Cause of Action, he attempts to state a constitutional claim against the EEOC and Wright, in his official capacity, for damages. See Complaint, ¶¶ 73-79, at 10-11. Wright is also sued individually for his alleged negligence in investigating Cortez' claims. See Complaint at 1. The Assistant United States Attorney representing the United States on behalf of the EEOC and Wright, in his official capacity, has not entered an appearance for Wright individually. See Notice of Entry of Appearance, filed July 12, 2007 (Doc. 3).
Cortez opposes this motion. See Plaintiff Robert Cortez' Response in Opposition to the United States of America's Motion to Dismiss Defendants EEOC and John Wright, and Supporting Memorandum ("Cortez' Response"), filed Aug. 21, 2007 (Doc. 5). The United States, on behalf of the EEOC and Wright, in his official capacity, requests that the Court dismiss Cortez' Complaint under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and for failure to state a claim against these Defendants. See Motion to Dismiss the EEOC and John Wright in his Official Capacity, and Memorandum in Support ("USA's dismissal motion"), filed July 23, 2007 (Doc. 4). Cortez argues that, because "the EEOC is in charge of discrimination charges, the filing of a party's claim is not discretionary." Cortez' Response at 7. He also argues that issuing a right to sue letter at the end of an EEOC investigation and, "[d]eciding to file one charging document when the Supreme Court mandated separate charges for discreet acts of discrimination is not discretionary." Cortez' Response at 7. Cortez submitted Ortiz v. United States Border Patrol, 39 F.Supp.2d 1321 (D.N.M.1999) (Black, J.) (, as supplemental briefing. See Notice of Attachment, filed Sept. 17, 2007 (Doc. 12)).
STANDARDS FOR DETERMINING MOTIONS FILED UNDER RULES 12(b)(1) AND 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Cortez contends that, because the EEOC and Wright submitted exhibits, their motion to dismiss was converted into one for summary judgment. See Cortez' Response at 5 (citing rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure); Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). The Court does not rely upon outside materials submitted by the EEOC and Wright in support of the USA's dismissal motion in considering whether dismissal is appropriate under either rule 12(b)(1) or rule 12(b)(6). See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (stating that "the failure to convert a 12(b)(6) motion to one for summary judgment where a court does not exclude outside materials is reversible error unless the dismissal can be justified without considering the outside materials.").
Issues about the United States' sovereign immunity, however, also implicate the federal district court's jurisdiction. If Congress has not waived sovereign immunity, the federal court does not have jurisdiction to hear the claim. The court must thus determine whether the Complaint states a cognizable cause of action against the United States to determine jurisdiction.
A. RULE 12(b)(1).
Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). The party invoking federal jurisdiction bears the burden of establishing its existence. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Miller v. United States, 710 F.2d 656, 662 (10th Cir.1983). In this, the plaintiff, Cortez, bears the burden of demonstrating the court's jurisdiction to hear his claims.
B. RULE 12(b)(6).
Under rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, and view those allegations in the light most favorable to the non-moving party and draw all reasonable inferences in the plaintiff's favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiff's obligation to set forth the grounds of his or her entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (internal citation omitted). "[T]he Supreme Court recently [...] prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(quoting Bell Atl. Corp. v. Twoinbly, 550 U.S. 544, 127 S.Ct. 1955, 1967, 1969, 167 L.Ed.2d 929 (2007)). "The Court explained that a plaintiff must `nudge his claims across the line from conceivable to plausible' in order to survive a motion to dismiss." Ridge at Red Hawk, L.L.C. v. Schneide); 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1974.)(alterations omitted). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177.
LAW REGARDING SOVEREIGN IMMUNITY
The United States cannot be sued without its consent. That Congressional consent is a prerequisite for federal court jurisdiction. As any plaintiff, Cortez bears the burden of proving that Congress has waived sovereign immunity for all of his claims.
A. GENERAL PRINCIPLES REGARDING SOVEREIGN IMMUNITY AND FEDERAL COURT JURISDICTION.
It is "axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citations omitted). See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994): United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). As with any jurisdictional issue, the party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir.1992). A waiver of sovereign immunity cannot be implied and must be unequivocally expressed. See United States v. Nordic Village, inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Murdock Mach. and Eng'g Co. of Utah, 81 F.3d 922, 930 (10th Cir.1996).
B. IMMUNITY OF FEDERAL AGENCIES
With respect to the EEOC, "a federal agency cannot be sued for damages co nomine without explicit statutory authorization." Navy, Marshall & Gordon, P.C. v. U.S. Int'l Den.-Coop. Agency, 557 F.Supp. 484, 488 n. 4 (D.D.C.1983). See Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 96 L.Ed. 534 (1952) ("When Congress authorizes one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a suable entity."). A federal department or agency may be sued only if Congress has authorized the action, because the United States is the real party in interest. See Ghandi v. Police Dep't of Detroit, 747 F.2d 338, 342-343 (6th Cir.1984)("This rule also applies to a suit against, a federal agency, such as the FBI, since the United States is the real party in interest.");" Raclin v. United States, 699 F.2d 681, 685 (4th Cir.1983)("It is well settled that the United States, as sovereign, is absolutely immune from suit except as Congress specifically provides, and any waivers of immunity are to be strictly construed."); Gardner v. I.R.S, No. 99-1176, 2000 WI 34327006, at 2 (D.N.M. Dec. 14, 2000) (Conway, J.) (citing Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952)).
C. THE FEDERAL TORT CLAIMS ACT
The only statutory authority to sue the United States for common-law torts is under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. The FTCA waives the United States' sovereign immunity in tort actions against the United States for money damages. Congress has explicitly provided, however, that the only proper party in an action under the FTCA is the United States, not the agency. See 28 U.S.C. § 2679(a); Romanach v. United States, 579 F.Supp. 1017, 1018 n. 1 (D.P.R.1984)(holding that no suit under the FTCA may lie against any agency of the United States eo nomine ); Painter v. F.B.I., 537 F.Supp. 232, 236 (N.D.Ga.1982)(holding that "[t]he FBI may not be sued eo nomine").
In enacting the FTCA, Congress defined the terms and conditions under which the United States may be sued in tort. Section 1346(b) of Title 28, United States Code, provides, in pertinent part:
[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be held liable to the claimant in accordance with the law of the place where the act or omission occurred.
A companion section of the FTCA provides that the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
Together these sections ensure that the United States is placed in the same position as a private individual by rendering the United States liable for the tortious conduct of its employees if such conduct is actionable in the state in which the United States' action or inaction occurred. The FTCA's waiver of sovereign immunity is limited, however. If the claim does not fall within the FTCA's express provisions, or if it falls within one of its exceptions, the claim is not cognizable under the FTCA, and the court must deny relief. See Williams v. United States, 50 F.3d 299, 304-305 (4th Cir.1995).
While the FTCA waives the United States' sovereign immunity for certain negligence claims, it does so only if a private person, performing the same act as the United States, would be liable under the governing state law. See 28 U.S.C. § 2674. A public regulatory function such as processing and investigating discrimination charges is a uniquely governmental function that private persons are incapable of performing. See United States v. Agronics, Inc., 164 F.3d 1343, 1345-1346 (10th Cir.1999). As the United States Court of Appeals for the Tenth Circuit stated in United States v. Agronics, Inc.:
It is virtually axiomatic that the FTCA does not apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs. Other courts invoke the same rule by the shorthand expressions of immune quasi-legislative or quasi-judicial action. The underlying principle is that the FTCA's waiver of sovereign immunity is limited to conduct for which a private person could be held liable under state tort law, and federal statutory duties regarding peculiarly administrative acts generally involve a type of conduct that private persons could not engage in, and hence could not be liable for under local law. Thus, for example, courts have rejected FTCA claims premised upon such administrative/regulatory acts or omissions as (1) the FAA's failure to take enforcement action against an entity not complying with federal laws and rules; (2) the USDA's failure to prohibit the exportation of diseaseexposed cattle; and (3) various agencies' noncompliance with proper rulemaking procedures.
164 F.3d at 1345-46 (internal citations and quotations omitted).
The FTCA also contains several exceptions that preclude the United States' liability. One of these exceptions is the discretionary-function exception, which provides that the FTCA shall not apply to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary-function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The Supreme Court of the United States has characterized § 2680(a) as the "boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
The exception must be strictly construed in the United States' favor. See U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (stating that "[w]aivers of immunity must be strictly construed in favor of the sovereign and not enlarged beyond what the language requires.") (internal citations and quotations omitted). Its application is a threshold jurisdictional issue in any case brought under the FTCA. See Johnson v. U.S. Dep't of Interior, 949 F.2d 332, 335 (10th Cir.1991).
In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Supreme Court enunciated a two-prong analysis for determining when the FTCA's discretionary-function exception applies. See id. at 536, 108 S.Ct. 1954; Domme v. United States, 61 F.3d 787, 789-90 (10th Cir.1995); Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 972-73 (10th Cir.1994); Kiehn v. United States, 984 F.2d 1100, 1102-1103 (10th Cir.1993). First, the acts or omissions must be "discretionary in nature, acts that `involve an element of judgment or choice.'" United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)(quoting Berkovitz v. United States, 486 U.S. at 536, 108 S.Ct. 1954). Second, the conduct must be "based on considerations of public policy." United States v. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954). In applying the Berkovitz v. United States analysis, the question of negligence is irrelevant: "When the government performs a discretionary function, the exception to the FTCA applies regardless of `whether or not the discretion involved be abused.'" Redmon v. United States, 934 F.2d 1151, 1157 (10th Cir.1991) (quoting 28 U.S.C. 2680(a).).
Conduct is protected under the second prong of the analysis in Berkovitz v. United States if it was or could have been, "`based on considerations of public policy.'" Kiehn v. United States, 984 F.2d 1100, 1103, 1105 (10th Cir.1993) (quoting Berkovitz v. United States, 486 U.S. at 537, 108 S.Ct. 1954). This principle is a result of the rule that the second prong requires that the challenged conduct must be, by its nature, "susceptible to policy analysis." United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. Where agency policy allows an employee to exercise discretion, there is a "strong presumption" that the acts authorized by the policy are grounded in public policy. United States v. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. Where a plaintiff alleges a negligent omission, it is "`irrelevant whether the [omission] was a matter of deliberate choice, or a mere oversight.'" Kiehn v. United States, 984 F.2d at 1105 (internal quotations omitted). "The failure to consider some or all critical aspects of a discretionary judgment does not make that judgment less discretionary and does not make the judgment subject to liability." Id.
The FTCA's discretionaryfunction exception protects the challenged conduct if it involves judgment or choice, and is the kind of conduct of a kind that could be based on public policy. See United States v. Gaubert, 499 U.S. at 324-325, 111 S.Ct. 1267. The two-prong test in Berkovitz v. United States applies equally to all government employees, regardless of their rank or position: "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 813. See United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 ("Discretionary conduct is not confined to the policy or planning level."); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. at 811, 104 S.Ct. 2755 ("Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.")(internal quotations and citation omitted).
Generally, the discretionary-function exception covers law enforcement and investigatory activities. See Hobdy v. United States, 968 F.2d 20 (10th Cir.1998)(Table), 1992 WL 149871, at *2. For example, in Pooler v. United States, 787 F.2d 868, 871 (3rd Cir.), cert. denied, 479 U.S. 849, 107 S.Ct. 175, 93 L.Ed.2d 111 (1986), the United States Court of Appeals for the Third Circuit found the discretionary-function exception covered alleged deficiencies in investigative methods that led to the plaintiff's arrest. In so doing, the Third Circuit further stated: "Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and, accordingly, courts have uniformly found them to be immune under the discretionary function exception." Pooler v. United States, 787 F.2d at 871. This enforcement and investigatory discretion implicates policy factors on how to best achieve the agency's goals and mission under the statutes and regulations it is responsible for administering. See Kelly v. United States, 924 F.2d 355, 361-362 (1st Cir.1991)(noting that decisions to investigate are at the core of law-enforcement activity and are protected by the exception); Doherty v. United States, 905 F.Supp. 54, 56 (D.Mass.1995)(explaining that process of deciding how and when to seek a search warrant is grounded in policy considerations).
Certain aspects of an investigation may be considered non-discretionary if officials fail to follow specific agency mandates or directives governing their conduct. See Couzado v. United States, 883 F.Supp. 691, 694-95 (S.D.Fla.1995), aff'd in Couzado v. United States, 105 F.3d 1389, 1395-97 (11th Cir.1997) (affirming judgment of the district court imposing liability upon the government pursuant to the FTCA because Customs agent's failure to divulge critical information and to cooperate with the DEA in executing the controlled delivery negligently compromised the safety of the passengers and the crew and proximately caused the plaintiffs' injuries.).
Ortiz v. United States Border Patrol, 39 F.Supp.2d 1321 (D.N.M.1999) (Black, J.), does not bolster Cortez' Response. In Ortiz v. United States Border Patrol, the court noted that, "in the context of activities peculiar to law enforcement, some courts have established exceptions to the principle that the proper comparison in FTCA cases is to private, nongovernment individuals." 39 F.Supp.2d at 1324. "However, these cases only serve to illustrate that there is a significant difference under the FTCA between `private persons' and government employees, and that the primary inquiry is how a private person in similar circumstances would be treated under state law." Id. The Border Patrol agents in Ortiz v. United States Border Patrol "were not engaged in a function unique to law enforcement when they stopped to render aid at the accident scene." 39 F.Supp.2d at 1325. "Thus, a private analogue for their actions is readily available" and the Border Patrol was therefore liable for its agents' actions only to the extent that a private person, in the same circumstances, would be liable. Id.
D. SUITS AGAINST FEDERAL EMPLOYEES
Likewise, an action against a federal employee in his official capacity is, in effect, an action against the United States to the extent it seeks to impose liability on the United States. See Hafer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)(holding that the real party in interest in an official capacity suit is the government and not the named official); Brandon v. Holt, 469 U.S. 464, 472 n. 2, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). An action against federal employees in their official capacities is in effect a suit against the United States for which a waiver of sovereign immunity must exist. "[A]n official capacity suit is `only another way of pleading an action against an entity of which an officer is an agent.'" Johnson v. Bd. of County Comm'rs for County of Fremont, 85 F.3d 489, 493 (10th Cir.1996)(quoting from Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). See Turner v. Houma Mun. Fire and Police Civil Sera. Bd., 229 F.3d 478, 483 (5th Cir.2000); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D.Or.2003)(holding that the plaintiff may seek relief for actions of individuals taken in their official capacities only from the United States, not from the individual defendants); Benson v. United States, 969 F.Supp. 1129, 1135 n. 6 (N.D.Ill.1997)(noting that a suit against a federal official in his official capacity is a suit against the United States). The only waiver of sovereign immunity for common-law tort actions the United States is the FTCA, and the FTCA provides that the remedy against the United States is exclusive of any remedy against the federal employee:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
28 U.S.C. § 2679(b)(1).
The basic theory of a Bivens claim is that the federal employee, by acting in violation of the constitution, is liable in his individual capacity, not in his official capacity. See F.D.I.C. v. Meyer, 510 U.S. 471, 484-486, 114 S.Ct. 996, 127 L.Ed.2d 308. As the Tenth Circuit stated in Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001):
There is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity. Instead, any action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States. Because a Bivens claim may not be brought directly against the United States as such, an "official capacity Bivens suit" would be an oxymoron.
275 F.3d at 963 (citations omitted). It is well established that the United States has not waived its sovereign immunity to be sued for constitutional torts under any theory. F.D.I.C. v. Meyer, 510 U.S. at 477, 114 S.Ct. 996; Ascot Dinner Theatre v. Small Bus. Admin., 887 F.2d 1024, 1031-32 (10th Cir.1989).
THE TUCKER ACT
The exclusive jurisdiction for claims of unconstitutional taking of private property over $10,000.00 in amount is vested in the United States Court of Federal Claims pursuant to the Tucker Act. See 28 U.S.C. § 1491(a)(1); Narramore v. United States, 960 F.2d 1048, 1051 (9th Cir.1992) ("When a property owner seeks compensation for a taking beyond the scope of the Government's condemnation action, the proper remedy is the Tucker Act; thus, when damages exceed $10,000, the proper forum is the Claims Court."); Anchor Pointe Boat-A-Minium v. Meinke, 860 F.2d 215, 218 (6th Cir.1988) ("The Tucker Act vests exclusive jurisdiction over money claims against the United States greater than $10,000 in the United States Claims Court."). The Little Tucker Act grants concurrent jurisdiction to the United States District Court in cases where the amount in controversy is less than $10,000. See 28 U.S.C. § 1346(a)(2). A plaintiff attempting to invoke the subject matter of the federal district courts bears the burden to establish his or her claim does not exceed the $10,000.00 jurisdictional limit established by the Little Tucker Act. See Colorado Dep't of Highways v. U.S. Dep't of Transp., 840 F.2d 753, 755 (10th Cir. 1988) ("A party cannot avoid the exclusive jurisdiction of the Claims Court under the Tucker Act merely by artfully pleading injunctive, declaratory or mandatory relief when the purpose of the suit is to obtain money from the United Stales in excess of $10.000."); New Mexico v. Regan, 745 F.2d 1318, 1322 (10th Cir.1984): Roedler v. Dep't of Energy, 255 F.3d 1347, 1351 (Fed. Cir.2001) (stating that "a Little Tucker Act case may proceed in the district court if recovery is limited to $10,000.")(quoting Smith v. Orr, 855 F.2d 1544, 1552 (Fed. Cir.1988)).
LAW REGARDING EEOC PROCEDURES IN ADEA CASES
It is generally the charging party's obligation to file charges under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. See 29 U.S.C. § 626(d); 29 C.F.R. § 1626.8. The EEOC's obligation is not to file or amend charges on the charging party's behalf, although it "may render assistance in the filing of a charge". under 29 C.F.R. § 1626.4. Congress has defined the EEOC's statutory role under the ADEA: "Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d).
The EEOC also has the power to investigate charges. See 29 U.S.C. § 626(a); 29 C.F.R. § 1626.15(a). In addition, the EEOC's role in processing the charges involves a balancing of factors in trying to conciliate a solution with the employer if evidence of discrimination is found. See 29 U.S.C. § 626(d). If the EEOC finds that there is sufficient evidence, the EEOC can bring a civil action to enforce the rights of an employee if it so chooses. See 29 U.S.C. § 626(c)(1); 29 C.F.R. § 1626.15(a) & (d).
ANALYSIS
The Court will dismiss Cortez' claims against the EEOC and Wright, in his official capacity, as facially invalid under rule 12(b)(1). The Court will also will grant Cortez' request, in part, to change the case's caption to replace by interlineation the EEOC and Wright in his official capacity with the United States. The Court will then dismiss the common-law tort claims in Cortez' First through Fourth Causes of Action in his Complaint against the United States, because 28 U.S.C. § 2674 is not satisfied when there is no analogue of private individual duty or liability for the EEOC's alleged negligence in New Mexico. Moreover, because the United States is able to satisfy both prongs of the Berkovitz v. United States analysis with respect to the challenged acts and omissions in this action, the FTCA's discretionary-function exception applies and bars jurisdiction over Cortez' Complaint against the United States even if some theory of private party liability were applicable. Furthermore, Cortez cannot state a Bivens action against the EEOC and Wright, in his official capacity, because there is no waiver of sovereign immunity for such claims against the United States and its agencies, or federal officials in their official capacities. Lastly, the Court need not decide whether Cortez' allegations against the United States are sufficient to state a claim for an unconstitutional taking because Cortez has not made an effort to show that he is attempting to invoke the Court's jurisdiction under the Little Tucker Act.
I. THE COURT WILL DISMISS CORTEZ' CLAIMS AGAINST THE EEOC AND WRIGHT, IN HIS OFFICIAL CAPACITY, BECAUSE THEY ARE IMPROPERLY NAMED AS PARTIES.
Cortez has named the EEOC and Wright, in his official capacity, as parties, see Complaint at 1, but the only proper party is the United States. Cortez has not named the United States. Accordingly, Cortez' claims against the EEOC are facially invalid, and the Court will dismiss them under rule 12(b)(1). Moreover, the Court will dismiss Cortez' claims against Wright, in his official capacity, as well. See Williams v. United States, 54 Fed. Appx 290, 292 (10th Cir.2002)("[FTCA] claims are properly brought only against the United States and not against individual officers.").
II. THE COURT WILL ADDRESS CORTEZ' CLAIMS AGAINST THE UNITED STATES.
Cortez does not vigorously dispute that he improperly named the EEOC and Wright in his official capacity. See Cortez' Response at 8-9. Indeed, Cortez concedes that the United States "may be the real party in interest." Cortez' Response at 9. Nevertheless, Cortez makes a policy argument why the Court should create an exception for the EEOC. See Cortez Response at 7, 9.
Cortez suggests that the EEOC's mandate as an agency uniquely qualifies it as an agency that can be sued. See Cortez Response at 7. Cortez argues that the EEOC is unlike any other agency of the United States. See Cortez Response at 9. Cortez notes that the EEOC has the option of representing individuals in employment discrimination matters and, as such, if an agency can sue, the Court should grant leave to sue the EEOC as a named party. See Cortez Response at 4.
The Court need not disagree with Cortez' characterization of the EEOC or his rationale for an exception for the EEOC. It is sufficient for the Court to note that Cortez is making these arguments to the wrong branch of the United States government. Given controlling Supreme Court and Tenth Circuit precedent, Cortez is not free to sue the EEOC, because Congress has not waived its sovereign immunity. See 28 U.S.C. 1346(b); 28 U.S.C. § 2679(a); United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Murdock Mach. and Eng'g Co. of Utah, 81 F.3d 922, 930 (10th Cir.1996). Accordingly, Congress, not this District Court, is the proper entity to make an exception from the general rules embodied in its statutes.
More forcefully, Cortez contends that the United States entered its appearance on behalf of the EEOC and Wright, in his official capacity. See Cortez Response at 8-9. Specifically, Cortez asserts that the United States has entered its appearance on behalf of the EEOC and Wright, in his official capacity, without asking for the Court's leave to enter a special appearance. See id. at 8. Cortez maintains that, because there are no notice or service of process issues, the Court can change the case's caption by interlineation, and the real party in interest can be named. See id. at 8-9. Cortez suggests that, once the Court has made its decision concerning the substantive issues, Cortez can file a motion to change the name of the real party in interest by interlineation, without prejudice to the United States or Wright. See Cortez Response at 9.
The United States does not respond to this argument and presumably does not oppose this suggestion. See Reply in Support of Motion to Dismiss the EEOC and John Wright in His Official Capacity, and Memorandum in Support, filed Sept. 9, 2007 (Doc. 7). The United States has proceeded to brief extensively the substantive issues and apparently also wants an answer to the questions. See USA's dismissal motion at 3-16. Accordingly, the Court will adopt Cortez' request in part and change the case's caption to replace by interlineation the EEOC and Wright, in his individual capacity, with the United States.
III. CORTEZ' CLAIMS FAIL TO STATE COMMON-LAW TORT CLAIMS FOR WHICH A PRIVATE PARTY WOULD BE LIABLE AND ARE THUS NOT WITHIN THE FTCA'S WAIVER OF SOVEREIGN IMMUNITY.
If there is no analogous private function, duty, or liability in New Mexico. for the EEOC's alleged negligence, then the "private individual" requirement of 28 U.S.C. § 2674 is not satisfied. See United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963): Green Acres Enters. v. United States, 418 F.3d 852, 857 (8th Cir.2005)(holding that alleged errors in enforcement and permitting decision under the Clean Water Act are uniquely governmental and do not give rise to FTCA liability); Jayvee Brand, Inc. v. United States, 721 F.2d at 396 (dismissing a tort claim against the federal government based upon actions of the Consumer Product Safety Commission because the actions involved conduct in which private person would not engage); First Nat. Bank in Albuquerque v. United States, 552 F.2d 370, 376-77 (10th Cir. 1977). There is no FTCA liability, because there is no private analogue to the EEOC's work in processing and investigating discrimination charges.
Cortez views the EEOC as his lawyer. See Cortez' Response at 4 ("And although, the EEOC investigator may or may not be an attorney, by the very nature of the investigation that must be completed, the investigator must be well versed in the intricacies of the discrimination laws so the investigator can advise the charging party."). The EEOC, however, does riot occupy a lawyer's fiduciary/professional service position vis-a-vis charging parties. The EEOC could run afoul of state laws concerning the unlawful practice of law if it offered legal advice to charging parties. See N.M.S.A.1978 §§ 36-2-27, 36-2-28. Ultimately, Cortez, not the EEOC, is responsible for knowing the law, including any changes that may affect his rights.
The EEOC had no state law duty to Cortez to advise or instruct him on how to protect his legal rights under the ADEA. Nor has Cortez pointed to any federal law, regulation, or guidance requiring the EEOC to become his legal advisor. Any assistance the EEOC provided Cortez was pursuant to its discretionary authority to further the goals and purposes of the ADEA and regulations, not under some duty that state law created. See 29 U.S.C. § 626(d); 29 C.F.R. §§ 1626.8, 1626.4.
Even if the EEOC's actions were somehow deemed in violation of the statutes or regulations, that breach would not create a state-law duty. See Florida Auto Auction. of Orlando, Inc. v. United States, 74 F.3d 498, 505 (4th Cir.1996)(noting that a failure to follow a regulation is not a breach of any state-law duty); Geo. Byers Sons v. East Europe Import Export, 463 F.Supp. 135, 137-138 (D.Md.1979)(observing that the scope of waiver of immunity in FTCA is generally limited to "ordinary commonlaw torts," not violations of federal statutes and regulations); Central Airlines, Inc. v. United States, 169 F.3d 1174, 1175 (8th Cir.1999)(explaining that the misrepresentation of an agency's regulations does not give rise to a state-law tort). Thus, the Court will dismiss Cortez' common-law tort claims in the First through Fourth Causes of Action of his Complaint, because they do not fall within the waiver of sovereign immunity in the FTCA for liability as a private party.
IV. EVEN IF SOME THEORY OF PRIVATE-PARTY LIABILITY APPLIED, THE DISCRETIONARY-FUNCTION EXCEPTION IN THE FTCA BARS THE CLAIMS.
Because the United States is able to satisfy both prongs of the Berkoeitz v. United States analysis with respect to the challenged acts and omissions in this action, the FTCA's discretionary-function exception applies and bars jurisdiction over Cortez' Complaint. Judgments on how to investigate violations or to enforce federal law by officials charged with their implementation are permeated with discretion. See United States v. Agronics, Inc., 164 F.3d 1343, 1345-46 (10th Cir.1999). Administrative and enforcement activities are immune under the discretionary-function exception, because they are analogous to prosecutorial decisions whether, when, and against whom to initiate prosecution. See Pooler v. United States, 787 F.2d 868, 871 (8th Cir.1986).
Cortez has pointed to no specific agency mandates or directives that the EEOC or Wright, in his official capacity, violated. Cortez' claims are, in essence, that the EEOC did not advise him of a change in case law. See Cortez' Complaint ¶¶ 44-46, at 6. The EEOC had no duty to do so, and such advice, if given, would be discretionary.
The role of the EEOC, at the investigative and processing stage, is not to be Cortez' advocate but to work with both the charging party and the employer to evaluate the merits of the charges and seek a resolution of the charges acceptable to all parties. The EEOC's role in the investigation of charges involves a balancing of factors to evaluate the charge allegations in light of all the evidence obtained. See Sabow v. United States, 93 F.3d 1445, 1453-54 (9th Cir.1996)(explaining that decisions how to investigate, who to investigate, and how to present evidence to proper authorities are classic examples of discretionary conduct). That role involves both judgment and the balancing of policy factors under the AREA and applicable regulations. Accordingly, the discretionary-function exception to the FTCA bars Cortez' common-law tort claims in his First through Fourth Causes of Action in his Complaint.
V. SOVEREIGN IMMUNITY BARS CORTEZ' CONSTITUTIONAL DAMAGES CLAIMS.
To the extent that Cortez is attempting to state a Bivens action against the EEOC and Wright, in his official capacity, there is no waiver of sovereign immunity for such claims against the United States and its agencies, or federal officials in their official capacities. See FDIC v. Meyer, 510 U.S. at 484-485, 114 S.Ct. 996; Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir.1997). Sovereign immunity bars the claims by Cortez seeking monetary damages for alleged tortious violations of the Constitution by the EEOC and Wright in their official capacities.
It may be that the Fifth Cause of Action is a claim for an unconstitutional taking of private property. The Court need not decide whether the allegations are sufficient to state a claim for an unconstitutional taking, but will leave that issue for another day. While the Little Tucker Act, 28 U.S.C. § 1346(a)(2), grants concurrent jurisdiction to the United States District Court in cases where the amount in controversy is less than $10,000, see 28 U.S.C. § 1346(a)(2), a plaintiff attempting to invoke the subject matter of the federal district courts bears the burden to establish his claim does not exceed the $10,000.00 jurisdictional limit established by that Act. See Colorado Dep't of Highways v. U.S. Dep't of Transp., 840 F.2d 753, 755 (10th Cir.1988). Cortez has made no effort to show he is bringing a claim under the Little Tucker Act.
IT IS ORDERED that the Motion to Dismiss the EEOC and John Wright in His Official Capacity, and Memorandum in Support is granted in part. Plaintiff Robert Cortez' claims against Defendants EEOC and John Wright, in his official capacity, are dismissed. The Court will grant Cortez' request, in part, to change the case's caption to replace by interlineation the EEOC and Wright, in his official capacity, with the United States. The common-law tort claims in Cortez' FiDst through Fourth Causes of Action in his Complaint against the United States are dismissed with prejudice. Cortez' Fifth Cause of Action is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2634710/ | 90 P.3d 98 (2004)
2004 WY 57
Rodney Lorenzo BROWN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 02-257.
Supreme Court of Wyoming.
May 18, 2004.
*99 Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.
*100 Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Vicci M. Colgan, Senior Assistant Attorney General.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
VOIGT, Justice.
[¶ 1] In June 2002, a Natrona County jury found the appellant, Rodney Lorenzo Brown, guilty of felony larceny, a violation of Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2003), and misdemeanor possession of marijuana, a violation of Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2003). On appeal, the appellant contends that the evidence was insufficient to sustain his felony larceny conviction, that several witnesses testified to matters for which they had no personal knowledge and their testimony was speculative, irrelevant, and prejudicial, and that his trial counsel was ineffective in not objecting to this witness testimony. We affirm.
ISSUES
1. Was the evidence presented at trial insufficient to support appellant's grand larceny conviction?
2. Did plain error occur at trial when two State witnesses testified as to their impressions, opinions and beliefs of what occurred on the videotape, thereby invading the province of the jury, and when another State witness testified to matters of which she had no personal knowledge?
3. Did defense counsel render ineffective assistance of counsel in failing to object to testimony at trial?
FACTS
[¶ 2] On the morning of January 7, 2002, Ayres Jewelers' employee Dawn Miller (Miller) placed a necklace and attached tanzanite pendant (necklace) in a display case near the store's front door, and closed the display case.[1] The necklace, with a retail value of $3,700.00, was mounted on a bust. Miller positioned the bust in the display case so that it faced toward the street outside the front of the store (the case was situated so it could be viewed from the sidewalk outside the store). The display case had two sliding glass doors, which doors were not locked. Miller centered the bust on the right side of the display case (as one faces the case from inside the store), closest to the right-hand sliding glass door. According to Miller, the right-hand sliding glass door could be opened easily "without pressing your fingers against it," it "slides very easily." Dan Halferty, the store manager, added that the right-hand sliding glass door could be "opened with a shoulder or elbow...."[2]
[¶ 3] Mary Ann Stratton (Stratton), another store employee, went to lunch at 12:00 p.m. on January 7th. Miller had no reason to believe that the bust had been disturbed prior to noon January 7th, nor was she aware of anyone that expressed a particular interest in the necklace that day. According to Miller, employees customarily "look at everything" when they leave; "we're so familiar with the items that, for a case to be opened slightly or something slightly out of line from the way we set it out, it's [immediately] noticeable." Halferty similarly testified to his, and the employees', customary practices:
A. Anytime that we walk by a display case, ... it's common practice to check to see what things look like, to see where they are, just to make sure the subjects haven't been moved or tipped over, that it's in full view of everybody's vision, especially of the street; because that's something *101 that we can't see specifically from in the store, because all of the merchandise faces outward. So if you were to walk up and look at the case from the back, hence, again, you wouldn't see anything; there's nothing there to look at; it all faces towards the street.
Q. And again, when you return from lunch, is it the habit of the employees to check the condition of those cases?
A. Yes.
[¶ 4] Miller recalled a "fairly good lunch rush" January 7th. A "man of color" (later identified as the appellant) and a woman entered the store between 12:35 p.m. and 12:40 p.m., while Miller was assisting another customer. The man "stayed down [front] by the door" most of the time, while the woman came further into the store and began looking through cases. Miller noticed the man "wandering around a little bit by the door" and the woman said she was "just looking." They ultimately left separately, without making a purchase. Halferty testified that, based on a videotape obtained from the store's security system, the man and the woman were in the store less than two minutes.
[¶ 5] Stratton returned to the store about 12:55 p.m. and, according to Miller, Stratton noticed that the front display case's right-hand sliding glass door was open and the bust was turned, with no necklace. Miller also observed firsthand that the bust was turned. The security system videotape shows that by 1:05 p.m., two or three store employees were conferencing and by 1:25 p.m., it was "plainly obvious" that the employees had begun searching for the missing necklace.
[¶ 6] Ann Bartels, the appellant's wife at the time, testified that on January 7th, she accompanied the appellant to Ayres Jewelers to look at wedding rings. According to Bartels, the appellant wore jeans, a gray sweatshirt, and a leather coat. He usually also wore a Saints football team hat. The two left the store and decided to drive to another location for lunch. On the way, Bartels observed an inch of gold chain in the appellant's pocket. That made Bartels angry because if the appellant "took something from a jewelry store, that wasn't right."
[¶ 7] Bartels recalled telling a detective that the chain she observed in the appellant's pocket looked like the same chain that was depicted in a photograph the detective showed her, but testified that she could not say the two were one and the same because she did not see the whole necklace or the whole chain that was in the appellant's pocket. She also claimed that the detective "kept trying to tell me that he wanted me to say that I knew that that was the necklace for sure." Casper Police Department Detective Derrick Dietz (Dietz) testified that he showed Bartels a photograph of the stolen necklace, and Bartels stated that the chain in the photograph looked "very similar" to what she had observed in the appellant's pocket, and with respect to the distinctive herringbone design of the stolen necklace, Bartels stated that it was the "right design, and the basic size of this chain would be what she had seen."
[¶ 8] Based on information obtained from Bartels and the jewelry store's security system videotape, Dietz was able to identify specific clothing that the appellant was wearing the day of the theft, including a Saints hat, a gray hooded sweater-type jacket or shirt with blue stripes down the arms, and a dark coat. While executing a search warrant in the appellant's bedroom, Dietz discovered a Saints hat, a gray hooded sweater with blue stripes down the arms, and several dark jackets. The officer never located the stolen necklace. Dietz then interviewed the appellant, who denied any involvement in the theft and denied being at the jewelry store January 7th. When confronted with pictures obtained from the store's security system videotape, the appellant admitted to having been in the jewelry store, but otherwise denied involvement in the theft.
[¶ 9] The appellant chose to testify at trial. He testified that Bartels lost her wedding ring, so the two were looking at wedding rings on January 7th. Upon entering the Ayres Jewelers store, Bartels went to the counter. The appellant accompanied her for a brief minute but when no one helped them, he "milled around up at the front" of the *102 store. The appellant stated that he saw the necklace at issue in one of the display cases near the front of the store. He was interested in the ring next to the necklace and tried to get Bartels to come and look, but Bartels was "doing her own thing."
[¶ 10] According to the appellant, the two left the store to "go eat" and, while the appellant was driving to that location, he pulled a gold chain with a ring on it out of his pocket and showed it to Bartels, stating "Ann, look at this." The appellant testified that the chain was one that a former girlfriend had given him, and he was just "goofing off" because Bartels was "high strung" and he wanted to "get a rise out of her." The officers never located a gold chain containing a ring during their search of the appellant's residence, or his person. The appellant denied stealing the necklace from the jewelry store and characterized his relationship with Bartels as "rocky" at the time she spoke to the police about what she observed in the appellant's pocket. The two had apparently divorced by April 2002.
[¶ 11] The appellant ultimately was charged in an Amended Information with larceny, a felony, in violation of Wyo. Stat. Ann. § 6-3-402(a) and (c)(i), and possession of marijuana, a misdemeanor, in violation of Wyo. Stat. Ann. § 35-7-1031(c).[3] On June 4, 2002, a jury found the appellant guilty of both offenses. The district court sentenced the appellant to concurrent terms of imprisonment for four to eight years on the larceny conviction and ninety days on the possession of marijuana conviction, and to pay restitution and other fees. The appellant appeals from the district court's judgment and sentence; however, the appellant does not raise any appellate issues concerning his possession of marijuana conviction.
DISCUSSION
Sufficiency of the Evidence
[¶ 12] The appellant first argues that the evidence was insufficient to sustain his felony larceny conviction. We have said that, when
reviewing an appeal based on sufficiency of the evidence, we view the evidence, and any applicable inferences based on the evidence, in a light most favorable to the State. Nixon v. State, 994 P.2d 324, 329 (Wyo.1999); and see Pool v. State, 2001 WY 8, 17 P.3d 1285 (Wyo.2001). In conducting such a review, we do not substitute our judgment for that of the jury; rather, we determine whether a quorum of reasonable and rational individuals would, or even could, have found the essential elements of the crime were proven beyond a reasonable doubt. Id.
McFarlane v. State, 2001 WY 10, ¶ 4, 17 P.3d 31, 32 (Wyo.2001). Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence, and when reviewing the evidence on appeal, we do not consider conflicting evidence presented by the unsuccessful party. Allen v. State, 2002 WY 48, ¶ 58, 43 P.3d 551, 570 (Wyo.), cert. denied, 537 U.S. 899, 123 S.Ct. 201, 154 L.Ed.2d 170 (2002); Williams v. State, 986 P.2d 855, 857 (Wyo.1999).
[¶ 13] The jury found the appellant guilty of felony larceny. Wyo. Stat. Ann. § 6-3-402 provides, in pertinent part:
(a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.
...
(c) Except as provided by subsection (e) of this section, larceny is:
(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more; ...[.]
The district court instructed the jury as follows regarding the elements of felony larceny:
*103 YOU[] ARE INSTRUCTED that the elements of the crime of Larceny, as charged in Count I, of this case, are:
1. On or about the 7th day of January, 2002
2. In Natrona County, Wyoming
3. The Defendant, Rodney Lorenzo Brown
4. Stole, took and carried, led or drove away
5. Property of another of the value of $500.00 or more
6. With intent to deprive the owner or lawful possessor.
The only element at issue on appeal is whether it was the appellant who stole, took and carried, led or drove away the necklace.[4]
[¶ 14] We find that the evidence and the reasonable inferences that may be drawn from it, when viewed in a light most favorable to the State, was sufficient for a rational jury to conclude beyond a reasonable doubt that the appellant stole the necklace. In a larceny case, the "`[o]pportunity to commit the crime, ... when linked with other incriminating facts, may establish the guilt of the defendant.'" Fischer v. State, 811 P.2d 5, 7-8 (Wyo.1991) (quoting Wells v. State, 613 P.2d 201, 203 (Wyo.1980)); see also McGarvey v. State, 2002 WY 149, ¶ 16, 55 P.3d 703, 706 (Wyo.2002) and Downs v. State, 581 P.2d 610, 616 (Wyo.1978) (burglary cases). Likewise, the possession of recently stolen property "`is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required.'" Downs, 581 P.2d at 615 (quoting Newell v. State, 548 P.2d 8, 13 (Wyo.1976)).[5]
[¶ 15] The morning of January 7th, Miller placed the necklace (mounted on a bust) in a display case near the front door of the store; the item was placed on the right side of the display case nearest the right-hand sliding glass door, which door was unlocked and easily slid open. She positioned the bust so that it was facing the street outside the store. Later that day, the appellant testified that he and Bartels went to Ayres Jewelers to look at wedding rings. Miller estimated that the two arrived at the store between 12:35 p.m. and 12:40 p.m. The store's security system videotape (when adjusted to the actual time of day)[6] confirms this, indicating that the two entered the store around 12:42:53 p.m.
[¶ 16] According to Miller, the appellant stayed down front by the door most of the time. Importantly, the appellant himself testified that he "milled around" at the front of the store and in fact saw the necklace at issue in a display case near the front of the store because he was interested in the ring next to the necklace. At about 12:43:41 p.m., the appellant appears on the videotape to move within twenty-eight inches of the display case's glass. At about 12:44:56 p.m. on the videotape, just over two minutes after entering the store, the appellant and Bartels have left the store. Miller testified that they left separately.
[¶ 17] Almost immediately thereafter, while the appellant and Bartels were driving to another location, Bartels observed an inch of gold chain in the appellant's pocket. The appellant testified that he pulled a gold chain from his pocket and stated "Ann, look at this." When Dietz showed Bartels a photograph of the stolen necklace, Bartels stated that it looked like the same chain she observed in the appellant's pocket, but she hadn't seen the whole necklace or chain at the time. According to Dietz, Bartels stated that the chain she observed on the appellant's person was "very similar" to the pictured stolen necklace, and was the "right [herringbone] design" and "basic size" of the distinctive, pictured jewelry. The comparison was such that, as Bartels testified, she *104 became "angry" because she suspected that the appellant may have stolen the chain from the jewelry store.
[¶ 18] At approximately 12:55 p.m., Stratton returned from lunch and noticed that the front display case's right-hand sliding glass door was open, and the bust was "turned, with no necklace." There is no evidence on the security system videotape, or in the record as a whole, indicating that anyone other than the appellant went near this particular display case between 12:43:41 p.m. and 12:55 p.m.
[¶ 19] The appellant's argument on this issue essentially details the testimony of Miller, Halferty, Dietz, Bartels, and Officer Carr, while advocating the appellant's own view of that testimony and what particular inferences could and should be drawn from it.[7] However, the applicable standard of appellate review mandates a contrary approach; the evidence, and the reasonable inferences based on it, are to be viewed in a light most favorable to the State. We also note that a considerable portion of the appellant's argument is devoted to Halferty's and Dietz's testimony characterizing certain "shadows" on the security system videotape (an issue we will discuss in the next section of this opinion). We did not consider this disputed testimony in evaluating whether the evidence was sufficient to sustain the appellant's felony larceny conviction, and find that the evidence clearly was sufficient even in the absence of such testimony.
Witness Testimony
[¶ 20] The appellant next argues that portions of testimony by Halferty, Dietz, and Miller constituted plain error. The appellant's trial counsel did not object to any of the challenged testimony at trial. On appeal, it is therefore incumbent upon the appellant to demonstrate plain error in that "the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Compton v. State, 931 P.2d 936, 939 (Wyo. 1997).
[¶ 21] The appellant first contends that Halferty and Dietz erroneously testified to their "impressions, opinions and beliefs... formed from watching the security camera's videotape," which testimony was not based on the witnesses' personal knowledge and as a result was speculative, misleading, irrelevant, and prejudicial in violation of W.R.E 401, 402, 403, 602, and 701.[8] The *105 appellant's argument focuses specifically on testimony: (1) by Halferty, prior to the videotape's admission as a trial exhibit, that while an individual (later identified as the appellant) is in the vicinity of the display case containing the necklace, it "appears that there could very well be an arm over the neck that the [necklace] is on" and that the "stand that the [necklace] is on has [then] been turned about 90 degrees"; and (2) by Dietz, while playing the security system videotape for the jury, that a "shadow" appearing on the tape while the appellant is within twenty-eight inches of the display case is an "arm shadow" and that later on the tape the bust display had been "changed."
[¶ 22] The record is clear regarding what occurred at trial. The store's security system included four fixed video cameras, at least one of which showed images within twenty-eight inches of the front display case containing the necklace at issue. In recording images from the four video cameras onto a videotape, the security system cycled through each camera approximately every six to seven seconds and slowed the videotape in order to compress a long period of time onto a single tape. Due to the resulting "speed problems," the tape apparently must be "frame advanced" rather than simply playing the tape.
[¶ 23] Halferty, the jewelry store manager, had been employed by Ayres Jewelers for over two years.[9] Halferty was not in the store January 7, 2002, but was familiar with the stolen necklace, its value, the store's layout, the store's security system and procedures, and the identities of other customers appearing on the security system videotape. He viewed the videotape with Dietz on January 9, 2002. The disputed testimony follows:
[Prosecutor:] How were you able to identify this one individual as being the person who had taken the item?
A. From the amount of time that was spent at the forward entry area of the store.
Q. Okay. And as you watch that person during that time period, did you notice any activity associated with the display case?
...
A. Okay. What had appeared to happen was that an individual walked towards the front of the store where the display case is; appeared to concentrate an interest in the lower right-hand side of that case as well as the center of the case. The tanzanite piece was just off center, towards the right as you face toward the street, which would allow it to be in full reach if you were to slide that door open maybe six or eight inches. There's a point when we were reviewing the tape that there appears that there could very well be an arm over the neck that the neck piece is on. There's a brief delay there. And then the next succession, in the shadows, shows that the actual neck piece andor the stand that the neck piece is on has been turned about 90 degrees. I believe that neck piece was attached toor the necklace itself was attached to the neck stand by two small wire bars which, if it was to be grabbed very quickly, would force that to turn. At that point, the same individual turned. All the subsequent photos, from that point on, appear that thethat the neck stand has been turned about 90 degrees and stays in that position for the remainder of the tape.
Q. What do you use to base your conclusion that the neck stand was turned, or the bust was turned?
A. The shadow, with the sun shining on the shadow, the neck stand, itself, has a width dimension which appears to be quite wide. And at the several seconds later, that same neck stand appears to be turned sideways and just very miniscule in its dimension.
[¶ 24] Dietz, a law enforcement officer for nearly fourteen years and a detective for over three years, had handled "[e]verything from arson to stealing bubble gum to homicide cases" and was assigned to investigate the instant case. It is evident from Dietz's testimony that he was familiar with the layout of the store (the scene of the crime) and the store's video security system. The security system videotape was *106 admitted into evidence, without objection, during Dietz's testimony and a portion of the videotape (beginning when the appellant and Bartels entered the jewelry store and ending when they left the store) was played for the jury during the trial. On appeal, the appellant does not meaningfully question the admissibility of the security system videotape and its contents.[10] Dietz's testimony, in pertinent part, follows:
[Prosecutor:] ... [I]s this the shadow we talked about?
A. Yes. This is the bust in the display.
...
Q. Watching this series of photographs, carefully, do you see Mr. Brown in the background?
A. Yes.
Q. What do you see him do?
A. He steps right over to the opening part of the display, the side that you would get ahold of to slide it open.
Q. And at 1:43:41 [12:43:41], again, what do we see in this picture?
A. That's him getting closer. He's getting real close to that, within 28 inches of the glass.
Q. Do you see what appears to be an arm or a hand anywhere?
A. You see here in the shadow, the shadow going down towards the display piece. I can't differentiate if that's reaching at it or if that just happens to be where there's a movement being caught, opening the door, or what it is; but you can see an arm shadow.
Q. What is he moving to as he moves towards the corner of the screen?
A. Now he's moved, getting within that 28 inches. And you can see a shadow on the floor. So he's getting right up close to theif this were the glass, he's getting right up close to it.
Q. Again, can you see him by the case in the background here?
A. Yes; still standing here.
Q. Again, is thatfrom all of the angles, is that him by the case again, now completely underneath the camera?
A. Yeah. You cannot see any part of him, just his shadowing on the floor.
Q. And again, when we switch to the angle back to the store, is that still Mr. Brown at the case?
A. Yeah. And now he appears to be kind of bladed to the camera, not so much face or back, butbut bladed to, open.
...
Q. Now, we talked about shadows. And what's different about this now than when we earlier looked at itwhen you and Mr. Halferty looked at the film?
A. Even witheven with Rodney Brown still beingcausing this shadow on the floor over here, you can see the change in this bust display right here. It used to be flat and more of a solid picture, like a face-on silhouette; and now you see it's been changed; it's been moved.
...
Q. And that only occurred after Mr. Brown was near the case; is that true?
A. Correct.
[¶ 25] The premise of the appellant's argument appears to be that neither Halferty, nor Dietz, was present at the jewelry store January 7, 2002, particularly during the events depicted on the videotape. While a "`witness must have perceived firsthand the pertinent events or matters,'"[11] we note generally that other courts have, under certain circumstances, allowed witnesses with personal knowledge, but who were not present *107 during the actual events depicted on a security system videotape, to express a lay opinion regarding the images contained on the videotape. See, for example, United States v. Rivera-Maldonado, 194 F.3d 224, 236-37 (1st Cir.1999); United States v. Stormer, 938 F.2d 759, 761-64 (7th Cir.1991); United States v. Jackson, 688 F.2d 1121, 1123-25 (7th Cir.1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 797 (1983); United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980); Robinson v. People, 927 P.2d 381, 384 (Colo.1996) (collecting cases); and Brent G. Filbert, Admissibility of Lay Witness Interpretation of Surveillance Photograph or Videotape, 74 A.L.R. 5th 643 (1999) (collecting cases); and generally United States v. Stanley, 896 F.2d 450, 452 (10th Cir.1990) and Diane M. Allen, Admissibility of Visual Recording of Event or Matter Giving Rise to Litigation or Prosecution, 41 A.L.R.4th 812 (1985 and Supp. 2002) (collecting cases).
[¶ 26] Nevertheless, a protracted analysis is unnecessary because it remains the appellant's burden to demonstrate on appeal that, even if we were to assume that Halferty and/or Dietz offered some form of improper opinion testimony, such testimony denied the appellant a substantial right resulting in material prejudice. Worcester v. State, 2001 WY 82, ¶¶ 7, 11, 30 P.3d 47, 50, 51 (Wyo.2001). Material prejudice can be established by demonstrating a reasonable possibility that, in the absence of the challenged testimony, the verdict may have been more favorable to the appellant. Id., 2001 WY 82, ¶ 12, 30 P.3d at 52.
[¶ 27] The appellant's argument as to material prejudice is quite conclusory. He merely declares that the referenced testimony dominated the mind of the jury (preventing it from making a rational determination of the truth), impermissibly invaded the province of the jury, and was misleading and unfair. Generally, an appellant "has to do more than conjecture about what the jury could have believed" and a "mere allegation of prejudice will not suffice to invoke the plain error rule." Scheikofsky v. State, 636 P.2d 1107, 1111 (Wyo.1981); see also Worcester, 2001 WY 82, ¶ 12, 30 P.3d at 52. Based on the following considerations, we find that the appellant has not established the requisite prejudice: (1) the evidence that the appellant stole the necklace was rather compelling, even in the absence of the testimony at issue;[12] (2) the actual security system videotape, including the portions Halferty and Dietz referred to during their "shadows" testimony, was ultimately played for the jury in open court and also admitted, without objection, into evidence as an exhibit (complete with instructions on how to play the videotape); (3) the appellant had an opportunity to cross-examine both witnesses; (4) the prosecutor emphasized the videotape's actual contents, and did not specifically reference the disputed testimony, during closing argument;[13] (5) the appellant testified that he saw the necklace and pendant in the display case when he was in the jewelry store and by 12:55 p.m., Stratton had discovered the necklace was missing and Miller saw firsthand that "the bust was turned"; and (6) the district court instructed the jury that in
determining the weight to be given to an opinion expressed by a witness, you should consider the credibility of the witness, the extent of the witness's opportunity to perceive the matters upon which the opinion is based and the reasons, if any, given for it. You are not required to accept such an *108 opinion but should give it the weight to which you find it entitled.
[¶ 28] The appellant next argues that Halferty lacked the requisite personal knowledge to testify that "it was known that the bust had not been moved prior to Mr. Brown entering the store and that the necklace was in the case when Ms. Stratton went to lunch" because "the State did not put Ms. Stratton on the stand and therefore did not establish this fact." This characterization of Halferty's testimony does not accurately reflect Halferty's actual testimony (previously set forth herein) as to his, and the store employees', customary practices in inspecting the store merchandise. That aside, the testimony did not prejudice the appellant because the appellant testified that the necklace was present in the front display case while he was in the jewelry store (at some point after 12:42 p.m.).
[¶ 29] The appellant further argues that Dietz lacked the requisite personal knowledge to testify that "Mr. Brown was the only individual on the tape that had the opportunity to steal the necklace, ... [Dietz] not having viewed the entire tape from 9:00 a.m. until 1:20 p.m." Dietz testified that he was able to establish that "the necklace was still in the store prior to [Stratton] leaving the store to go to lunch," presumably based on his investigation, so he and Halferty viewed the tape beginning a "little bit before the noon hour" and proceeded to identify the individuals who appeared on the videotape. According to Dietz, only one segment of the tape had "people up in the area where the necklace was displayed." The following colloquy occurred during Dietz's testimony:
[Prosecutor:] Could you identify any person who would have had the opportunity, directly at that case, to commit this theft?
A. Yes.
Q. How many people could you identify that had that opportunity?
A. One.
Q. And, in fact, have you reviewed this tape?
A. Yes.
...
Q.... So you and Mr. Halferty were able to narrow it down to this hour and this particular individual; is that true?
A. Correct.
...
[The appellant's trial attorney:] And these videotapes, you reviewed the entire day of tapes?
A. No. There's sections well beyond the end and sections way in the beginning that we did notwe did not look at.
Q. Those sections that you didn't view, is that before the store was open?
A. I'm sorry?
Q. The ones you didn't view, in the beginning, is that before the store was open?
A. No. Actually, we didn't view from a time shortly before noon to earlier in the morning, because we knew that the necklace was there at that time. We were able to account for it up until the noon hour, when [Stratton] said she had seen it in the store window on her way out.
...
Q. You did not view the tapes from 10:00 on?
A. No, I did not.
...
[Prosecutor:] Were some of the earlier portions of the tape run through by you and Mr. Halferty?
A. Yes.
Q. 10:00 to 12:00, there was a quick run-through; but there was nothing; is that right?
A. That's correct.
Q. You didn't do them in detail like you did the other parts, did you?
A. No.
Q. Did you see anything in that quick review that caused you any concern?
A. No. You could see maybe a couple people coming in and out of the store, but nothing like this. They would all come back to the counter.
Q. So when we talk about your review, there was a quicker review you did of *109 earlier in the morning, more detailed review later; is that correct?
A. Correct.
Q. I was misunderstanding you.
Did you see anything in the quick review that made you suspicious in any way?
A. No.
[¶ 30] The appellant's argument relies only on a selected portion of Dietz's testimony and ignores the detective's later attempt to clarify his testimony as to what portions of the videotape he reviewed and whether anyone else appeared to have an opportunity to steal the necklace. Further, the videotape was admitted into evidence as an exhibit, at the jury's disposal, and, as the prosecutor stated during his closing argument, the jury was free to "go through the whole film ... and confirm whether Mr. Halferty and Mr. Dietz were accurate when they told you that there was nobody else that was there."
[¶ 31] The appellant also asserts that portions of Miller's testimony were not properly based on her personal knowledge. The pertinent portions of Miller's testimony follow:
[Prosecutor:] Now, that day, after you put the [necklace] in the front case, did anybody express an interest in the item, that you're aware of, that day?
A. Not that I'm aware of.
Q. Do you have any reason to believe it had been disturbed in any way prior to lunchtime?
A. No.
...
Q. Is there a custom or habit of the employees of checking those front cases when they leave?
A. We look at everything when we're in there. Wewe're so familiar with the items that, for a case to be opened slightly or something slightly out of line from the way we set it out, it's noticeable.
Q. Okay. Something you would notice immediately?
A. Yes.
This testimony was improper, according to the appellant, because: (1) Miller's awareness of customer interest in the necklace and pendant did not "definitely" mean that another customer had not in fact expressed an interest in the jewelry; (2) Miller's "belief" that the necklace and pendant had not been disturbed prior to lunchtime was not based on "definite facts and knowledge"; and (3) Miller did not testify that she or Stratton personally checked the front display case, or knew that any other employee did so, prior to the appellant's arrival at the store or immediately after his departure.
[¶ 32] Contrary to the appellant's argument, Miller's testimony was limited, by the phrasing of the questions asked, to her personal knowledge of the circumstances. The appellant's argument as to the extent of the potential inferences that might be based on that testimony pertains to the weight to be given the testimony, not Miller's personal knowledge. Further, the appellant has not established that this testimony materially prejudiced him. He asserts that the testimony "obviously" prejudiced him because it "was crucial to the State's case that the jury believe that the bust and necklace were undisturbed prior to [the appellant] entering the store...." Yet, this argument completely ignores the appellant's own testimony that the necklace was present in the front display case while he was in the jewelry store.
Ineffective Assistance of Counsel
[¶ 33] The appellant merely summarizes his arguments on the previous issues and claims that his trial counsel was ineffective in not objecting to the above-referenced testimony by Halferty, Dietz, and Miller. Aside from the applicable standard of review, the appellant cites no pertinent legal authority in advancing this argument and again merely declares that he was "clearly prejudiced." We reject the appellant's argument for the reasons previously set forth in this opinion.
CONCLUSION
[¶ 34] Finding no error sufficient to reverse the appellant's felony larceny conviction, we affirm.
NOTES
[1] According to the store manager, store employees customarily put the jewelry in the display cases before 9:00 a.m., "before we open the store to the general public."
[2] Officer Patrick Carr, a patrol officer and evidence technician for the Casper Police Department, later discovered partial latent fingerprints on the glass display case and a partial latent fingerprint on the bust. The fingerprints recovered from the display case did not match the appellant's fingerprints, but could have come from a customer or store clerk. In Carr's opinion, someone could access the display case without leaving a fingerprint.
[3] While searching the appellant's bedroom, officers discovered an Altoids tin containing marijuana.
[4] At trial, the appellant conceded that someone had stolen the necklace.
[5] While Downs was a burglary case, we have also discussed this principle in larceny cases. See McFarlane, 2001 WY 10, ¶¶ 9-11, 17 P.3d at 33-34; Mendicoa v. State, 771 P.2d 1240, 1243-45 (Wyo.1989); and State v. Costin, 46 Wyo. 463, 28 P.2d 782, 783 (1934).
[6] The time that actually appears on the videotape is approximately an "hour off." For example, if the time appears on the videotape as 1:42:53, the actual time of day is 12:42:53. We will refer to the actual time of day in this opinion.
[7] In doing so, the appellant omits or glosses over key portions of his own testimony and that of Bartels. For example, in assessing the evidence, the appellant repeatedly relies on testimony that Margaret Ayres initially reported that the theft occurred between 10:00 a.m. and 1:20 p.m. January 7th. The appellant conveniently ignores his own testimony that the necklace and pendant were present in the front display case while he was in the store. The appellant also states that "no evidence established that Mr. Brown was ever in possession of the necklace," which statement ignores the testimony as to what Bartels observed in the appellant's pocket shortly after leaving the jewelry store.
[8] W.R.E. 401 states:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
W.R.E. 402 states:
All relevant evidence is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.
W.R.E. 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
W.R.E. 602 states:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
W.R.E. 701 states:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
W.R.E. 701 essentially incorporates the personal knowledge requirement of W.R.E. 602. Schmunk v. State, 714 P.2d 724, 734-35 (Wyo. 1986).
[9] Halferty testified that he also had some law enforcement experience in that he used to "carry a federal commission and sheriff's office and a local badge."
[10] At one point in his appellate discussion of this issue, the appellant does state in two sentences that the "shadows" portions of the videotape referenced by Halferty and Dietz "do not correctly portray the subject matter," "convey false, or at least unknown, impressions of what Mr. Brown did," and "had questionable value for admission of evidence purposes under W.R.E. 401[,] 402, and 403." These conclusory statements can hardly be deemed cogent argument.
[11] Schmunk, 714 P.2d at 735 (quoting 3 Louisell and Mueller, Federal Evidence § 376 at 618-619). We have also said that we will "not limit the type of perceptions a witness must experience, especially given this court liberally construes W.R.E. 701 in favor of admitting opinion evidence of lay witnesses." Wilks v. State, 2002 WY 100, ¶ 25, 49 P.3d 975, 986 (Wyo.2002).
[12] That the evidence included circumstantial evidence is of no consequence because circumstantial evidence
has the same qualities of persuasion accorded direct evidence. The law makes no distinction between direct and circumstantial evidence and only requires that the jury, before convicting a defendant, be satisfied of the defendant's guilt beyond a reasonable doubt from all the evidence in the case. Circumstantial evidence has both standing and stature.
Wells, 613 P.2d at 202; see also Fischer, 811 P.2d at 8.
[13] The closest the prosecutor came to referencing the disputed testimony was in stating that "Halferty established that nobody else approached the case and handled the case, moved the bust, as what occurred when Rodney Brown was there." | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2634711/ | 90 P.3d 506 (2004)
135 N.M. 487
2004-NMCA-052
Richard C. MANNING and Edwina Manning, Individually and as community property owners and d/b/a Challenge Mining Company, Plaintiffs-Appellants,
v.
MINING AND MINERALS DIVISION OF THE ENERGY, MINERALS, AND NATURAL RESOURCES DEPARTMENT OF THE STATE OF NEW MEXICO and New Mexico Environment Department, Defendants-Appellees.
No. 23,396.
Court of Appeals of New Mexico.
January 28, 2004.
Certiorari Granted May 11, 2004.
Pete V. Domenici, Jr., Lorraine Hollingsworth, Dolan & Domenici, P.C., Albuquerque, NM, for Appellants.
Jerry A. Walz, Robert A. Bitterlich, Walz and Associates, Cedar Crest, NM, for Appellees.
Certiorari Granted, No. 28,500, May 11, 2004.
OPINION
ALARID, Judge.
{1} This case turns upon the State's sovereign immunity. We hold that Plaintiffs' federal constitutional claims asserted against two State agencies are barred by New Mexico's sovereign immunity.
BACKGROUND
{2} Plaintiffs-Appellants, Richard C. and Edwina Manning d/b/a Challenge Mining Company (Plaintiffs), filed a second amended complaint asserting federal constitutional claims for money damages against Defendants-Appellees, Mining and Minerals Division of the Energy, Minerals, and Natural Resources Department of the State of New Mexico (MMD), and New Mexico Environment Department (NMED) (collectively Defendants). Plaintiffs alleged that they are the owners of property and property rights acquired for the purposes of mining, milling, and smelting operations. Plaintiffs alleged *507 that Defendants have enforced various state environmental laws so as to prevent Plaintiffs from carrying on Plaintiffs' contemplated commercial operations. Plaintiffs asserted that Defendants' actions (1) constituted a regulatory taking of Plaintiffs' property in violation of the Fifth Amendment of the United States Constitution; (2) deprived Plaintiffs of their right to due process, in violation of the Fifth and Fourteenth Amendments to the United States Constitution; and (3) substantially impaired Plaintiffs' contractual relationships in violation of the Contract Clause of Article I, Section 10 of the United States Constitution.
{3} Defendants moved for summary judgment on several grounds, including ripeness and sovereign immunity. The district court granted summary judgment in favor of Defendants based on ripeness. Plaintiffs appealed.
DISCUSSION
{4} After this appeal was briefed and assigned to a panel, this Court requested supplemental briefs addressing the effect on this appeal of the Supreme Court's decision in Cockrell v. Board of Regents of New Mexico State University, 2002-NMSC-009, 132 N.M. 156, 45 P.3d 876.[1] In Cockrell, our Supreme Court derived from the United States Supreme Court's decision in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) the principle that "[New Mexico], by virtue of its sovereign role in the Union, is constitutionally immune from private suits for damages under a federal statute." Cockrell, 2002-NMSC-009, ¶ 15, 132 N.M. 156, 45 P.3d 876. The Supreme Court held that the judicial abrogation of sovereign immunity accomplished by Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), was limited to "common law causes of action," and that "it is within the sole province of the Legislature to waive the State's constitutional sovereign immunity." Cockrell, 2002-NMSC-009, ¶¶ 12-13, 132 N.M. 156, 45 P.3d 876. We sua sponte raised sovereign immunity because we are persuaded that the State's sovereign immunity as discussed in Cockrell is not merely immunity from liability for damages, it is immunity from a suit seeking such damages, see Handmaker v. Henney, 1999-NMSC-043, ¶¶ 12-14, 128 N.M. 328, 992 P.2d 879 (contrasting State's immunity from suit on unwritten contract with State's immunity from liability under Tort Claims Act); and, that reaching the merits of a federal claim that is barred by the State's sovereign immunity deprives the State of its "entitlement not to ... face the ... burdens of litigation," id., ¶ 13 (quoting Carrillo v. Rostro, 114 N.M. 607, 615, 845 P.2d 130, 138 (1992)) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (internal quotation marks omitted).
{5} Two sub-questions are not in dispute. First, Plaintiffs do not argue that MMD and NMED are not "the State" for purposes of sovereign immunity. Second, Plaintiffs do not argue that the Legislature has waived New Mexico's immunity. Accordingly, we limit our analysis to the question of whether federal law overrides New Mexico's sovereign immunity from Plaintiffs' suit seeking money damages for alleged violations of the United States Constitution.
{6} In Alden, the Supreme Court rejected the contention that "substantive federal law by its own force necessarily overrides the sovereign immunity of the States." Alden, 527 U.S. at 732, 119 S.Ct. 2240. The Supreme Court did not limit its observation to federal statutes; indeed, it noted that it previously had sustained a state's immunity "in a private suit arising under the Constitution itself." Alden, 527 U.S. at 732, 119 S.Ct. 2240 (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)) (emphasis added). We conclude that New Mexico's sovereign immunity is not limited to federal statutory causes of action and that it applies to claims for damages asserted directly under the United States Constitution. E.g. Hans, 134 U.S. at 10, 10 S.Ct. 504 (holding State of Louisiana immune from suit in federal court on a claim for money damages asserted under the Contracts Clause); see generally Laurence H. Tribe, American Constitutional *508 Law 176 (2d ed.1988); cf. Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (observing that the sovereign immunity of the United States "applies alike to causes of action arising under acts of Congress, and to those arising from some violation of rights conferred upon the citizen by the Constitution") (internal citations omitted).
{7} Because federal substantive law does not abrogate New Mexico's sovereign immunity "by its own force," we must be persuaded (1) that Congress has the authority to override the sovereign immunity of the states and (2) that it has exercised this authority to subject non-consenting states such as New Mexico to private suits for money damages. Alden, 527 U.S. at 756, 119 S.Ct. 2240. Beginning with Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court has repeatedly held that Congress lacks authority under Article I to abrogate the sovereign immunity of a non-consenting state. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (collecting cases). In view of these holdings, Section 5 of the Fourteenth Amendment is the only provision in the Constitution of which we are aware pursuant to which Congress could have abrogated New Mexico's immunity from Plaintiffs' suit for money damages. Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721, 724-28, 123 S.Ct. 1972, 1976-77, 155 L.Ed.2d 953 (2003). Although Congress has the authority under Section 5 to override the state's sovereign immunity and to subject non-consenting states to private suits for money damages for violations of the Constitution, it has not exercised this authority. 42 U.S.C. § 1983, the most obvious example of a statute enacted by Congress pursuant to Section 5 of the Fourteenth Amendment, does not override the states' traditional sovereign immunity. Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Plaintiffs have not cited, and we are not aware of, any other Section 5 legislation that would authorize Plaintiffs to bring their constitutional damages claims against a non-consenting state.
{8} Plaintiffs point out that they have asserted a claim directly under the Contract Clause, which applies to the states by its own terms. Plaintiffs' attempt to assert a claim directly under the Contract Clause, which is found in § 10 of Article I of the Constitution, runs up against the United States Supreme Court's holdings that federal substantive law does not of its own force override the sovereign immunity of the states and that Congress lacks the authority under Article I to subject non-consenting states to private suits for money damages. Moreover, Plaintiffs' Contract Clause claim is barred by the venerable authority of Hans.
{9} Plaintiffs, citing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), argue that their takings claim is "self-executing." As Plaintiffs correctly observe, the Supreme Court has referred to the constitutional requirement of just compensation under the Takings Clause of the Fifth Amendment as "self-executing." First English, 482 U.S. at 315, 107 S.Ct. 2378 (internal quotation marks and citation omitted). Plaintiffs' argument based upon the self-executing character of just compensation presents us with two separate inquires. One inquiry is whether the Takings Clause provides a damages remedy. We will assume, without deciding, that the self-executing character of the requirement of just compensation under the Takings Clause obviates the need for a statutory damages remedy and allows Plaintiffs to plead a claim for damages directly under the Constitution without invoking § 1983 or other enabling legislation. A second inquiry is whether, assuming the existence of a direct action for damages under the Takings Clause, that remedy may be asserted in a private action against a non-consenting state. First English did not involve a suit against a state or an arm of the state, and therefore the Supreme Court was not called upon to decide whether a non-consenting state would be immune from a suit seeking just compensation under the Takings Clause. Harrison v. Hickel, 6 F.3d 1347, 1352 (9th Cir.1993); see also Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 *509 Vand. L.Rev. 57, 138 n. 344 (1999) (noting that defendant in First English was a county); Alden, 527 U.S. at 756, 119 S.Ct. 2240 (observing that a state's sovereign immunity bars suits against the state itself, but not "lesser entities," and that "immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State").
{10} The Takings Clause of the Fifth Amendment does not directly apply to the states. Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). It applies to the states through the Due Process Clause of the Fourteenth Amendment, First English, 482 U.S. at 310, 107 S.Ct. 2378, n. 4; see also 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure 523 (3d ed.1999). Even if we assume that the self-enforcing character of the remedy afforded by the Takings Clause allows Plaintiffs to plead a damages claim directly under the Fifth and Fourteenth Amendments, Plaintiffs still must overcome New Mexico's sovereign immunity. Plaintiffs face "[t]he logical implication from Quern ... that if § 1983 did not abrogate traditional [sovereign] immunity, Section 1 of the Fourteenth Amendment by itself surely does not; otherwise there would have been no sovereign immunity left intact for Congress to have failed to abrogate when passing § 1983 in 1871." Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 31 (2d Cir.1991).
{11} We recognize that the Supreme Court's reference in First English to the self-executing character of the Takings Clause suggests "two paths of development." Brauneis, supra, at 138 n. 344. First, it could be read to support the argument that the Fifth Amendment as incorporated by the Fourteenth Amendment both creates a damages remedy and abrogates the sovereign immunity of the defendant. Id. Two state appellate courts have interpreted the Takings Clause in this way. Boise Cascade Corp. v. State, 164 Or.App. 114, 991 P.2d 563 (1999); SDDS, Inc. v. State, 650 N.W.2d 1 (S.D.2002). However, neither of these courts appears to have recognized that, notwithstanding the self-enforcing character of the Takings Clause, the Supreme Court has never held that the Takings Clause overrides the sovereign immunity of the United States, against which it is directly applicable, or of the states, to which it applies through the Fourteenth Amendment. See Brauneis, supra, at 137-38. A second approach to the self-enforcing character of the Takings Clause is that it merely provides a damages remedy against those lesser entities such as counties or municipalities that do not share the state's sovereign immunity. Id. at 138 n. 344. We believe that this second approach is more consistent with the absence of Supreme Court precedent holding that the Takings Clause overrides state or federal sovereign immunity from suits for money damages and with the Supreme Court's recent pronouncements in Alden regarding the structural significance of state sovereign immunity in the federal system established by the Constitution.
{12} For the reasons given above, we conclude that federal law does not override New Mexico's sovereign immunity from suit on the federal constitutional claims asserted by Plaintiffs.
CONCLUSION
{13} We affirm the order of the district court dismissing Plaintiffs' complaint with prejudice.
{14} IT IS SO ORDERED.
WE CONCUR: LYNN PICKARD and CYNTHIA A. FRY, Judges.
NOTES
[1] Cockrell was decided after the issues in this case had been argued and decided by the trial court. Defendants' memorandum in support of their motion for summary judgment relied upon the United States Supreme Court's decision in Alden. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465115/ | 254 P.3d 752 (2011)
2011 UT 28
T-MOBILE USA, INC., Plaintiff and Appellee,
v.
UTAH STATE TAX COMMISSION, Defendant and Appellant, and
Beaver County, Box Elder County, Cache County, Davis County, Iron County, Juab County, Millard County, Morgan County, Salt Lake County, Summit County, Tooele County, Utah County, Wasatch County, Washington County, and Weber County, Affected Parties in Interest and Appellees.
Nos. 20090298, 20090308.
Supreme Court of Utah.
June 3, 2011.
*755 Mark K. Buchi, Steven P. Young, Salt Lake City, for plaintiff.
Mark L. Shurtleff, Att'y Gen., Laron Lind, Asst. Att'y Gen., Salt Lake City, for defendant.
David W. Scofield, Thomas W. Peters, Salt Lake City, for affected parties in interest and appellees.
Justice PARRISH, opinion of the Court:
INTRODUCTION
¶ 1 The Utah State Tax Commission (the "Commission") assessed T-Mobile USA, Inc.'s ("T-Mobile") taxable Utah property for the 2003 tax year. T-Mobile sought a de novo review of the Commission's assessment in the district court, sitting as a tax court, pursuant to Utah Code sections 59-1-601 and 602. Several Utah counties[1] (the "Counties") now appeal the tax court's final decision. The Counties seek review of the tax court's decision on four issues: (1) whether the tax court employed the correct standard of review and standard of proof, (2) whether the tax court erred in excluding T-Mobile's accounting goodwill from its taxable property, (3) whether the tax court erred in admitting the testimony of T-Mobile's expert witness, and (4) whether the tax court erred in its valuation of T-Mobile's taxable property.
¶ 2 We conclude that the tax court correctly reviewed the Commission's decision by a trial de novo and correctly required that the parties prove the value of T-Mobile's taxable property by a preponderance of the evidence. We also conclude that the tax court did not err when it excluded T-Mobile's accounting goodwill from taxation or when it admitted the testimony of T-Mobile's expert witness, and that it did not err in its final valuation of T-Mobile's taxable property. We therefore affirm the decision of the tax court.
BACKGROUND
¶ 3 On May 1, 2003, the Utah State Tax Commission's Property Tax Division (the "Division") assessed the value of T-Mobile's taxable Utah property at $124,577,850. T-Mobile and the Counties petitioned the Commission for a revaluation of the property pursuant to Utah Code section 59-2-1007(1)(a). The Commission held a formal hearing and reassessed T-Mobile's property at $117,850,000. The Commission's assessment was based on a historic cost approach[2] valuation.
¶ 4 The Counties appealed the Commission's decision to this court ("administrative appeal") pursuant to Utah Code section 59-1-602(1). Concurrently, T-Mobile exercised its option to appeal the Commission's decision for de novo review in the district court, acting as a tax court, pursuant to Utah Code section 59-1-602(1)(a). The administrative appeal to this court was stayed pending a final resolution of the appeal to the tax court. The tax court issued its final order on March 11, 2009. Subsequently, in Beaver County v. Utah State Tax Commission, we dismissed the Counties' administrative appeal pursuant to rule 15 of the Utah Rules of Appellate Procedure. 2010 UT 50, ¶ 15, 254 P.3d 158.
¶ 5 During the tax court proceeding, the Counties filed a motion in limine to exclude T-Mobile's expert, J. Phillip Cook, under rule 702 of the Utah Rules of Evidence. The Counties argued that Mr. Cook's testimony was inadmissible because he was not qualified to conduct unitary appraisals[3] and because he employed the wrong unit in his valuation of T-Mobile's Utah taxable property. *756 Specifically, the Counties took issue with Mr. Cook's "Utah only unit" valuation, arguing that it applied the wrong geographical unit to appraise T-Mobile's property. The Counties argued that his allegedly inappropriate choice of appraisal unit showed that Mr. Cook was not experienced in unitary appraisals. The tax court reserved ruling on the Counties' motion until after hearing all the evidence. At the close of the evidence, the tax court denied the Counties' motion in limine. The court determined that while Mr. Cook chose an improper unit for his "Utah only unit" valuation, Mr. Cook presented other valuations employing the correct unit of appraisal. Consequently, the court did not use the "Utah only unit" valuation in its final assessment but instead relied on Mr. Cook's historic cost valuation.
¶ 6 In determining the fair market value of T-Mobile's taxable property, the tax court considered the appraisals presented by the experts at trial. The tax court concluded, however, that most of the appraisals were flawed. First, the tax court found that the discounted cash flow analysis performed by the Counties' expert appraiser, Brent Eyre, used capital expenditures that exceeded depreciation except for the terminal year, which was inconsistent with rule R884-24P-62 of the Utah Administrative Code. Second, the tax court found that the Commission's pro rata allocation of T-Mobile's accounting goodwill to its valuation was not based on any standard valuation approach and was erroneous because goodwill is intangible property that is exempt from tax under Utah Code section 59-2-1101 and the Utah Constitution.[4] Third, the tax court determined that Mr. Cook's "Utah only unit" appraisal was erroneous because it did not employ the correct unit of valuation.
¶ 7 The tax court concluded that there were only two appraisals in evidence that were not erroneousMr. Cook's historic cost valuation and Mr. Eyre's reworking of the Commission's cost approach to exclude goodwill. The tax court therefore relied on these two appraisals in its valuation of T-Mobile's property. Specifically, it averaged these appraisals to value T-Mobile's taxable Utah property at $74,750,000. In so doing, the tax court gave no deference to any prior administrative assessment and required that the parties prove the correct assessment by a preponderance of the evidence.
¶ 8 The Counties and the Commission now appeal the tax court's valuation of T-Mobile's taxable Utah property. Specifically, the Counties take issue with the tax court's valuation because they argue that it was based on inadmissible evidence and erroneously excludes the value of goodwill. Additionally, the Counties and the Commission argue that the tax court's decision is in error because it did not give proper deference to the Division's and/or the Commission's prior assessments. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶ 9 When reviewing a district court's decision, "[w]e review the district court's factual findings for clear error and review its legal conclusions for correctness." S.H. v. State, 2008 UT 78, ¶ 18, 197 P.3d 636. The interpretation of a statute is a question of law, which we review for correctness. Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d 256.
ANALYSIS
¶ 10 The parties have raised a number of procedural and substantive issues, each of which we will discuss separately. First, we address the tax court's application of a de novo standard of review and a preponderance of the evidence burden of proof in reviewing the Commission's assessment of T-Mobile's Utah property. Second, we review the correctness of the tax court's final valuation by addressing whether the tax court correctly designated T-Mobile's accounting goodwill as intangible property, thereby excluding it from the final valuation. Third, we determine whether the tax court abused its discretion *757 when it admitted T-Mobile's expert witness testimony. Finally, we address whether it was clearly erroneous for the tax court to rely on its own valuation methodology in arriving at a final value for T-Mobile's taxable Utah property.
I. THE TAX COURT CORRECTLY CONDUCTED A TRIAL DE NOVO AND CORRECTLY REQUIRED PROOF OF VALUE BY A PREPONDERANCE OF THE EVIDENCE
¶ 11 The Commission and the Counties argue that the tax court should have applied a different standard of review and burden of proof in its review of the Commission's assessment of T-Mobile's taxable Utah property. The Commission argues that the tax court should give deference, or a presumption of correctness, to the Commission's assessment and that the appealing party must, by a preponderance of the evidence, prove a "substantial error" in that assessment. The Counties alternatively argue that the tax court should give deference, or a presumption of correctness, to the original assessment by the Division and that such assessment may not be overturned absent substantial error. Finally, T-Mobile argues that the tax court was correct in conducting a de novo proceeding where no deference was given to any prior assessment and in requiring proof by a preponderance of the evidence that T-Mobile's proposed property value is the correct assessment value. We agree with T-Mobile.
A. Utah Code Section 59-1-601 Requires a Trial De Novo With No Deference to Previous Commission Decisions
¶ 12 In 1998, the Utah Constitution was amended to provide the Legislature with authority to grant Article VIII courts jurisdiction to "adjudicate, review, reconsider, or redetermine any matter decided by the State Tax Commission relating to revenue and taxation." UTAH CONST. art. XIII, § 6, cl. 4. The Legislature acted on this authority and reinstated Utah Code section 59-1-601,[5] which states that "the district court shall have jurisdiction to review by trial de novo all decisions issued by the [C]ommission . . . resulting from formal adjudicative proceedings." UTAH CODE ANN. § 59-1-601(1). (2008). The Counties and the Commission argue that the district court, acting as a tax court pursuant to this section, must still afford some level of deference to either the Division's original assessment or to the Commission's assessment. We disagree.
¶ 13 "Under applicable rules of statutory construction, `we look first to the statute's plain language to determine its meaning.'" Heber Light & Power Co. v. Utah Pub. Serv. Comm'n, 2010 UT 27, ¶ 19, 231 P.3d 1203 (quoting Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099). "We also interpret [the statute's] provisions in harmony with other . . . statutes under the same and related chapters." Id. (alteration in original) (internal quotation marks omitted). The Legislature specifically directed in section 59-1-601 that a tax court shall have jurisdiction to review any formal adjudicative proceedings conducted by the Commission and shall do so by conducting a de novo proceeding. A de novo proceeding is defined in the statute as "an original, independent proceeding, and does not mean a trial de novo on the record." UTAH CODE ANN. § 59-1-601(2). We have previously defined a de novo proceeding as "anew, afresh, or a complete retrial" in which "the case is tried in the district court as if it originated there." Bernat v. Allphin, 2005 UT 1, ¶¶ 30-31, 106 P.3d 707 (internal quotation marks omitted). Thus, the plain statutory language indicates the legislative intent was for the tax court to make a new and independent assessment of property value without relying on or deferring to previous Commission assessments. This conclusion is further bolstered by the constitutional language *758 that gives article VIII courts the ability to "adjudicate, review, reconsider, or redetermine any matter decided by the State Tax Commission relating to revenue and taxation." UTAH CONST. art. XIII, § 6, cl. 4. The terms "reconsider" and "redetermine" inherently require that the tax court make an independent decision without deference to a previous Commission assessment and without restriction to the record before the tax court.
¶ 14 This standard of review is a departure from traditional review in administrative cases. In 1993 the Legislature amended section 59-1-601 to allow the tax court to review a Commission's decision by a trial de novo. 1993 Utah Laws 248. Before the enactment of section 59-1-601, the standard of review applicable to a Commission decision mirrored the standard of review applied in traditional administrative review cases. See Evans & Sutherland Computer Corp., 953 P.2d at 437. In those cases, jurisdiction to review a formal adjudicative proceeding was limited to this court or to the court of appeals. See UTAH CODE ANN. § 63G-4-403(1). Additionally, in reviewing final agency decisions, an "appellate court [could] grant relief only if . . . it determine[d] that [the] person seeking judicial review ha[d] been substantially prejudiced." Id. § 63G-4-403(4); see also Beaver Cnty. v. WilTel, Inc., 2000 UT 29, ¶ 16, 995 P.2d 602 (requiring the petitioner to show both "substantial error or impropriety in the [Commission's] assessment" and a "sound evidentiary basis upon which the Commission could adopt a lower valuation" (internal quotation marks omitted)). Under such a regime, appellate courts were required to "grant the [C]ommission deference concerning its written findings of fact, applying a substantial evidence standard on review; and . . . grant the [C]ommission no deference concerning its conclusions of law, applying a correction of error standard." UTAH CODE ANN. § 59-1-610(1)(a)-(b). In other words, under traditional administrative review, a petitioner must show substantial prejudice to overcome the deference afforded to the Commission and justify overturning its decision.
¶ 15 With the reinstatement of section 59-1-601, the Utah Code now creates two potential avenues of review for a petitioner. One avenue is an appeal to the tax court under section 59-1-601, where a petitioner is entitled to a de novo proceeding to determine property value in which no deference is given to any previous Commission decision. Id. § 59-1-601. The other avenue is an appeal to an appellate court through the traditional administrative review process, where deference is given to the Commission's findings of fact and substantial prejudice must be shown to overturn the Commission's decision. See id. §§ 59-1-610(1), 63G-4-403(1), (4). In this case, T-Mobile chose the first avenue. As a result, the tax court correctly conducted a de novo proceeding where it afforded no deference or presumption of correctness to any previous Commission assessment.
B. The Tax Court Correctly Required Proof by a Preponderance of the Evidence
¶ 16 In a de novo proceeding in the tax court pursuant to Utah Code section 59-1-601, "a preponderance of the evidence shall suffice to sustain the burden of proof." Id. § 59-1-604. The Counties and the Commission argue that T-Mobile should have been required to prove by a preponderance of the evidence that there was substantial error in the Commission's assessment and that there was a sound basis for adopting a lower valuation. We disagree.
¶ 17 The Counties and the Commission rely on Utah Railway Company v. Utah State Tax Commission for their argument that T-Mobile "must meet its twofold burden of demonstrating substantial error or impropriety in the [original] assessment, and providing a sound evidentiary basis upon which the Commission could adopt a lower valuation." 2000 UT 49, ¶ 10, 5 P.3d 652 (alteration in original) (internal quotation marks omitted). This reliance is misplaced. In Utah Railway Co., the burden was premised on the idea that a presumption of correctness attached to the original assessment as required by Utah Code section 59-1-610(1). Id. ¶ 6. But when a party chooses to bring a case to the tax court pursuant to Utah Code *759 section 59-1-601, no presumption of correctness attaches to the Commission's assessment. Indeed, the party's only burden is to show by a preponderance of the evidence that its proposed valuation is more accurate than any other value. See Harken Sw. Corp. v. Bd. of Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996) (defining preponderance of the evidence as "more likely than not"); Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986, 988 (1954) (defining preponderance of the evidence as the "greater weight of the evidence" in favor of the prevailing party). Contrary to the Counties' and the Commission's arguments, the statute does not require any showing of substantial error.
¶ 18 In this case, the tax court was correct in refusing to give any deference to prior Commission assessments. T-Mobile's burden in the tax court was simply to demonstrate that "the greater weight of the evidence" supported the value it proposed.
II. THE TAX COURT CORRECTLY EXCLUDED T-MOBILE'S ACCOUNTING GOODWILL FROM PROPERTY TAX
¶ 19 We next address whether the tax court erred when it excluded the value of T-Mobile's accounting goodwill from its taxable Utah property. The tax court held that T-Mobile's accounting goodwill was not taxable because it constituted intangible property that is exempt from property tax under the 1998 Utah Property Tax Act (the "1998 Act"), Utah Code sections § 59-2-101 to 1372,[6] and article XIII, section 2, clause 5, of the Utah Constitution. The Counties argue that the tax court erred because T-Mobile's accounting goodwill is not intangible property but rather taxable tangible property. We are not persuaded. While we agree that accounting goodwill is not exempt from property tax under the 1998 Act, the Utah Constitution prohibits taxing goodwill as property. And we note that our conclusion in this regard is consistent with the Legislature's 2006 amendment to the Utah Property Tax Act, which includes goodwill within the definition of "intangible property" that is exempt from property tax. See UTAH CODE ANN. § 59-2-102(20)(c) (Supp.2010); see also id. § 59-2-102(16)(a) (defining "goodwill" to include "acquired goodwill that is reported as goodwill on the books and records: (A) of a taxpayer; and (B) that are maintained for financial reporting purposes").
A. Goodwill Is Not Exempt from Taxation Under the 1998 Act
¶ 20 The Utah Constitution requires that all nonexempt tangible property within the state be taxed. See UTAH CONST. art. XIII, § 2, cl. 1. Consistent with this provision, the 1998 Act mandates that "[a]ll tangible taxable property located within the state" be taxed, but exempts intangible property from taxation. See UTAH CODE ANN. §§ 59-2-103(1), -1101(2)(g) (2000). Thus, the first question we must address is whether accounting goodwill is tangible or intangible property under the 1998 Act.
¶ 21 According to well-accepted canons of statutory construction, we begin our interpretation of a statute with an analysis of its plain language. R & R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass'n, 2008 UT 80, ¶ 23, 199 P.3d 917. If the plain language is unambiguous, we do not look to other interpretive tools. Id. But "if the language is ambiguous, the court may look beyond the statute to legislative history. . . to ascertain the statute's intent." Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶ 47, 164 P.3d 384. We therefore begin with the plain language of the statute.
¶ 22 The 1998 Act defines intangible property but does not define tangible property. It defines intangible property as "property that is capable of private ownership separate from tangible property; and . . . includes (i) moneys; (ii) credits; (iii) bonds; (iv) stocks; (v) representative property; (vi) franchises; (vii) licenses; (viii) trade names; (ix) copyrights; and (x) patents." UTAH CODE ANN. § 59-2-102(17) (2000).
*760 ¶ 23 To fit within the statutory definition of "intangible property," accounting goodwill must be "capable of private ownership separate from tangible property." Id. But accounting goodwill does not fit within this definition. T-Mobile's accounting goodwill was booked according to the rules set forth by the Financial Accounting Standards Board (the "FASB").[7] According to the FASB, accounting goodwill is "[t]he excess of the cost of an acquired entity over the net of the amounts of the assets acquired and liabilities assumed." BUSINESS COMBINATIONS, Statement of Fin. Accounting Standards No. 141, para. 43, at 18 (Fin. Accounting Standards Bd. 2001) [hereinafter FAS 141].[8] Accounting goodwill is required to be booked only when a company is acquired.[9]See id.
¶ 24 The definition of accounting goodwill is complex. According to the FASB, accounting goodwill is comprised of six components: (1) "[t]he excess of the fair values over the book values of the acquired entity's net assets at the date of acquisition"; (2) "[t]he fair values of other net assets that [have] not been recognized by the acquired entity at the date of acquisition";[10] (3) "[t]he fair value of the `going-concern' element of the acquired entity's existing business";[11] (4) "[t]he fair value of the expected synergies and other benefits from combining the acquiring entity's and acquired entity's net assets and businesses"; (5) "[o]vervaluation of the consideration paid by the acquiring entity stemming from errors in valuing the consideration tendered"; and (6) "[o]verpayment or underpayment by the acquiring entity." Id. paras. B102, at 57-58.
¶ 25 Despite the complexity of this definition, the FASB makes clear that accounting goodwill is not an exchangeable asset that is separate from other assets of the entity. See id. paras. B118-19, at 61. Accordingly, accounting goodwill cannot meet the legislative definition of intangible property because by its very nature it cannot be sold apart from either the tangible or intangible property of the company.
¶ 26 Other canons of statutory construction also support the conclusion that the Legislature did not intend to exempt goodwill from taxation when passing the 1998 Act.[12] The first is that of ejusdum generis, which provides that a term or phrase is "understood as restricted to include things of the same kind, class, character, or nature as those specifically *761 enumerated." Ball v. Pub. Serv. Comm'n, 2007 UT 79, ¶ 54, 175 P.3d 545 (internal quotation marks omitted). Utah Code section 59-2-102 provides a nonexclusive list of categories of intangibles that include "(i) moneys; (ii) credits; (iii) bonds; (iv) stocks; (v) representative property; (vi) franchises; (vii) licenses; (viii) trade names; (ix) copyrights; and (x) patents." UTAH CODE ANN. § 59-2-102(17)(b) (2000). All of these items are capable of being divided from the acquired entity and sold, transferred, licensed, rented, or exchanged. But goodwill is not capable of being separated and sold apart from the entity, and therefore it is not of the same character as the intangible properties enumerated in this section.
¶ 27 Second, we find it significant that the Legislature removed the term "goodwill" from the list of property exempt from property tax when it passed the 1998 Act. As part of our plain language analysis, we place significance on the removal of a term from a piece of legislation. See, e.g., Sindt v. Ret. Bd., 2007 UT 16, ¶ 13, 157 P.3d 797 (noting that the legislature's removal of the term "constable" was indicative of its intent to remove "constable" from the definition of public officer); see also 1A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 22.30, at 368 (6th ed. 2002) ("An amendment of an unambiguous statute indicates an intent to change the law."). Prior to 1998, "intangible property" was not defined. But the term "property" was defined to exclude "goodwill ... and other intangibles." UTAH CODE ANN. § 59-2-102(20) (Supp.1997). The 1998 amendment to this section changed the definition of property and added a definition for "intangible property." Specifically, it defined "property" to exclude "intangible property as defined in this section." Id. § 59-2-102(24)(b) (2000). Furthermore, it defined "intangible property" as "property that is capable of private ownership separate from tangible property" and listed examples of categories of intangible property falling within the general definition. See id. § 59-2-102(17). Goodwill was excluded from this list of intangible property. Because the Legislature was aware of goodwill at the time that this section was amended, its decision to not specifically enumerate goodwill as intangible property indicates its intent to exclude goodwill from the definition of intangible property.
¶ 28 Our position that the Legislature did not intend to include goodwill is also supported by the Legislature's 2006 amendment to the definition of "intangible property." See 2006 Utah Laws 249. In 2006, the Legislature amended the definition of "intangible property" to include goodwill. Id. (codified as amended at UTAH CODE ANN. § 59-2-102(20)(c) (Supp.2010)). The 2006 amendment provides that
Intangible property means:
(a) property that is capable of private ownership separate from tangible property, including:
(i) money;
(ii) credits;
(iii) bonds;
(iv) stocks;
(v) representative property;
(vi) franchises;
(vii) licenses;
(viii) trade names;
(ix) copyrights; and
(x) patents;
(b) a low-income housing tax credit;
(c) goodwill
....
Id. § 59-2-102(20). When the Legislature amended the definition of intangible property, it did not include goodwill as part of the list of intangible property that is considered "capable of private ownership separate from tangible property." Id. Rather, the Legislature included goodwill as a separate category of intangible property. In so doing, the Legislature suggested that goodwill is not "capable of private ownership separate from tangible property." We therefore conclude that goodwill is not intangible property as that term is defined in the 1998 Act. Thus, goodwill is not exempt from property tax under the 1998 Act.[13]
*762 B. Goodwill Is Not Taxable Under Article XIII, Section 2, Clause 5 of the Utah Constitution
¶ 29 Having concluded that T-Mobile's accounting goodwill is taxable as property under the 1998 Act, we must determine whether the 1998 Act is consistent with the Utah Constitution.[14] Article XIII, section 2, clause 5 of the Utah Constitution provides that "The Legislature may by statute determine the manner and extent of taxing or exempting intangible property.... If any intangible property is taxed under the property tax, the income from that property may not also be taxed." UTAH CONST. art. XIII, § 2, cl. 5. The Legislature has chosen to exempt intangible property from taxation and instead to tax the income derived from such property. UTAH CODE ANN. § 59-7-101(31)(b) (2000) ("`Utah taxable income' includes income from tangible or intangible property located or having situs in this state ...."); see also Beaver Cnty. v. WilTel, Inc., 2000 UT 29, ¶ 33, 995 P.2d 602. Because the Legislature chose to tax the income from intangible property, it could not tax the intangible property itself. See id., 2000 UT 29, ¶ 33, 995 P.2d 602. We must therefore determine whether goodwill is intangible property under the Utah Constitution and, if so, whether the Legislature elected to tax the income from such goodwill.
¶ 30 "In interpreting the state constitution, we look primarily to the language of the constitution itself...." Grand Cnty. v. Emery Cnty., 2002 UT 57, ¶ 29, 52 P.3d 1148 (internal quotation marks omitted). "[O]ur Constitution ... should be interpreted and applied according to the plain import of [its] language as it would be understood by persons of ordinary intelligence and experience." Salt Lake City v. Ohms, 881 P.2d 844, 850 n. 14 (Utah 1994). "We need not inquire beyond the plain meaning of the [constitutional provision] unless we find it ambiguous." Grand Cnty., 2002 UT 57, ¶ 29, 52 P.3d 1148 (alteration in original) (internal quotation marks omitted).
¶ 31 The meaning of "intangible property" is clear and unambiguous. As used in the law of taxation, the "generally accepted definition[] of intangible property," is property that "`has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, copyrights, and franchises.'" Salt Lake City S. R.R. Co. v. Utah State Tax Comm'n, 1999 UT 90, ¶ 9, 987 P.2d 594 (quoting BLACK'S LAW DICTIONARY 809 (6th ed. 1990)).
¶ 32 Goodwill is consistent with this definition. As stated above, goodwill is generally defined as "[a] business's reputation, patronage, and other intangible assets that are considered when appraising the business." BLACK'S LAW DICTIONARY 715 (8th ed. 2004). Goodwill does not have any "intrinsic and marketable value" in and of itself. Indeed, goodwill has no physical aspect but represents the value associated with, for example, a business's reputation and its relationship with its customers. We therefore conclude that goodwill constitutes intangible property.
¶ 33 We next examine whether the Legislature has elected to tax the income from such goodwill. Utah's corporate income tax "impose[s] upon each corporation ... a tax upon its Utah taxable income." UTAH CODE ANN. § 59-7-201 (2000). The corporate income tax defines "taxable income" to "include[] income from tangible or intangible property located or having situs in this state." Id. § 59-7-101(31)(b). Because goodwill is property and because Utah's corporate income tax imposes a tax on the income derived from all property, including both tangible and intangible property, the income derived from goodwill is already being *763 taxed.[15]See WilTel, 2000 UT 29, ¶ 34, 995 P.2d 602 ("[I]ntangible property is taxed on income and, therefore, ... has not escaped taxation."). As a result, it would be prohibited to levy a property tax on T-Mobile's goodwill.
¶ 34 The Counties argue against this conclusion, asserting that the plain language of article XIII, section 2, clause 5 supports their position that goodwill is taxable as property. Additionally, they argue that our decision in WilTel suggests that goodwill does not fall within the constitutional definition of intangible property. We are persuaded by neither argument.
¶ 35 The Counties argue that "[t]he literal language of the sentence structure" of article XIII, section 2, clause 5 of the Utah Constitution "contemplates that there is a property tax and so there may not also be an income tax." They read the clause to mean that T-Mobile may challenge only the constitutionality of the income tax as applied to intangible property and not the property tax. But such a reading is inconsistent with the purpose of article XIII, section 2, clause 5, which is to prevent double taxation of intangible property. See WilTel, 2000 UT 29, ¶¶ 33-34, 995 P.2d 602.[16] Article XIII, section 2 provides that the Legislature is free to choose whether to tax intangibles as property or the income from intangible property. The Legislature has made its choice and decided to tax the income from intangible property. It is therefore prohibited from taxing the intangible property itself.
¶ 36 The Counties maintain that goodwill cannot constitute intangible property under the Utah Constitution under our WilTel decision. 2000 UT 29, 995 P.2d 602. In WilTel, we determined that the value of a company's tangible property operating together as a unit constituted "enhanced value" that was properly taxable under the Utah Constitution because enhancement value is directly attributable to tangible property. Id. ¶¶ 35-39. We also held that a unitary method of assessment was an appropriate method to capture enhancement value. Id. ¶¶ 22, 36-40. We therefore upheld the Commission's decision to value WilTel's property using the unitary method of appraisal because "[a unitary] approach of assessment ... capture[s] the fair market value of the Company's property operating together as a single unit." Id. ¶ 39 (emphasis added) (internal quotation marks omitted).
¶ 37 The appellees in WilTel agreed with our definition of enhancement value, "but interpret[ed] it to include `non-property' intangibles" such as "`assembled workforce,' `customer relations,' and `goodwill.'" Id. ¶ 38. "We eschew[ed] this approach in light of the specific exclusion of `goodwill and other intangibles' from taxable property under Utah Code Ann. § 59-2-102(19)...." Id. The Counties argue that because the Legislature removed the exemption for goodwill and other intangibles from the 1998 Act, goodwill is now taxable under WilTel as enhancement value. Specifically, they argue that accounting goodwill falls within the definition of tangible enhancement value because it captures the "synergy value" of the company's net assets working together as a unit. We are unpersuaded.
¶ 38 Accounting goodwill includes components other than a company's "synergy value." For instance, accounting goodwill includes a company's customer base, customer service capabilities, presence in geographic markets or locations, nonunion status, strong *764 labor relations, ongoing training programs, and ongoing recruitment programs. FAS 141, supra, para. B165, at 71. This definition does not, as the counties suggest, indicate that 100 percent of T-Mobile's accounting goodwill represents the value of the company's assets working together as a whole. And even if 100 percent of T-Mobile's accounting goodwill constituted "synergy value," it does not follow that all of this value is directly attributable to T-Mobile's tangible property.
¶ 39 Intangible assets such as "synergy value"[17] and "customer base" are associated with the business being conducted on the property; they are not directly attributable to tangible property. See Shubat v. Sutter Cnty. Assessment Appeals Bd. No. 1, 13 Cal. App. 4th 794, 17 Cal. Rptr. 2d 1, 7 (1993) ("[I]ntangibles such as going concern value or franchise rights relate to the business being conducted on the real property. They relate to the real property only in their connection with the business using it."). And while assets associated with the business being conducted on the property, such as customer base and "going concern value," can enhance tangible property, it does not follow that these assets constitute enhancement value. See id. at 6. Rather, to the extent that accounting goodwill includes enhancement value attributable to T-Mobile's tangible property, that value is reflected in the value of the physical property itself and can be captured by a unitary method of appraisal. See WilTel, 2000 UT 29, ¶¶ 7, 36-41, 995 P.2d 602 (indicating that intangible value that is captured in a unitary appraisal is directly attributable to tangible property and is not required to be deducted from the appraisal); see also Shubat, 17 Cal.Rptr.2d at 7 ("Intangible values ... that cannot be separately taxed as property may be reflected in the valuation of taxable property." (alteration in original) (internal quotation marks omitted)).
¶ 40 In this case, the tax court noted that the value in T-Mobile's goodwill account may have contained enhancement value, but it refused to tax T-Mobile's goodwill account directly. Rather, the tax court concluded, to the extent T-Mobile's goodwill account included enhancement value, that value would be captured through the valuation of the tangible property itself. The tax court correctly so concluded.
III. THE TAX COURT DID NOT ERR WHEN IT ADMITTED T-MOBILE'S EXPERT WITNESS
¶ 41 We next examine the Counties' contention that the tax court did not fulfill its "gatekeeper" function under rule 702 of the Utah Rules of Evidence when it admitted the testimony of T-Mobile's expert witness, Mr. Cook. "Trial courts enjoy broad discretion in determining whether expert scientific evidence is admissible...." Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 16, 31 P.3d 557. As a result, we review admissibility decisions for abuse of discretion and "`can properly find abuse only if ... no reasonable [person] would take the view adopted by the trial court.'" Id. (alterations in original) (quoting State v. Brown, 948 P.2d 337, 340 (Utah 1997)).
¶ 42 Rule 702 of the Utah Rules of Evidence sets forth a two-part test for determining whether expert testimony is admissible. First, "[r]ule 702(a) requires the court to consider whether expert testimony is necessary to assist the trier of fact and whether the proposed expert has the necessary `knowledge, skill, experience, training, or education' to provide such assistance to the trier of fact." Eskelson ex rel. v. Davis Hosp. & Med. Ctr., 2010 UT 15, ¶ 9, 2010 WL 841276, (quoting UTAH R. EVID. 702(a)). Second, rule 702(b) requires that the specialized knowledge that forms the expert's testimony be reliable, based on sufficient facts, and be reliably applied to the facts. UTAH R. EVID. 702(b).
A. The Tax Court Did Not Abuse Its Discretion When It Determined That Mr. Cook Was Qualified as an Expert Under Rule 702(a)
¶ 43 The Counties argue that Mr. Cook's appraisal of T-Mobile's Utah property *765 should have been excluded under rule 702(a) because he was unqualified to conduct unitary appraisals. We disagree. Under rule 702(a), an expert must pass an initial qualification threshold. Only a witness "qualified as an expert by knowledge, skill, experience, training, or education" may testify. UTAH R. EVID. 702(a). The tax court did not abuse its discretion in finding that Mr. Cook fulfilled these requirements.
¶ 44 Mr. Cook has twenty-eight years of experience as a certified general appraiser in the state of Utah. Mr. Cook has taught courses on appraisal and has served on many professional committees, both as chairman and as a board member. Additionally, Mr. Cook has testified as an appraisal expert many times in court proceedings. Although Mr. Cook has performed only two other unitary appraisals, he has assisted on other unitary appraisals. These qualifications support the tax court's finding that Mr. Cook was qualified in unitary appraisals. We accordingly conclude that the tax court did not abuse its discretion in concluding Mr. Cook's testimony satisfied the requirements of rule 702(a).
B. The Tax Court Did Not Abuse Its Discretion When It Determined That Mr. Cook's Testimony Was Reliable Under Rule 702(b)
¶ 45 Rule 702(b) requires that the methods forming the basis for expert testimony be reliable, based on sufficient facts, and have been reliably applied to the facts of the case. UTAH R. EVID. 702(b). Rule 702(c) provides that the threshold showing of 702(b) has been met if the methods upon which an expert's specialized knowledge is based are "generally accepted by the relevant expert community." Id. 702(c).
¶ 46 The tax court did not abuse its discretion when it admitted Mr. Cook's "historic cost less depreciation" valuation because it is a "generally accepted" method of valuation in "the relevant expert community." Id. In fact, Utah Administrative Code rule 884-24P-62(4)(b) states that the cost approach is a preferred method to determine fair market value. And part (5)(a)(v) of this same rule states that historic cost less depreciation is one of the preferred cost indicators of value for unitary appraisal. As historic cost is one of the preferred methods for appraisal, Mr. Cook's historic cost valuation is generally accepted in the expert community and thus meets the requirements of 702(b).
¶ 47 The Counties' argument that Mr. Cook's testimony should be excluded is based largely on the undisputed fact that Mr. Cook used a "Utah only unit" method of valuation in reaching some of his valuations. Even assuming the tax court erred when it admitted Mr. Cook's valuations that employed the "Utah only unit" method, it does not follow that the court also erred in admitting his historic cost valuation, which did not employ the "Utah only unit" method. Additionally, we find it significant that the case was tried to the tax court and not to a jury.
[W]hen [a] trial is to a court, the rulings on evidence are not of such critical moment as when a trial is to a jury, because it is to be assumed that [the court] has and will use [its] superior knowledge as to the competency and the effect which should be given evidence.
Super Tire Mkt., Inc. v. Rollins, 18 Utah 2d 122, 417 P.2d 132, 136 (1966). We are confident that the tax court was able to correctly sort out any erroneous aspects of Mr. Cook's testimony. The tax court noted that Mr. Cook's "Utah only unit" valuation was erroneous, disregarded it, and instead relied on his historic cost valuation that did not use the "Utah only unit." Because a historic cost valuation is generally accepted in the appraisal community, we conclude that the tax court did not err in admitting Mr. Cook's appraisal.
¶ 48 The Counties also argue that the "record is devoid of any indication that the tax court even performed the rule 702 analysis." This is incorrect. In its Findings of Fact and Conclusions of Law and Final Decision, the tax court analyzed, as required by 702(a), Mr. Cook's qualifications as an appraiser. Additionally, as required by 702(b), the district court made findings as to the reliability of Mr. Cook's testimony. Specifically, it stated that much of the evidence that Mr. Cook *766 presented was unreliable because he did not select the proper unit. It therefore disregarded the valuations that employed the wrong unit. Additionally, in admitting Mr. Cook's cost valuation, the tax court recognized that it did not capture enhancement value. But it also found that the Counties' cost approach, excluding goodwill,[18] also failed to capture enhancement value. The tax court noted that because other unitary procedures were unreliable, the only reliable evidence of value was the Counties' cost valuation and T-Mobile's cost valuation. The Counties have failed to persuade us that this determination was an abuse of discretion.
IV. THE TAX COURT'S VALUATION OF T-MOBILE'S TAXABLE PROPERTY WAS NOT CLEARLY ERRONEOUS
¶ 49 Having determined that the tax court did not err in admitting T-Mobile's expert testimony, we now analyze whether the tax court erred in its valuation of T-Mobile's taxable property. The choice of a valuation methodology and the resulting fair market value are questions of fact to be overturned only when clearly erroneous. Salt Lake City S. R.R. Co. v. Utah State Tax Comm'n, 1999 UT 90, ¶ 13, 987 P.2d 594; Schmidt v. Utah State Tax Comm'n, 1999 UT 48, ¶ 6, 980 P.2d 690.
¶ 50 The Counties argue that the tax court's valuation is clearly erroneous for two reasons. First, they argue that the tax court erred when it did not use a unitary method of appraisal. Second, they argue that the tax court erred when it did not give proper deference to the valuation of the Division. We address the Counties' arguments in turn.
¶ 51 First, the Counties argue that the tax court's valuation is clearly erroneous because it was not calculated using a unitary method of appraisal. We disagree. As previously discussed, the historic cost approach is one of the preferred methods of unitary appraisal. UTAH ADMIN. CODE r. 884-24P-62(5)(a)(v) (2010). Moreover, while we have previously stated that the unitary appraisal method is the "most rational way to determine the value of an enterprise whose function relies upon cross-boundary connections," WilTel, 2000 UT 29, ¶ 21, 995 P.2d 602, this does not render the use of unitary appraisal for such properties mandatory. And the Utah Code does not require the use of the unitary method. Rather, the code simply provides that property shall be assessed by the Commission at 100 percent of fair market value. Requiring the tax court to use a specific valuation method ignores the reality that certain methodologies are not always accurate in every circumstance.
¶ 52 In this case, the tax court found that some of the unitary appraisals presented to it were erroneous. Specifically, it found that the Counties' valuations erroneously relied on "capital expenditures that greatly exceed depreciation" and included "all of T-Mobile's accounting goodwill as taxable" enhancement value. Moreover, it found that T-Mobile's unitary appraisal used the wrong unit. The tax court was therefore left without a reliable unitary appraisal other than the nationwide unit cost approach presented by both of the parties. Because we have endorsed the use of the cost approach to valuation, see Salt Lake City S. R.R. Co., 1999 UT 90, ¶ 14, 987 P.2d 594, we conclude that the tax court did not err in relying on the parties' cost valuations.
¶ 53 The Counties also contend that the tax court erred in its valuation because it failed to give deference to the Division's original assessment. But as discussed in Part I, the tax court has broad authority in reviewing decisions of the Commission. Utah Code section 59-1-604 provides that a tax court can "affirm, reverse, modify, or remand any order of the [C]ommission, and shall grant other relief, invoke such other remedies, and issue such orders, in accordance with its decision, as appropriate." UTAH CODE ANN. § 59-1-604 (2008). Section 601 also provides that the tax court's review is a "trial de novo," which is defined as "an original, independent proceeding." Id. § 59-1-601(1)-(2). *767 These provisions give the tax court broad authority to devise its own remedy in a given case.
¶ 54 In this case, the tax court used its statutory authority to arrive at a fair market value based on averaging the Counties' cost appraisal and T-Mobile's cost appraisal. It was clearly within the scope of the tax court's authority to devise a valuation that differed from either the Division's original assessment or the Commission's valuation. Indeed, we have previously upheld valuations where the Commission averaged two or more valuations presented to it. See, e.g., Utah Ass'n of Cntys. v. Tax Comm'n ex rel. Am. Tel. & Tel. Co., 895 P.2d 819, 823 (Utah 1995) (upholding the Commission's decision to "adopt a figure that fell somewhere between" the valuations presented by each of the parties); Questar Pipeline Co. v. Utah State Tax Comm'n, 850 P.2d 1175, 1179 (Utah 1993) (upholding Commission's decision that assigned relative weights to the various valuations presented to arrive at a valuation of Utah taxable property). Because the tax court has broad authority to devise a valuation that is different from the valuations of both the Commission and the Division, it did not err in arriving at its own valuation of T-Mobile's taxable property.
CONCLUSION
¶ 55 We conclude that the tax court did not err when it reviewed the Commission's decision by a trial de novo or when it required the parties to prove the correct valuation of T-Mobile's taxable property by a preponderance of the evidence. In addition, we conclude the tax court correctly found that accounting goodwill is exempt from taxation under the Utah Constitution. The tax court did not abuse its discretion when it denied the Counties' motion in limine to exclude T-Mobile's expert witness, and we find no error in the tax court's choice of valuation methodology. We therefore affirm the decision of the tax court.
¶ 56 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice NEHRING, and Judge PULLAN concur in Justice PARRISH's opinion.
¶ 57 District Judge DEREK PULLAN sat.
¶ 58 Justice THOMAS R. LEE became a member of the Court on July 19, 2010, after oral argument in this matter, and accordingly did not participate.
NOTES
[1] These counties include Beaver, Box Elder, Cache, Davis, Iron, Juab, Millard, Morgan, Salt Lake, Summit, Tooele, Utah, Wasatch, Washington, and Weber.
[2] "The cost approach determines property value based on original cost less depreciation." Salt Lake City S. R.R. Co. v. Utah State Tax Comm'n, 1999 UT 90, ¶ 14, 987 P.2d 594.
[3] A unitary appraisal involves the appraisal of property that operates as a unit across county or state lines. In determining the value of property for tax purposes, the value of the property is first calculated as a unit and then apportioned by county or state. See Beaver Cnty. v. WilTel, Inc., 2000 UT 29, ¶¶ 17, 35, 995 P.2d 602.
[4] The Commission based its valuation on information reported by T-Mobile on its Form 10-K. From the 10-K information, the Commission added the net book value of the total plant in service, construction work in progress at cost, and a pro rata portion of goodwill to determine the cost of the system-wide property.
[5] In Evans & Sutherland Computer Corp. v. Utah State Tax Comm'n, we held that section 59-1-601 was unconstitutional because it went "well beyond the legislature's power to prescribe limitations on the Commission's ability to `adjust and equalize the valuation and assessment of property among the several counties.'" 953 P.2d 435, 442-43 (Utah 1997) (quoting UTAH CONST. art. XIII, § 11 (repealed 2002)). After the constitutional amendment was passed authorizing the Legislature to grant jurisdiction to district courts to review Commission decisions, the section was reinstated. 1998 Utah Laws 326.
[6] In 2006, the Utah Property Tax Act was amended to include goodwill in its definition of intangible property. 2006 Utah Laws 249 (codified as amended at UTAH CODE ANN. § 59-2-102(20)(c) (Supp.2010)). We therefore cite to the version in effect at the time that the events giving rise to this appeal occurred.
[7] Because both the Counties and T-Mobile refer to the FASB definition of goodwill as accounting goodwill, we similarly refer to the FASB definition of goodwill as accounting goodwill.
[8] Accounting goodwill = purchase price-(assets acquired + liabilities assumed). FAS 141, supra, para. 43, at 18. An intangible asset can be recognized apart from goodwill if (1) "control over the future economic benefits of the asset results from contractual or other legal rights" or (2) it "is capable of being separated or divided and sold, transferred, licensed, rented, or exchanged." Id. para. B152, at 68.
[9] On May 31, 2001, Deutsche Telekom AG acquired the common stock of VoiceStream and transferred the stock to its subsidiary T-Mobile. The accounting goodwill at issue in this case was booked as a result of this acquisition.
[10] This value may include a company's customer base, customer service capabilities, presence in geographic markets or locations, nonunion status, strong labor relations, ongoing training programs, and ongoing recruitment programs. Id. para. B165, at 71.
[11] "The going-concern element represents the ability of the established business to earn a higher rate of return on an assembled collection of net assets than would be expected if those net assets had to be acquired separately. That value stems from the synergies of the net assets of the business. . . ." Id. para. B102, at 57-58.
[12] We pause to note that the FASB definition of accounting goodwill is similar to the generally understood definition of "goodwill." Black's Law Dictionary defines "goodwill" as "a business's reputation, patronage, and other intangible assets that are considered when appraising the business, esp[ecially] for purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets." BLACK'S LAW DICTIONARY 715 (8th ed. 2004). This definition recognizes that goodwill does not have any value in itself but derives its value from other assets. Similarly, accounting goodwill has no value in itself but derives its value from other assets. As per the FASB, accounting goodwill reflects a business's customer base, customer service capabilities, and other intangible assets that are included in the purchase price of a company; it also reflects the synergies created by the net assets working together. Because the definition of accounting goodwill and the general definition of goodwill are similar, we refer to these terms interchangeably throughout this opinion.
[13] Although "we will, whenever possible, interpret a statute to avoid constitutional infirmities," "we will not interpret the language so that it results in an application that is unreasonably confused, inoperable, [or] in blatant contradiction of the express purpose of the statute." I.M.L. v. State, 2002 UT 110, ¶ 25, 61 P.3d 1038 (alteration in original) (internal quotation marks omitted). In light of the plain language of section 59-2-102(17), we conclude it would be unreasonable to determine that the Legislature intended to exempt goodwill from taxation.
[14] As previously indicated, the Legislature has since amended the 1998 Act to exclude goodwill from property tax.
[15] FASB has defined accounting goodwill to include intangibles such as a company's customer base, customer service capabilities, and presence in geographic markets or locations. To the extent that a company has a strong customer base or customer service capabilities, it will earn more revenue and that revenue is taxable as income.
[16] Although article XIII, section 2 was amended after our decision in WilTel, the amendment did not change this section's prohibition against double taxing intangible property. Compare UTAH CONST. art. XIII, § 2, cl. 10 (amended 2003) ("Intangible property may be exempted from taxation as property or it may be taxed as property in such manner and to such extent as the Legislature may provide, but if taxed as property the income therefrom shall not also be taxed") with id. art. XIII, § 2, cl. 5 ("The Legislature may by statute determine the manner and extent of taxing or exempting intangible property.... If any intangible property is taxed under the property tax, the income from that property may not also be taxed.")
[17] The FASB notes that a component of goodwill comprises the "going-concern" element of the acquired entity's business. It notes that this value stems from the synergies of the acquired entity's assets working together as a whole. FAS 141, supra, para. B102, at 57-58.
[18] The Counties submitted as evidence a "reworking of the Tax Commission's cost approach to exclude goodwill." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465141/ | 882 S.W.2d 792 (1994)
Rodney Brent WELCH and Kelly Kay Welch, Plaintiffs/Appellants,
v.
Robert THUAN, M.D. and B. Thompson, M.D., Defendants/Appellees.
Court of Appeals of Tennessee, Middle Section.
March 23, 1994.
Permission to Appeal Denied August 1, 1994.
Lionel R. Barrett, Jr., Nashville, for plaintiffs/appellants.
Noel F. Stahl, Joseph R. Wheeler, Cornelius & Collins, Nashville, for defendants/appellees.
Permission to Appeal Denied by Supreme Court August 1, 1994.
OPINION
CANTRELL, Judge.
After the defendants filed a motion for summary judgment in this medical malpractice case, the plaintiffs attempted to amend their complaint. The trial court denied the plaintiffs' motion to amend, and granted summary judgment to the defendants. The plaintiffs are appealing the denial of their motion to amend, and by implication, the summary judgment as well. Because we feel the trial court was acting within its sound discretion we affirm its decision.
I.
Plaintiff Rodney Brent Welch developed severe pain in the right side of his groin at about 6:30 p.m., on November 10, 1991. At 2:00 a.m. on November 11, he went to the emergency room of the defendant Goodlark Medical Center. There he was examined by Dr. Robert Thuan, the defendant physician, who made a tentative diagnosis of testicular torsion and recommended immediate exploratory surgery. The plaintiff signed the informed consent form, and surgery began at about 3:00 a.m. The surgery was performed without complications, but no torsion was found.
After surgery, Dr. Thuan ordered an infusion urography (IVP), which revealed a slight area of calcification within the right ureter, indicating the presence of a kidney stone. At about 11:30 p.m. on November 12, Mr. Welch passed a small stone. He was discharged by Dr. Thuan later that day. The following day, another sudden onset of pain in the same area led the plaintiff to seek medical assistance at Donelson Hospital. A physician there performed stone manipulation without extraction and the plaintiff became pain free.
Mr. Welch filed his initial complaint on November 12, 1992, more than a year after the actions complained of. He contended that Dr. Thuan had negligently misdiagnosed his condition, resulting in his being subjected to unnecessary emergency surgery.
In addition to defendants Dr. Thuan and Goodlark Medical Center, another named defendant was Dr. Bill Thompson, a radiologist. The complaint alleged that Dr. Thuan had ordered an IVP from Dr. Thompson before performing surgery on Mr. Welch, but that Dr. Thompson had negligently failed to report the results of the IVP in a timely fashion. Because Dr. Thuan did not obtain the information that would have enabled him to make a correct diagnosis of Mr. Welch's condition, he went ahead with the testicular surgery, causing Mr. Welch unnecessary pain and expense.
II.
As discovery proceeded in this case, some important inaccuracies in the original complaint *793 became apparent. In particular, while the time that the IVP was performed was correctly stated to be 7:38 a.m. on November 11, the complaint alleged that the diagnosis and surgery had occurred at 9:00 a.m. rather than 3:00 a.m. The significance of this fact is that the earlier time of the surgery negates the possibility that the defendant radiologist was negligent in not reporting the results of the diagnostic test before surgery was performed.
The attorneys for the defendants communicated this finding to the plaintiffs' attorney in a letter dated January 4, 1993. On February 2, 1993, the affidavit of the defendant radiologist was filed, confirming that the infusion urography was requested and performed after the exploratory surgery, not before.
On February 12, 1993, defendants Thuan and Thompson filed a motion for summary judgment in the trial court. In response, the plaintiff moved the trial court on February 17, 1993 for permission to amend the complaint, in accordance with Tenn.R.Civ.P. 15.01. The requested amendment involved two paragraphs. The only change requested was that the time of the events indicated be corrected from 9:00 a.m. to 3:00 a.m.
On March 26, 1993, the plaintiffs filed a supplemental motion to amend their complaint. The requested amendments to three paragraphs altered the factual basis of the allegations of negligence against Dr. Thuan to allege that he failed to order an infusion urography of the plaintiff in a timely way, rather than that he failed to wait for the results of a previously ordered test before commencing surgery. In neither of the motions did the plaintiff request that Dr. Thompson be dismissed as a defendant, though knowledge of the correct sequence of events would seem to negate the plaintiffs' theory of the radiologist's liability.
The action was heard on May 27, 1993, upon the plaintiffs' motions to amend, and the defendants' motion for summary judgment. The Court's order denying the plaintiffs' motions and granting defendants' request for summary judgment included the following statement:
"... the plaintiffs and their counsel were put on notice of factual errors in the plaintiffs' complaint and had ample opportunity to correct these errors prior to February 12, 1993, when defendants filed their motion for summary judgment. Nevertheless, plaintiffs failed to take any steps to amend or otherwise correct the errors in their complaint prior to defendants' motion for summary judgment being filed. Accordingly, the Court finds that plaintiffs' motions to amend should not be allowed and defendants' motion for summary judgment should be considered in view of the state of the pleadings at the time the defendants' motion for summary judgment was filed. Based upon the Court's review of these pleadings as well as the entire record, the Court finds there to be no genuine issue of material fact to be decided and, therefore, defendants' motion for summary judgment is granted."
III.
Rule 15.01 Tenn.R.Civ.P. provides that "[a] party may amend his pleadings once as a matter of course at any time before a responsive pleading is served ... otherwise a party may amend his pleadings only by written consent of the adverse party or by leave of court...." The rule provides that permission to amend may be liberally granted, but the decision is within the sound discretion of the trial court, and will not be reversed unless abuse of discretion has been shown. Wilson v. Ricciardi, 778 S.W.2d 450, 453 (Tenn. App. 1989).
The Tennessee Supreme Court has stated some relevant factors the trial court should consider in deciding whether to grant a motion to amend. These include "undue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. App. 1979).
Examining this case in the light of those factors, we find ample justification for the actions of the trial court. Undue delay was specifically mentioned in the order, and under the circumstances would be a sufficient *794 reason by itself to deny the motion to amend. However, this court is also mindful of the undue prejudice to Dr. Thompson that would certainly result if he were forced to continue to defend an action that has no merit as to him, and the possible prejudice to Dr. Thuan from being compelled to defend his conduct under a different theory than the earlier pleadings led him to prepare for.
Further, the complaint reveals that this case was not filed until after the expiration of the one-year statute of limitations for malpractice actions found in Tenn. Code Ann. § 29-26-116(a)(1), and this defense was raised in the answers of Drs. Thuan and Thompson. The futility of an amendment is clear when granting it would prolong the litigation, but almost certainly not lead to a different ultimate result.
IV.
We therefore find that the trial court did not abuse its discretion in denying the motion to amend, and in granting summary judgment to the defendants on the basis of the pleadings as they stood at the time the motion for summary judgment was filed. The decision of the trial court is affirmed. This cause is remanded to the trial court for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant.
TODD, P.J., and LEWIS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2465143/ | 882 S.W.2d 65 (1994)
Tyrone HARRELL, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-92-01219-CR.
Court of Appeals of Texas, Houston (14th Dist.).
July 21, 1994.
*66 Kenneth W. Smith, Houston, for appellant.
Linda A. West, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and MURPHY and ELLIS, JJ.
OPINION
J. CURTISS BROWN, Chief Justice.
Appellant, Tyrone Harrell, was charged with unauthorized use of a motor vehicle. A jury found appellant guilty and the court assessed punishment at forty-five years imprisonment. Appellant raises four points of error. We affirm the judgment of the trial court.
On the evening of April 28, 1992, Andrew DiRaddo and Robin Cavanaugh saw appellant and Eddie Ray Frazier break into DiRaddo's jeep in the parking lot of DiRaddo's apartment complex. DiRaddo immediately went back to his apartment to notify the police. However, by the time Houston Police Officer Santanna arrived, the jeep was gone. Santanna broadcasted a description of the jeep and the suspects on his police radio. Officer Brain Raymond was a few blocks away when he heard the broadcast and saw a jeep drive by. The suspects and the license plate matched the description given by Santanna. Raymond called for assistance and was joined by Sergeant Rohling. Sergeant Rohling maneuvered his car to cut-off the jeep, and appellant, who was driving the jeep, attempted to escape by jumping the curb. The police chased the jeep until it crashed into some shrubbery on the roadside. Appellant and Frazier got out of the jeep and ran. Sergeant Rohling pursued appellant on foot until Rohling fell down and lost sight of appellant. Rohling apprehended appellant minutes later when he saw appellant walking down the street.
In his first point of error, appellant argues that the trial court erred by refusing to sustain his objection to the prosecutor's use of peremptory challenges to exclude three black persons from the jury panel. In order to establish a prima facie case of purposeful *67 discrimination in the selection of a jury, a defendant must show: 1) that he is a member of a cognizable racial group; and 2) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1722-23, 90 L. Ed. 2d 69 (1986). The Supreme Court has extended this holding to allow a defendant to challenge the peremptory strikes made against members of a race different from the race of the defendant. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 1369-70, 113 L. Ed. 2d 411 (1991). Once the defendant makes a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with neutral explanations for challenging the suspect veniremembers. Id. 476 U.S. at 97, 106 S. Ct. at 1723. The prosecutor must give clear and reasonably specific explanations of legitimate reasons for her use of peremptory challenges. Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App.1989). If the State has sustained its burden of producing race-neutral explanations, the burden shifts back to the appellant who must then rebut these explanations or show that they are merely a pretext. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991), cert. denied, 501 U.S. 1239, 111 S. Ct. 2875, 115 L. Ed. 2d 1038 (1991). Appellate courts shall review a trial court's evaluation of the prosecutor's reasons for striking veniremembers under a "clearly erroneous" standard. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992), cert. denied, ___ U.S. ____, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992).
The prosecutor stated that he struck veniremembers Marilyn Roberts and Nedra Thomas because they appeared to be inattentive. Inattentiveness is a racially neutral reason for exercising a peremptory strike. Johnson v. State, 740 S.W.2d 868, 871 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). The prosecutor observed that both women clutched their purses throughout voir dire, leading the prosecutor to believe that they did not want to be there and that they were ready to leave. In addition, the prosecutor noted that Roberts also held on to an umbrella during the entire ninety minute proceeding and that Thomas appeared to be sleeping. The defense did not dispute the observations of the prosecutor but instead offered other possible explanations for the ladies' conduct. Great deference is given to the trial judge in assessing the credibility of the prosecutor, content of the explanation, and all other surrounding facts and circumstances concerning a finding of purposeful discrimination. Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987). We cannot say that the findings of the trial court regarding Roberts and Thomas were clearly erroneous.
The prosecutor struck William Neely because the prosecutor did not think that Neely could abbreviate his religion. On his juror information card, Neely listed his religion as "Med." Although the prosecutor acknowledged that he did not know what this meant, he stated that if Neely was trying to convey that he was a Methodist, he incorrectly abbreviated his religion. However, we do not need to review the prosecutor's reasons for striking Neely because Neely was too far down the jury list to be chosen. See Gambel v. State, 835 S.W.2d 788, 791 (Tex.App.-Houston [14th Dist.] 1992, no pet.). The last veniremember to be taken for the jury was forty-fourth on the jury list. Neely was forty-seventh on the list. Therefore, appellant can show no harm by the excusal of Neely. See Rousseau v. State, 855 S.W.2d 666, 680 (Tex.Crim.App.1993), cert. denied, ___ U.S. ____, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). Appellant's first point of error is overruled.
In his second and third points of error, appellant argues that his counsel was ineffective for failing to offer the jury information cards at the Batson hearing. Appellant contends that the information cards would have supported his claim that the prosecution improperly struck Neely in that the cards would have shown that a number of persons in the venire panel, in addition to Neely, either did not know their religious preference or how to abbreviate it. In addition to his own claim, appellant claims his counsel was ineffective on the behalf of Neely. However, as previously discussed, appellant's objection to the striking of Neely is moot because he can show no harm by the striking of Neely. See Rousseau, 855 S.W.2d *68 at 680; see also Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 1370-71, 113 L. Ed. 2d 411 (1991) (holding defendant must suffer "injury-in-fact" in order to bring a Batson challenge on behalf of a third party). Appellant's third and fourth points of error are overruled.
In his fourth point of error, appellant argues that the weight of the evidence fails to establish the element of identity beyond a reasonable doubt. Appellant argues that the Texas Constitution grants conclusive jurisdiction to the courts of appeals over questions of factual sufficiency and great weight and preponderance. See Tex. Const. art. V, § 6. Appellant bases his argument on Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990). However, this court has routinely found the Meraz standard applicable only when reviewing those issues upon which the defendant bears the burden of proof. Richard v. State, 830 S.W.2d 208, 213-14 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd); Mukes v. State, 828 S.W.2d 571, 573 (Tex.App.-Houston [14th Dist.] 1992, no pet.); Brown v. State, 804 S.W.2d 566, 571 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). In all other instances, we will review a sufficiency of the evidence point in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Mukes, 828 S.W.2d at 573.
We believe that the evidence was sufficient for the fact finder to determine, beyond a reasonable doubt, that appellant was the perpetrator of the crime. Sergeant Rohling testified that he got a very good look at appellant as Rohling overtook the jeep in his squad car and when appellant bailed out of the jeep after crashing into the bush. At trial, Rohling unequivocally identified appellant as the person he saw driving the stolen jeep. The trier of fact is the exclusive judge of a witness's credibility. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We may not sit as a "thirteenth juror" and supplant the jury's judgment with our own view of the testimony. Id. Appellant's fourth point of error is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2634715/ | 14 Cal. Rptr. 3d 58 (2004)
90 P.3d 1216
33 Cal. 4th 61
Freddie FLETCHER, Plaintiff and Appellant,
v.
Carlyle DAVIS et al., Defendants and Respondents.
No. S114715.
Supreme Court of California.
June 10, 2004.
Rehearing Denied August 11, 2004.
*59 Freddie Fletcher, in pro. per., for Plaintiff and Appellant.
Latham & Watkins, Susan S. Azad, Los Angeles, and Kathryn M. Davis, San Francisco, for Defendants and Respondents Carlyle Davis, TransCoast Financial Inc. Defined Benefit Trust, Carlyle Davis and Barbara Davis as Trustees of TransCoast Financial Inc. Defined Benefit Trust and TransCoast Financial Inc.
Gernsbacher & Associates and David Gernsbacher, Los Angeles, for Defendants and Respondents Arthur Gilbert and David Gernsbacher.
*60 Stocker & Lancaster and Jay F. Stocker for Defendant and Respondent Master Washer & Stamping Co., Inc.
Fischbach & Fischbach and Joseph Fischbach, Beverly Hills, for Defendant and Respondent Joseph Fischbach.
BAXTER, J.
When an attorney wishes to secure payment of hourly legal fees and costs of litigation by obtaining a charging lien against a client's future recovery, must the attorney obtain the client's consent in writing? We conclude that rule 3-300 of the Rules of Professional Conduct of the State Bar of California (rule 3-300), which requires the client's informed written consent to the attorney's acquisition of an interest adverse to the client, applies to such a transaction and therefore reverse in part the judgment of the Court of Appeal.
BACKGROUND
Because this case reaches us after the trial court sustained defendants' demurrer, we assume the facts alleged in plaintiff's complaint are true.
In November 1995, Master Washer & Stamping Co., Inc. (Master Washer), was evicted for nonpayment of rent. Subsequently, David Gernsbacher, the attorney for landlord Arthur Gilbert, filed a lawsuit against Master Washer for breach of the lease. He also refused to allow Master Washer to retrieve its equipment, which was Master Washer's only asset. Without it, Master Washer could not conduct its business. Master Washer retained plaintiff, attorney Freddie Fletcher, to defend the breach-of-lease action and to institute a conversion action for damages. Master Washer orally agreed to pay all costs plus Fletcher's fee of $200 per hour. In lieu of a cash retainer, Master Washer agreed to grant Fletcher a lien on any judgment or settlement in its litigation with Gilbert. If the judgment or settlement was insufficient, Master Washer agreed to pay the difference from the income it earned once it resumed operations. Master Washer also promised Fletcher a "bonus" of an unspecified percentage of any judgment obtained against Gilbert if extensive litigation or trial was required and if the recovery in the case was "large."
Fletcher prepared and filed a complaint for conversion against Gilbert and Gernsbacher. Prior to filing the complaint, Fletcher sent Master Washer a memorandum setting forth his understanding of the terms of their oral retainer agreement. Master Washer's president, William Scallon, represented to Fletcher that he would sign a written retainer agreement, but never did so. The suits between Gilbert and Master Washer were consolidated.
While the Gilbert/Master Washer litigation was pending, Fletcher agreed to do additional, personal legal work on behalf of Scallon and Scallon's mother. In each matter, Scallon, on behalf of Master Washer, orally granted Fletcher a lien on Master Washer's prospective recovery against Gilbert in the conversion action.
In Master Washer's conversion action against Gilbert and Gernsbacher, Gernsbacher obtained a summary judgment. In Gilbert's action against Master Washer for breach of lease, Gilbert and Master Washer entered into an agreement under which Master Washer admitted liability to Gilbert for breach of the lease and stipulated a judgment be entered against it and in favor of Gilbert for $85,000 in damages. (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 214-215, 104 Cal. Rptr. 2d 461.) Master Washer's conversion action against Gilbert was tried to a jury and resulted in a mistrial. As Fletcher prepared for a second trial, Master Washer discharged him and replaced *61 him with defendant Joseph Fischbach. Scallon also discharged Fletcher from the other legal matters Fletcher was handling on behalf of Scallon and his mother.
The second trial of Master Washer's conversion action against Gilbert resulted in a judgment in favor of Master Washer in the sum of $504,000 plus interest.
Eleven days after entry of judgment in favor of Master Washer in its conversion action against Gilbert, defendant Carlyle Davis filed a collection suit against Gilbert, Master Washer, and Scallon, seeking to stay disbursement of the judgment proceeds and to satisfy, from that recovery, criminal restitution and civil judgments he held against Scallon. The trial court issued a temporary restraining order prohibiting Scallon's diversion of the proceeds from the Master Washer judgment against Gilbert. The following day, Gilbert deposited in the Davis collection action the sum of $618,194.10, representing the amount of the Master Washer judgment plus accrued interest. A few weeks later, the parties to the Davis action and others claiming an interest in the Master Washer judgment stipulated to a disbursement of the judgment in specified amounts to Davis, Gilbert, Master Washer, and Fischbach. The trial court approved the stipulation and ordered the Master Washer judgment disbursed accordingly. Under the stipulation, nearly all the judgment proceeds were disbursed to Davis, Gilbert, Master Washer, and Fischbach.
Fletcher alleges that he did not learn about the Davis action or the stipulated disbursement of the Master Washer judgment until the day after the funds had been disbursed. Fletcher then filed this action against Master Washer, Davis, Fischbach, Gilbert, and Gernsbacher, alleging that defendants were on notice of his lien at the time they stipulated to the disbursement of the proceeds from the Master Washer judgment.
The trial court sustained the demurrers of Davis, Fischbach, Gilbert, and Gernsbacher and dismissed the action as to them on the grounds Fletcher did not and could not plead facts showing the perfection of a lien on the Master Washer judgment or that the defendants had knowledge of such a lien.[1] The Court of Appeal reversed, holding that Fletcher's lien did not have to be in writing to be valid and that Fletcher did not have to obtain a judgment as to the existence and amount of the lien before asserting a lien on the Master Washer recovery. We granted review.
DISCUSSION
"A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." (Civ.Code, § 2872.) An attorney's lien "upon the fund or judgment which he has recovered for his compensation as attorney in recovering the fund or judgment . . . is denominated a `charging lien.'" (Goodrich v. McDonald (1889) 112 N.Y. 157, 19 N.E. 649, 651.) A charging lien may be used to secure either an hourly fee or a contingency fee. (Cetenko v. United California Bank (1982) 30 Cal. 3d 528, 531-532, 179 Cal. Rptr. 902, 638 P.2d 1299.)
In most jurisdictions, a charging lien is established by operation of law in *62 favor of an attorney to satisfy attorney fees and expenses out of the proceeds of a prospective judgment. (City of Los Angeles v. Knapp (1936) 7 Cal. 2d 168, 173, 60 P.2d 127; Wagner v. Sariotti (1943) 56 Cal. App. 2d 693, 697, 133 P.2d 430.) But in California, with a few exceptions not pertinent here (see 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 194, pp. 249-250), "an attorney's lien is created only by contract. . . . Unlike a service lien or a mechanic's lien, for example (Civ.Code, §§ 3051, 3110), an attorney's lien is not created by the mere fact that an attorney has performed services in a case." (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1172, 121 Cal. Rptr. 2d 532; see also Haupt v. Charlie's Kosher Market (1941) 17 Cal. 2d 843, 845, 112 P.2d 627.)
Fletcher's complaint alleges that Master Washer orally granted him a charging lien for hourly attorney fees on any recovery Master Washer subsequently obtained from Gilbert in the conversion action. The trial court ruled that no valid lien existed because, under rule 3-300, a client must consent in writing to an attorney's charging lien against the client's future recovery. The Court of Appeal disagreed, holding that rule 3-300 was inapplicable in that an attorney's charging lien is not "adverse" within the meaning of Hawk v. State Bar (1988) 45 Cal. 3d 589, 247 Cal. Rptr. 599, 754 P.2d 1096 (Hawk).
Rule 3-300, which is entitled "Avoiding Interests Adverse to a Client," provides: "A member shall not . . . knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied: [¶] (A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and [¶] (B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and [¶] (C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition." (Italics added.)
An attorney's charging lien is a "security interest" in the proceeds of the litigation. (Isrin v. Superior Court (1965) 63 Cal. 2d 153, 158, 45 Cal. Rptr. 320, 403 P.2d 728; see also Wagner v. Sariotti, supra, 56 Cal.App.2d at pp. 697-698, 133 P.2d 430.) Accordingly, the question here becomes whether Fletcher's charging lien was "adverse" to Master Washer. In making that determination, we must be mindful that "`[i]n civil cases, "there are no transactions respecting which courts . . . are more jealous and particular, than dealings between attorneys and their clients."'" (Eschwig v. State Bar (1969) 1 Cal. 3d 8, 16, 81 Cal. Rptr. 352, 459 P.2d 904.)
Although it is difficult to anticipate with precision the myriad of transactions that may arise between an attorney and a client, an attorney generally "must avoid circumstances where it is reasonably foreseeable that his acquisition may be detrimental, i.e., adverse, to the interests of his client." (Ames v. State Bar (1973) 8 Cal. 3d 910, 920, 106 Cal. Rptr. 489, 506 P.2d 625 (Ames).) Under this standard, we have characterized as adverse an attorney's purchase of a note secured by a first deed of trust on property that was the subject of the litigation the attorney was engaged to pursue and on which the clients had a note secured by the second deed of trust (Ames, supra, 8 Cal.3d at pp. 918-920, 106 Cal. Rptr. 489, 506 P.2d 625); an attorney's acquisition of a writ of execution against the husband's property to secure *63 payment of fees in a domestic dispute and the attorney's subsequent decision to levy on his own writ instead of the writ of his client, the wife (Silver v. State Bar (1974) 13 Cal. 3d 134, 139-140, 117 Cal. Rptr. 821, 528 P.2d 1157); and an attorney's acquisition from the client of a note secured by a deed of trust in real property in order to secure payment of legal fees (Hawk, supra, 45 Cal.3d at pp. 593-594, 247 Cal. Rptr. 599, 754 P.2d 1096).
We have contrasted the above transactions with an unsecured promissory note, which "gives an attorney only a right to proceed against the client's assets in a contested judicial proceeding at which the client may dispute the indebtedness. The note allows the attorney to obtain a judgment, and to seek to enforce the judgment against the client's assets, if any. It does not give the attorney a present interest in the client's property which the attorney can summarily realize." (Hawk, supra, 45 Cal.3d at pp. 600-601, 247 Cal. Rptr. 599, 754 P.2d 1096.)
An attorney's charging lien on the proceeds of the litigation falls somewhere between these extremes. Defendants Davis and Fischbach argue that Fletcher's charging lien was adverse to Master Washer because, under Ames, supra, 8 Cal.3d at page 920, 106 Cal. Rptr. 489, 506 P.2d 625, it was "reasonably foreseeable" that its acquisition by Fletcher could become detrimental to the client. However, Fletcher and the Court of Appeal use a different test. They contend that Hawk modified the "reasonably foreseeable" test such that only those transactions that permit the attorney to summarily extinguish the client's interest in the property are deemed adverse, relying in particular on this sentence from Hawk, supra, 45 Cal.3d at page 600, 247 Cal. Rptr. 599, 754 P.2d 1096: "Again, acquiring the ability to summarily extinguish the client's interest in property is what makes the acquisition `adverse.'"
Fletcher and the Court of Appeal have misread Hawk, which nowhere criticized Ames and instead acknowledged explicitly that "[w]e have also said that an attorney who has obtained an interest in the property of a client where it is reasonably foreseeable that his acquisition may become detrimental to the client, even though his intention is to aid the client, has acquired an interest adverse to a client." (Hawk, supra, 45 Cal.3d at p. 599, 247 Cal. Rptr. 599, 754 P.2d 1096; see also Connor v. State Bar (1990) 50 Cal. 3d 1047, 1057, 269 Cal. Rptr. 742, 791 P.2d 312.) That standard was triggered, we explained, when an attorney's "`personal financial interest was in conflict with [his client's] interest in obtaining full repayment of its loan'" (Hawk, supra, at p. 599, 247 Cal. Rptr. 599, 754 P.2d 1096), when counsel had "acquired an interest in the subject matter of the litigation for which they had been retained" (id. at p. 600, 247 Cal. Rptr. 599, 754 P.2d 1096), and when a secured note "can be used to summarily extinguish the client's interest in the property." (Ibid.) Fletcher's proposed test would define only the last of these transactions as adverse. Plainly, the single sentence seized on by Fletcher merely described the adverse interest presented in that case. It did not purport to define what makes an interest adverse in all circumstances.
Applying the correct test, we agree with Davis and Fischbach that it was reasonably foreseeable the charging lien could become detrimental to the client. Although a charging lien does not grant an attorney the power to summarily extinguish the client's interest in any recovery, a charging lien could significantly impair the client's interest by delaying payment of the recovery or settlement proceeds *64 until any disputes over the lien can be resolved. For example, when there is a dispute over the existence or amount of an attorney's charging lien, the attorney can prevent the judgment debtor or the settling party from remitting the recovery to the client until the dispute is resolved. (Ex parte Kyle (1851) 1 Cal. 331, 332, 1850 WL 645 [an attorney with a charging lien "may stop the money in transitu, by giving notice to the opposite party not to pay it, until his claim for costs be satisfied, and then moving the court to have the amount of his costs paid to him in the first instance"]; see generally 7 Am.Jur.2d (1997) Attorneys at Law, § 342, p. 335 [charging lien grants attorney "the right to have the court interfere to prevent payment by the judgment debtor to the creditor in fraud of the attorney's right to it"].) Alternatively, when the settlement draft is made jointly payable to the client and the attorney, the attorney may refuse to endorse the check until the dispute is resolved.[2] (Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2003) ¶ 5:830.) Even when the proceeds have been deposited in the client's trust account, the attorney may withhold an amount equivalent to the disputed portion. (Id., ¶ 5:829; Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2003) ¶ 4:544.) In each of these instances when the charging lien is disputed, the client's recovery will be "`tied up until everyone involved can agree on how the money should be divided . . . or until one or the other brings an independent action for declaratory relief.'" (Carroll v. Interstate Brands Corp., supra, 99 Cal.App.4th at p. 1176, 121 Cal. Rptr. 2d 532.)
In sum, a charging lien grants the attorney considerable authority to detain all or part of the client's recovery whenever a dispute arises over the lien's existence or its scope. That would unquestionably be detrimental to the client. (Cf. Brockway v. State Bar (1991) 53 Cal. 3d 51, 64-65, 278 Cal. Rptr. 836, 806 P.2d 308 [an adverse interest exists where the fee arrangement "gives the attorney an ownership interest in client property that has a value greater than the amount absolutely agreed upon in fees" (italics added)].) A charging lien is therefore an adverse interest within the meaning of rule 3-300 and thus requires the client's informed written consent. Requiring the client's informed written consent has the additional benefit of ensuring that the client truly agrees to the creation of the lien and its scope, thus making it less likely that a disagreement will arise that could lead to litigation or other action adverse to the client, and also impressing upon the client the importance of his or her consent and of the right to withhold it. (Cf. Chambers v. Kay (2002) 29 Cal. 4th 142, 157 & fn. 9, 126 Cal. Rptr. 2d 536, 56 P.3d 645.)
Our construction of rule 3-300 finds additional support in the discussion note following the rule, which states that "[r]ule 3-300 is intended to apply where the member wishes to obtain an interest in client's property in order to secure the amount of the member's past due or future fees." (Discussion, 23 pt. 3 West's Ann.Codes, Court Rules (1996 ed.) Rules Prof. Conduct, foll. Rule 3-300, p. 366.) A charging lien on a future recovery qualifies as an interest in the client's property designed to secure the member's fees.
Our construction is also supported by the State Bar of California's Standing Committee on Professional Responsibility and Conduct, which concluded in a formal opinion that "it is unethical to require a *65 lien or security device unless the member adheres to the provisions of rule 5-101 [now rule 3-300]." (1 Cal. Compendium on Prof. Responsibility, State Bar Formal Opn. No.1981-62, at p. IIA-174.) The Los Angeles County Bar Association came to the same conclusion: "Whenever an attorney engages in a fee arrangement which involves the use of subject matter as a source of payment, the attorney must be extremely careful to protect his client's rights and avoid adverse interest. At a minimum, the fee arrangement must be governed by the standards set forth in Rule 5-101 [now rule 3-300]." (3 Cal. Compendium on Prof. Responsibility, L.A. County Bar Assn. Formal Opn. No. 416 (Oct. 25, 1983), p. 122; contra, 2 Cal. Compendium on Prof. Responsibility, Bar Assn. of S.F. Ethics Opn. No.1997-1, p. IIB-139.)[3]
The Restatement Third of the Law Governing Lawyers is in accord. Under the Restatement, a lawyer "may contract in writing with the client for a lien on the proceeds of the representation to secure payment for the lawyer's services and disbursements in that matter." (Rest.3d Law Governing Lawyers (2000) § 43, subd. (2)(a), p. 306, italics added.) The requirement of a writing "ensures that the client has notice that the lawyer may detain part of any recovery and an opportunity to bargain for a different result [citation]. The requirement of a writing also permits third parties to verify the lien's existence and provisions." (Id., § 43, com. e, p. 309.)
The Court of Appeal perceived that a conflict existed among other jurisdictions as to whether a charging lien must be in writingciting Wisconsin and Florida as examplesbut a closer examination reveals that no such conflict exists. The Court of Appeal correctly identified Wisconsin as a jurisdiction that requires an attorney's charging lien to be in writing. (Weigel v. Grimmett (App.1992) 173 Wis. 2d 263, 496 N.W.2d 206, 209-210.) Wisconsin thus supports our holding. However, the court erred in classifying Florida as a jurisdiction with a contrary position. In Florida, as in most other jurisdictions, a charging lien arises by operation of law when an attorney is retained and a positive judgment or settlement is obtained. Hence, there is no requirement in Florida that the client agreeorally or in writingto the lien. (Litman v. Fine, Jacobson, Schwartz, et al. (Fla.Dist.Ct.App.1987) 517 So. 2d 88, 91-92.) Fletcher thus has failed to identify any jurisdiction that has embraced the rule he proposes.
Finally, our holding that an attorney's charging lien to secure payment of hourly fees is adverse within the meaning of rule 3-300 does not compromise the public policy in favor of attorney liens. Rule 3-300 does not bar attorneys from obtaining liens on future recoveries. The rule merely requires the attorney who wishes to obtain such a lien to explain the transaction fully, to offer fair and reasonable terms, to provide a copy of the agreement, to give the client an opportunity to *66 seek independent legal advice, and to secure the client's written consent. (Hawk, supra, 45 Cal.3d at p. 601, 247 Cal. Rptr. 599, 754 P.2d 1096.) This is not a great deal more than is now required for most fee agreements: attorneys are required, with limited exceptions, to put most fee agreements in writing and explain fully the terms of the agreement. (Ibid.; see Bus. & Prof.Code, §§ 6147, 6148.) As we stated in Hawk in similar circumstances, "[w]e do not think that this interpretation of the rule is unduly onerous." (Hawk, supra, 45 Cal.3d at p. 601, 247 Cal. Rptr. 599, 754 P.2d 1096.)
We therefore conclude that an attorney who secures payment of hourly fees by acquiring a charging lien against a client's future judgment or recovery has acquired an interest that is adverse to the client, and so must comply with the requirements of rule 3-300.[4] Fletcher failed to comply with the rule. Accordingly, Fletcher's lien may not be enforced in this proceeding. Were we to hold otherwise, "we would, in effect, be both countenancing and contributing to a violation of a rule we formally approved in order `to protect the public and to promote respect and confidence in the legal profession.'" (Chambers v. Kay, supra, 29 Cal.4th at p. 158, 126 Cal. Rptr. 2d 536, 56 P.3d 645.) Such a result would be untenable as well as inconsistent with the policy considerations that animated the adoption of rule 3-300.
DISPOSITION
The judgment of the Court of Appeal is reversed insofar as it reversed the trial court's order sustaining the general demurrers of defendants Joseph S. Fischbach and Carlyle E. Davis et al., and the cause is remanded for further proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J., KENNARD, WERDEGAR, CHIN, BROWN, and MORENO, JJ.
NOTES
[1] The trial court sustained the demurrer of Master Washer with leave to amend on the ground Fletcher had not pleaded a timely written notice to Master Washer of the right to arbitrate an attorney-client fee dispute, as required by Business and Professions Code section 6201. When Fletcher failed to amend his complaint within the allotted time, the trial court dismissed his action against Master Washer. That ruling, which was affirmed by the Court of Appeal, has not been challenged here.
[2] Indeed, the attorney must do so in order to preserve the charging lien. (In the Matter of Feldsott (Review Dept.1997) 3 Cal. State Bar Ct. Rptr. 754, 758, 1997 WL 672661.)
[3] Without citing its Formal Opinion No. 416, a subsequent opinion of the Los Angeles County Bar Association suggested that rule 3-300 did not apply to a contingency fee coupled with a lien against the client's prospective recovery "in the same matter in which legal services are being provided." (3 Cal. Compendium on Prof. Responsibility, L.A. County Bar Assn. Formal Opn. No. 496 (Nov. 16, 1998) p. 238.) However, the opinion did require a written agreement if the attorney's lien secured hourly fees "incurred in an unrelated case." (Id. at p. 239.) We are presented here only with a lien to secure hourly fees and thus do not decide whether rule 3-300 applies to a contingency-fee arrangement coupled with a lien on the client's prospective recovery in the same proceeding. (Cf. Bus. & Prof.Code, § 6147.)
[4] Fletcher also contends that Business and Professions Code sections 6147 and 6148, which regulate contingency-fee and hourly-fee contracts between attorneys and their clients, impliedly preempt the field of attorney-client transactions, and that section 6148, subdivision (d)(4) in particular exempted his fee agreement with Master Washer, a corporation, from any requirement of a writing. As demonstrated above, however, an agreement to secure client payment with an interest in client property imposes risks and consequences beyond those inherent in a fee agreement. A finding that regulation of the former is preempted by regulation targeted at the latter would render rule 3-300 meaningless, even though the drafters of the rule expressly contemplated that these provisions would have complementary effects. (Discussion, 23 pt. 3 West's Ann.Codes, Court Rules, supra, Rules Prof. Conduct, foll. Rule 3-300, p. 366 ["Rule 3-300 is not intended to apply to the agreement by which the member is retained by the client, unless the agreement confers on the member an . . . interest adverse to the client"].) Indeed, as Fletcher concedes, "if the lien is adverse to the client, then the requirements of Rule 3-300 are required to be satisfied." Moreover, we recognized the concurrent operation of the predecessor to rule 3-300 and Business and Professions Code sections 6147 and 6148 in Hawk, supra, 45 Cal.3d at page 601, 247 Cal. Rptr. 599, 754 P.2d 1096. Finally, a finding of preemption would divest clients of any meaningful protection even when an attorney secures an interest that allows the client's interest in the property to be summarily extinguished. Fletcher offers nothing to suggest the Legislature intended this result. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423428/ | 20 F.Supp.2d 240 (1998)
Susan K. PILET, Plaintiff,
v.
Kenneth S. APFEL,[1] Commissioner of the Social Security Administration, Defendant.
No. Civ.A. 97-10478-WGY.
United States District Court, D. Massachusetts.
September 23, 1998.
*241 Taramattie Doucette, Greater Boston Legal Services, Boston, MA, for Susan K. Pilet, plaintiff.
*242 Christopher M. Tauro, Assistant U.S. Attorney, Boston, MA, for Shirley Chater, Commissioner of the Social Security Administration, Kenneth S. Apfel, John J. Callahan, defendants.
MEMORANDUM AND ORDER
YOUNG, District Judge.
This is an action under Sections 205(g) and 1361(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3). The plaintiff, Susan Pilet ("Pilet"), seeks judicial review of a final decision, dated May 25, 1995, of the Commissioner of the Social Security Administration ("the Commissioner") denying her applications for Social Security Disability Insurance Benefits (SSDI) and Supplemental Security Income (SSI). The Appeals Council denied Pilet's request for review, rendering the determination of the Administrative Law Judge the final decision of the Commissioner subject to judicial review. See 20 C.F.R. §§ 404.981, 416.1481. Pilet asks this court either to reverse and set aside the Commissioner's decision, or to remand her claim. She claims that new evidence should have been reviewed by the Administrative Law Judge, that the Administrative Law Judge made errors of law, and that there was no substantial evidence upon which he might properly base his decision to deny her benefits. She seeks reasonable attorney fees and costs.
I. BACKGROUND
Pilet, born August 4, 1961, was 34 years old at the time of the decision of the Administrative Law Judge. She graduated from high school and completed one year of college (Tr. 35-36, 104). Between 1989 and 1993 she held several office jobs, each lasting between 2 and 14 months. She left her job as an administrative assistant and as a medical assistant in a podiatry clinic because of alleged chronic back pain (Tr. 198). Between 1993 and 1995, the period when she was seeking treatment for her back pain, Pilet engaged in seven months of training sponsored by the Massachusetts Rehabilitation Commission (Tr. 37-38), and a part time training program to become a respite aid worker (Tr. 199).
Pilet applied for SSI and SSDI benefits on July 15, 1993 (Tr. 49-53), claiming a disabling combination of physical and mental impairments. Pilet's applications were denied initially on September 24, 1993, and again upon reconsideration on February 18, 1994 (Tr. 13, 23, 65-95). Pilet timely filed a request for a hearing and was heard on February 16, 1995 (Tr. 10-48). The Administrative Law Judge, in a decision dated May 25, 1995, found that Pilet was not disabled through December 31, 1993, when last she met the disability insured requirements of the Social Security Act, or through the date of his decision (Tr. 10-26). He found that Pilet's allegations of an inability to perform even sedentary work during the relevant period were not supported by substantial objective medical evidence or by the conclusions of any treating or examining physician and that her own allegations of pain could not convincingly add to the record in order to constitute a credible basis for disability unsupported by the objective evidence (Tr. 22). Subsequently, the Appeals Council denied Pilet's request for review (Tr. 4-5).
In 1984, Pilet was injured in an automobile accident. She was riding an MBTA bus with two of her children on her lap when the bus stopped abruptly while her head was turned (Tr. 42). Between 1984 and 1989, in order to alleviate her neck and upper back pain, she began to take and eventually became addicted to cocaine (Tr. 196). By 1989, she had stopped taking drugs and has not used them since (Tr. 45).
There is no medical evidence that she suffered back pain between 1989 and 1991 (Tr. 104, 124, 146, 149, 198) as her initial complaints of back pain did not start until the end of 1992 (Tr. 173). By March, 1993, Pilet developed lower back pain with radiation to both legs (Tr. 173-174, 196-200). She started treatment with Dr. Emilio Jacques in June, 1993. X-rays of the lumbar spine taken on June 30, 1993, revealed mild lumbar degenerative changes at the L3-L4 level with minor anomaly of L5 (Tr. 155). The doctor's examination found tenderness over the right sacroiliac joint and the right sciatic notch (Tr. 155-160). In July, Dr. Jacques diagnosed Pilet with "chronic low back syndrome *243 secondary to degenerative joint disease" (Tr. 158). Her back pain continued through October, 1993, when Dr. Jacques stated that Pilet was "disabled to work at the present time" (Tr. 160). Shortly thereafter she stopped seeing Dr. Jacques, claiming that her condition had not improved during the time he was treating her (Tr. 196-197). She did not seek further medical treatment for her back pain until March, 1994, when she attended an evaluation at the behavioral medicine pain program at Deaconess Hospital and was prescribed Amitriptyline[2] by Dr. Janet Yardley (Tr. 174). At her hearing, she testified that she "has a lot of pain in it in the spine itself." (Tr. 38). She further testified that she "also get a lot of pains going down [her] legs." Id. Through 1995 Pilet did not seek out medical care for her back pain, although she claimed that she was unable to work full time as a result of that pain (Tr. 44).
Pilet also complained of psychological impairments including depression and insomnia. Although she underwent a one-year course of psychotherapy in October, 1991, at Brigham and Women's Hospital (Tr. 167), there is no further objective evidence of her depression until December, 1993, when Pilet was diagnosed by Dr. Carin Roberge as suffering from recurrent major depression without psychotic features and a sleep-wake schedule disorder (Tr. 167-170). By January, 1994, Dr. Roberge commented that Pilet's condition had improved significantly over the month and that her prognosis was good (Tr. 162). Shortly thereafter, Pilet stopped seeing Dr. Roberge because she felt that she was "OK" and that she could go back if necessary (Tr. 39, 44). In February, 1994, Dr. John Warren, in his Residual Physical Functional Capacity Assessment (RPFC) of Pilet, found that she was depressed and needed medication (Tr. 74) and that she had an affective disorder which resulted in a moderate limitation in her daily living (Tr. 92). There is no evidence of other psychological treatment or evaluation prior to the decision of the Administrative Law Judge in May, 1995.
Pilet allegedly relapsed into a deep depression in April, 1995 (Tr. 196).
In November, 1995, after the Administrative Law Judge made his decision in May 1995, Pilet was hospitalized after making a suicide attempt. Upon hospitalization, she admitted to visual and auditory hallucinations and to having been depressed for many years (Tr. 213-214). Although there is no discussion in this report about her back pain, Dr. Leonard Marcus, in his discharge report, stated that the primary cause of Pilet's depression was her ongoing struggle with her chronic pain syndrome as well as the financial stresses which arose as a result of her not being able to hold down a steady job (Tr. 210). In December she was examined by Dr. Scott Haas, who found that her motivation and focus appeared at times to be diminished and that her undersocialization undermined her overall ability to develop and sustain adequate motivation as well as persist in solving problems of increasing difficulty (Tr. 202). He diagnosed her as suffering from an antisocial personality disorder (Tr. 201-208).
In 1996, Pilet filed a new application for SSI benefits and was found to be disabled (Complaint ¶ 10). This dispute thus focuses on the period between the application for benefits which was denied in May, 1995, and the grant of benefits in 1996.
II. ANALYSIS
A. The Standard of Review
This Court's review of a Social Security disability benefit determination is limited under 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." See also Durant v. Chater, 906 F.Supp. 706, 710 (D.Mass.1995). The First Circuit has defined "substantial evidence" as existing "`[when] a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.'" Ortiz v. Secretary of Health & Hum. *244 Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Secretary of Health & Hum. Servs., 647 F.2d 218, 222 [1st Cir. 1981]). The Commissioner is responsible for determining issues of credibility and drawing inferences from the record evidence. Id. Accordingly, this Court must affirm the Commissioner's denial "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Rodriguez Pagan v. Secretary of Health & Hum. Servs., 819 F.2d 1, 3 (1st Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988).
B. Disability Standard
A district court reviewing a decision of the Commissioner must determine whether the decision is supported by substantial evidence and conforms to statutory requirements. See Geoffroy v. Secretary of Health & Hum. Servs., 663 F.2d 315, 319 (1st Cir.1981). The relevant statute defines a disabled individual as one who is unable:
to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ...
42 U.S.C. § 423(d)(1)(A) (1982). Section 423(d)(2)(A) further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ...
Id. § 423(d)(2)(A).
The Commissioner has promulgated regulations that employ a series of tests to determine whether a claimant is disabled. 20 C.F.R. § 404.1520 (1985). See Goodermote v. Secretary of Health & Hum. Servs., 690 F.2d 5, 6 (1st Cir.1982). In particular, the Social Security Administration asks five questions in the following order:
First, is the claimant currently engaged in a substantial gainful activity? If so, the claimant is automatically considered not disabled. 20 C.F.R. 404.1520(b) (1997).
Second, does the claimant have a severe impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities? 20 C.F.R. § 404.1520(c). If medical signs and findings show that there is a medically determinable physical or mental impairment present that could reasonably be expected to produce pain, then allegations of that pain will be considered as evidence in a determination of the severity of claimant's impairment(s). See Avery v. Secretary of Health & Hum. Servs., 797 F.2d 19, 27 (1st Cir.1986). If a claimant does not have a severe impairment, then the claimant is considered not disabled.
Third, if a claimant has a severe impairment which meets the duration requirement, the next question is whether the impairment or combination of impairments is listed in or equivalent to impairments listed in 20 C.F.R. Part 404, Supt. P, App. 1 (hereinafter Appendix 1). If so, then the claimant is automatically considered disabled. See 20 C.F.R. § 404.1520(d).
These first three tests are threshold "medical" tests. If the claimant is found to have a severe impairment (test 2) but that impairment is not equivalent to one listed in Appendix 1 (test 3), the agency goes on to the fourth and fifth questions, which apply "vocational" tests.
The fourth question asks whether the claimant's impairment prevents her from performing the sort of work she has done in the past. See 20 C.F.R. § 404.1520(e). If not, she is not disabled. If so, the agency asks the fifth question: Does the claimant's impairment prevent her from performing other work of the sort found in the economy? See 20 C.F.R. § 404.1520(f). If so, she is disabled; if not, she is not disabled. See Goodermote, 690 F.2d at 6-7.
In applying these last two "vocational" tests, the claimant has the burden of proving that she is disabled under the fourth test; that is, she must prove that her disability is *245 serious enough to prevent her from working at her former jobs. The Commissioner, however, bears the burden of showing that the claimant has not satisfied the fifth test; that is, the Commissioner must show the existence of other jobs in the national economy that the claimant's impairment does not prevent her from performing. See id. at 7.
C. Sequential Analysis
Both sides agree that claimant was not engaged in substantial gainful activity at the time she filed for disability benefits (step one). Furthermore, the decision of the Administrative Law Judge states that "the record shows that the claimant continues to have an exertional impairment which is `severe' within the meaning of Section 404.1520(c) of Regulations Number 4 and Section 416.920(c) of Regulations Number 16" (Tr. 14) (step two).
The decision to deny benefits was based on step three of the sequential analysis. There the issue was, and is, whether Pilet's impairments met the twelve month duration requirement and were either listed in Appendix 1 or equal to those listed impairments. Although Pilet alleges both physical (lower back pain) and psychological (Dr. Haas's diagnoses of undersocialization and affective disorder) impairments, neither, on its own, constitutes a severe impairment that both meets the duration requirement and that is listed in Appendix 1. Nor is either equivalent to an impairment listed in Appendix 1.[3]
It remains, then, to consider whether Pilet suffered from a severe combination of physical and mental impairments for the required duration. Although there is evidence that Pilet suffered from depression, she stated at her hearing that her depression "comes and goes" and that it was not as bad in 1993 (Tr. 41). Since Pilet's depression was not an on-going, chronic impairment, the Administrative Law Judge did not commit legal error when he failed to evaluate the combined effects of Pilet's depression and back pain.
Pilet has submitted new evidence from Dr. Haas that could be admitted to demonstrate the existence of a chronic, non-severe mental impairment, but this mental condition alone would not be sufficient to make Pilet eligible for disability benefits. Pilet would have to demonstrate that she had a coinciding physical impairment that lasted or could have lasted for at least a twelve month period. As a result, even if the Administrative Law Judge were to consider Dr. Haas' report now, it would not reasonably permit a different decision.
Finally, the Administrative Law Judge decided that Pilet's lower back problems did not constitute an ongoing severe impairment that had lasted for the required duration. The record shows that Pilet developed lower back pain in March, 1993, and that she sought treatment for this condition until October, 1993. In the doctor's final evaluation of Pilet, he stated that she was "disabled to work at the present time" with no mention of how far into the future she could expect to remain in a "disabled" condition.[4] Given the lack of on-going medical treatment, there is substantial evidence for the finding that Pilet did not have a disabling combination of impairments for the required duration.
D. Evaluation of Pain and Credibility
Pilet also claims that the Administrative Law Judge misapplied the pain standard *246 and that his credibility finding was not supported by substantial evidence. The legal standard for evaluating claimant's pain is set out in 42 U.S.C. § 423(d)(5)(A) which provides that:
An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.
42 U.S.C. § 423(d)(5)(A); see also 20 C.F.R. § 404.1529; Avery, 797 F.2d at 28-29. The Court of Appeals for the First Circuit has stated that "subjective symptoms [including pain] must be evaluated with due consideration for credibility, motivation and medical evidence of impairment." See Wauzinski v. Shalala, 1994 WL 725176 at *10 (D.Mass. 1994) (Wolf, J.) citing Gray v. Heckler, 760 F.2d 369, 374 (1st Cir.1985). A finding that a claimant is not credible "must be supported by substantial evidence" and must be bolstered by specific findings as to the relevant evidence considered in determining to disbelieve the claimant. Da Rosa v. Secretary of Health & Hum. Servs., 803 F.2d 24, 26 (1st Cir.1986). The factors to be considered when assessing the credibility of claimant's pain are highlighted in Avery. They are:
(1) The nature, location, onset, duration, frequency, radiation, and intensity of the pain; (2) Precipitating and aggravating factors (e.g. movement activity, environmental conditions); (3) Type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant's daily activities.
Avery, 797 F.2d at 28-29.
Since Pilet's allegations of disability were somewhat inconsistent with the medical record, the Administrative Law Judge evaluated the degree to which her alleged pain and other symptoms, during the relevant period, constituted an additional limitation on her ability to perform substantial gainful activity (Tr. 19). The Administrative Law Judge interpreted Pilet's engagement in vocational training programs and her reliance on a single painkiller as evidence that Pilet's pain was not sufficiently severe as to be disabling within the definition of the Act. Id. At her hearing, Pilet and her counsel stressed the fact that Pilet was engaging in training in order to improve herself, and that back pain limited her ability to complete her programs. They also discussed Pilet's unwillingness to take more drugs because of her prior addiction. Although this evidence could have swayed a hearing officer into finding her allegations of pain credible, here, given the limited amount of objective medical findings, there was substantial evidence upon which the Administrative Law Judge could ground his conclusion that Pilet's allegations were not credible and that she was, in fact, capable of returning to work.
E. Remand
In aid of her appeal, seven months after the Administrative Law Judge had denied her application for SSI and SSDI benefits, Pilet submitted three additional pieces of evidence to document the severity of her mental condition. She now argues that, even if this Court does not reverse the questioned decision *247 outright, it ought at least remand the case to the Commissioner for further proceedings.
Before a district court can remand a case for review of evidence submitted after the agency decision, two conditions must be met. See 42 U.S.C. § 405(g). First, the evidence must be material. To be material, the evidence must be 1) necessary to fully develop the facts of the case, 2) non-cumulative, and 3) essential to a fair hearing. See Bilodeau v. Shalala, 856 F.Supp. 18, 20 (D.Mass.1994) (citing Evangelista v. Secretary of Health & Hum. Servs., 826 F.2d 136, 139 [1st Cir.1987]). New evidence will not be considered material if it concerns deterioration of a non-disabling impairment that occurred subsequent to the decision. See Rawls v. Apfel, 998 F.Supp. 70, 76 (D.Mass. 1998) (citing Tirado v. Bowen, 705 F.Supp. 179, 182 [S.D.N.Y.1989]). It will, however, be considered material if it demonstrates a continuing psychiatric condition that may be severe and chronic. See Rawls, 998 F.Supp. at 76 (citing Sears v. Bowen, 840 F.2d 394, 401 [7th Cir.1988]). Also, the evidence "must permit the conclusion that the Secretary's final decision might reasonably have been different had the evidence been present at the time of decision." Falu v. Secretary of Health & Hum. Servs., 703 F.2d 24, 27 (1st Cir.1983); Evangelista, 826 F.2d at 140.
Second, the claimant must have had good cause for not presenting the evidence prior to the decision. "It is sufficient if the evidence proffered by [the claimant] was unavailable at the time of the Secretary's administrative proceedings." Bilodeau, 856 F.Supp. at 21 (citing Geigle v. Sullivan, 961 F.2d 1395 [8th Cir.1992]).
The first piece of evidence that Pilet believes should cause a remand is the plaintiff's affidavit, detailing the nature of her impairments and her pain. Given that Pilet was accompanied at her hearing by an experienced paralegal from Greater Boston Legal Services, she can show no good cause why this information was not made available prior to the decision. See Evangelista, 826 F.2d at 142. Remand is not necessary to consider the affidavit.
The second piece of evidence, the claimant's record at the Carney Hospital, is also insufficient to form the basis for remand because it is not material to the relevant time period. While the record demonstrates that Pilet suffered from severe depression after making a suicide attempt, these data delineate the extent to which her condition deteriorated subsequent to the decision.
Finally, Pilet submitted a psychological report by Dr. Haas who found that Pilet was undersocialized and had an affective disorder. Unlike the depression that was documented by Dr. Roberge,[5] these are findings of chronic albeit non-severe problems from which claimant suffered during the relevant time period and for the required duration. As discussed above, however, the inclusion of this new evidence in the record would not be sufficient reasonably to permit the Administrative Law Judge to change his decision. Therefore, Dr. Haas's report, like the other pieces of evidence, does not form a basis for remand.
III. Conclusion
For the foregoing reasons, the decision of the Administrative Law Judge is AFFIRMED, and Pilet's motion for summary judgement is DENIED.
NOTES
[1] On September 29, 1997, Kenneth S. Apfel was sworn in as the new Commissioner. Pursuant to Fed.R.Civ.P. 25(d)(1), Apfel is substituted as a party defendant for his predecessor in office, Shirley Chater. See Fed.R.Civ.P. 25(d)(1) ("the action does not abate and the officer's successor is automatically substituted as a party"); see also 42 U.S.C. § 405(g) ("Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Commissioner of Social Security").
[2] Amitriptyline is a mildly-sedating tricyclic anti-depressant that was prescribed in order to alleviate her insomnia as well as her back pain.
[3] If a claimant has two or more concurrent impairments which, when considered in combination, are severe, the Administrative Law Judge must also determine whether the combined effect of those impairments can be expected to continue to be severe for twelve months. If one or more of the impairments improves or is expected to improve within twelve months, so that the combined effect of the remaining impairments is no longer severe, the Commissioner will find the claimant does not meet the twelve-month duration test. 20 CFR § 404.1522(b). Furthermore, in determining whether a claimant's physical or mental impairment or impairments are of a sufficient medical severity, the Commissioner will consider the combined effect of all of the claimant's impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. 20 CFR § 404.1523, see also McDonald, 795 F.2d at 1127.
[4] It should be noted that "[a] statement by a medical source that [a claimant is] `disabled' or `unable to work' does not mean that [the Commissioner] will determine that [the claimant is] disabled." 20 CFR § 416.1527(e)(1); see also Arroyo v. Secretary of Health & Hum. Servs., 932 F.2d 82, 89 (1st Cir.1991).
[5] Dr. Haas also made findings regarding Pilet's state of depression. Since these are indicative of the deterioration of Pilet's condition after the decision, this part of his report could not be considered on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423763/ | 10 A.3d 497 (2010)
MERRITT
v.
DAIELLO.
No. 10-171.
Supreme Court of Vermont.
October 21, 2010.
Appeal Disposed of Without Published Opinion or Memorandum Decision Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423694/ | 500 F.Supp.2d 503 (2007)
Margaret DOLAN, Plaintiff,
v.
COMMUNITY MEDICAL CENTER HEALTHCARE SYSTEM, a/k/a Community Medical Center, Inc., t/d/b/a Community Medical Center Healthcare, Defendant.
No. 06cv2365.
United States District Court, M.D. Pennsylvania.
August 8, 2007.
*504 Katie R. Eyer, Equality Advocates Pennsylvania, Philadelphia, PA, Kimberly D. Borland, Borland & Borland, Wilkes-Barre, PA, for Plaintiff.
James C. Oschal, Thomas J. Campenni, Rosenn, Jenkins & Greenwald, L.L.P., Wilkes-Barre, PA, for Defendant.
MEMORANDUM AND ORDER
JOHN E. JONES III, District Judge.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before this Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12 ("the Motion"), filed by Defendant Community Medical Center Healthcare System, a/k/a Community Medical Center, Inc., t/d/b/a Community Medical Center Healthcare ("Defendant" or " CMC") on February 20, 2007. (Rec. Doc. 8). For the reasons that follow, the Motion will be denied.
PROCEDURAL HISTORY:
On December 11, 2006, Plaintiff Margaret Dolan ("Plaintiff') initiated this action by filing a Complaint. (See Rec. Doc. 1).
On February 20, 2007, Defendant filed the instant Motion, which seeks dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Rec. Doc. 8). As the Motion has been fully briefed,[1] it is ripe for disposition.
*505 STANDARDS OF REVIEW:
A. Review of Rule 12(b)(1) Motions
It is well-established that subject matter jurisdiction is required in order for a federal court to preside over a dispute. See, e.g., Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997). Because subject matter jurisdiction determines a federal court's ability to hear a case, in the disposition of a motion pursuant to Rule 12(b)(1), "the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims," id. (citation and internal quotations omitted), and the plaintiff bears the burden of persuasion as to any relevant factual disputes. Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). However, dismissal pursuant to Rule 12(b)(1) is appropriate "[o]nly if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter jurisdiction." Smith v. Social Security Administration, 54 F.Supp.2d 451, 453 (E.D.Pa. June 29, 1999). See also Kehr Packages, 926 F.2d at 1409 (reiterating that " the threshold to withstand a motion to dismiss under Rule 12(b)(1) is lower than that required to withstand a Rule 12(b)(6) motion.'" (quoting Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir.1989)))
B. Review of Rule 12(b)(6) Motions
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the veracity of a plaintiffs allegations. See Scheibe' v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.1990). In Nami v. Fauver; 82 F.3d 63, 65 (3d Cir.1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir.1986).
FACTUAL BACKGROUND:
The following recitation of the facts is based on the averments in Plaintiffs Complaint and accepted as true only for the purposes of disposition of that portion of the instant Motion which was filed pursuant to Rule 12(b)(6).[2] (Rec. Doc. 1).
In or about September 2004, Defendant, which operates a hospital employing more than 100 persons in the city of Scranton, Pennsylvania, advertised, by means of a blind job listing on the website for the Society for Human Resources Management ("SHRM"), an employment vacancy for "a Vice President for Human Resources." (Rec. Doc. 1, ¶¶ (6-8, 12). Because Plaintiff, a female currently residing in Fredericksburg, Virginia, was qualified for the position, during or about September 2004, she responded to the listing by *506 sending her resume to Cheryl Freedman ("Ms. Freedman"), a consultant with Tyler & Company. Plaintiff did so at the direction of Defendant and because Tyler & Company was serving as an agent of Defendant for the purposes of screening applicants for the aforesaid employment vacancy.
Subsequently, but also sometime during September 2004, Ms. Freedman initially screened Plaintiff during a telephone conversation. After the conversation, Tyler & Company requested that Plaintiff complete forms outlining salary history, salary expectation, and other perquisites such as car allowance bonus and deferred compensation. Plaintiff did so, indicating, inter alia, salary expectations of $175,000 per year.
Based upon Plaintiffs resume and the initial screening by Ms. Freedman, Plaintiff was given a face-to-face interview with Dennis Kain ("Mr. Kain"), the Senior Vice President of Tyler & Company on October 1, 2004. At said interview, Mr. Kain questioned Plaintiff about her experience and expertise in human resource management and health care.
Following the interview with Mr. Kain, Plaintiff continued through the recruitment process during October and November 2004, including appearing at Defendant's facility in Scranton for an interview on November 9, 2004. Plaintiff also returned to Defendant's Scranton facility for additional interviews on December 14-16, 2004.
In fact, on December 16, 2004, Plaintiff met with Barbara Bossi ("Ms. Bossi"), Defendant's Senior Vice President of Patient Care Services and Operations. During the meeting, Plaintiff stated something to the effect of although she was "seeking a salary of $175,000 annually, all things are negotiable." Id. at ¶ 26. Thus, she requested that "Defendant put its best foot forward with regard to this term." Id. As Plaintiff and Ms. Bossi were leaving the interview, Ms. Bossi "expressed her excitement with Plaintiff joining the CMC team and assured Plaintiff that an offer of employment was forthcoming." Id. at ¶ 27. Later, Plaintiff disclosed[3] to Ms. Bossi that "her sexual orientation was female homosexuality, as that term is defined at Paragraph 2(25) of the Comprehensive Scranton Relations Ordinance, 243 of 2003" ("the Ordinance").[4]Id. at ¶ 28.
On January 13, 2004, Mr. Kain informed Plaintiff that Defendant would not be hiring her and stated that the reason therefor was Defendant could not meet Plaintiffs salary requirements. Plaintiff avers that this reason was pretextual, and cites as evidence in support thereof the fact that during her interviews and meetings associated with the recruitment process, no negotiation of salary was undertaken.
Moreover, Plaintiff asserts that her sexual orientation is the true reason that she was not hired by Defendant. In support of this assertion, Plaintiff indicates that the position for Vice President for Human Resources remained open after Plaintiff was informed that she had not been selected. In addition, or in the alternative, Plaintiff asserts that the person ultimately selected for the position was not homosexual.
Because Plaintiff was not selected for the position, on or about July 11, 2005, she *507 filed a written complaint with the Human Relations Commission of the City of Scranton ("the Commission"), pursuant to the Ordinance, which alleged unlawful discrimination on the basis of sexual orientation. Moreover, Plaintiff avers that "[m]ore than one year has elapsed since the filing of the charge, and the Commission has not entered into a conciliation agreement to which the Plaintiff is a party." Id. at ¶ 10. Additionally, Plaintiff indicates that she has received some sort of notice from the Commission. Id.
DISCUSSION:
Plaintiff's Complaint contains only one (1) Count, which alleges that Defendant violated the Ordinance by discriminating against Plaintiff, in the terms and conditions of employment, on the basis of her sexual orientation. Id. at 6.
In the instant Motion (doe. 8) and supporting briefs (doe. 14, 20), Defendant seeks dismissal of the Complaint on multiple grounds: 1) this Court lacks subject matter jurisdiction because the Ordinance affords aggrieved individuals the right to bring actions thereunder in the Court of Common Pleas for Lackawanna County; 2) the Complaint fails to state a claim because the Ordinance protects only Scranton residents, and thus, Plaintiff, a non-Scranton resident, lacks standing;[5] and 3) in the alternative, abstention is appropriate under the Burford, Thibodaux, and Pullman doctrines. Plaintiff counters that this Court should continue to preside over this action because: 1) diversity jurisdiction under 28 U.S.C. § 1332 exists; 2) the Complaint does not fail to state a claim because despite being a non-Scranton resident, Plaintiff has standing as the term is defined under the Constitution; and 3) abstention on any basis is inappropriate because Plaintiff seeks monetary damages.[6] (See Rec. Does. 17, 23).
Taking the issues in sequence, we begin our analysis by considering the fundamental question of whether we have subject matter jurisdiction over the instant action.
Initially, we note that Article III, Section 2 of the Constitution outlines the circumstances under which federal courts have subject matter jurisdiction; it provides in relevant part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made . . . [and] to Controversies between . . . Citizens of different States. . . ." Const. Art. III, 2, cl. 1. Thus, for federal courts to have subject matter jurisdiction over civil actions, they must be able to exercise either federal question jurisdiction or diversity jurisdiction. See 28 U.S.C. 1331-1332: As Plaintiff's Complaint raises no cause of action grounded in federal law, the sole provision under which we may have jurisdiction is 28 U.S.C. § 1332, Which indicates that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and *508 costs, and is between (1) Citizens of different States. . . ." 28 U.S.C. § 1332(a).
On its face, Plaintiffs Complaints satisfies the requirements of 28 U.S.C. § 1332(a) because it alleges that "[t]he amount in controversy in this matter exceeds seventy[-]five thousand dollars ($75,-000.000)" (doe. 1, ¶ 4) and that Plaintiff is a citizen of Virginia, while Defendant is a citizen of Pennsylvania. Indeed, although Defendant challenges this Court's subject matter jurisdiction, for the purposes of this Motion, it does not challenge the veracity of the above averments. (See, e.g., Rec. Doc. 14 at 13 ("this Court, sitting only in diversity . . . ")).
Rather, citing two non-binding and unpersuasive[7] authorities (does. 14 at 6; 20 at 2-3), Defendant argues that because the Ordinance states that "the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth . . ." and a letter from the Commission to Plaintiffs counsel states that "you are hereby notified that Ms. Dolan is permitted to proceed in the Court of Common Pleas of Lackawanna County . . .," this Court lacks subject matter jurisdiction. Thus, as Plaintiff notes, Defendant essentially "argues that the ordinance trumps the United States Constitution and divests federal courts of jurisdiction." (Rec. Doc. 17 at 2).
We find Defendant's argument unpersuasive because, as a colleague from Connecticut has noted:
"In determining its own jurisdiction, a District Court of the United States must look to the sources of its power and not to acts of states which have no power to enlarge or to contract the federal jurisdiction." Grand Bahama [Petroleum Co. v. Asiatic Petroleum Corp.], 550 F.2d [1320, 1325 (2d Cir.1977)] (quoting Markham v. Newport News, 292 F.2d 711, 713 (4th Cir.1961)).
Article 3, Section 2 of the United States Constitution provides that the judicial power of the United States shall extend to controversies between citizens of different states. Congress, in 28 U.S.C. Section 1332, extended such jurisdiction to the United States District Courts. A state "door closing" statute cannot divest the district court of jurisdiction *509 when the statutory and constitutional requirements of diversity are satisfied.
Elgard Corp. v. Brennan Constr. Co., 157 F.R.D. 1, 2 (D.Conn.1994). In so concluding, Elgard also relied upon Railway Co. v. Whitton's Alministrator; 80 U.S. (13 Wall) 270, 286, 20 L.Ed. 571 (1872), which provides:
In all cases, where a general right is thus conferred, it can be enforced in any Federal court within the State having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such Federal court by any provision of State legislation that it shall only be enforced in a State court
. . . Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to State limitation.
Id. Although we are cognizant that exceptions to this principle may exist, such as the judicial recognition of exclusive jurisdiction in administrative agencies for certain periods, we think the general principle remains sound and applicable here. See MCI Telecoraras. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1109 (3d Cir.1995) (Nygaard, concurring) (collecting historic and contemporary authorities that stand for this proposition). Moreover, logic dictates that as state statutes cannot divest federal courts of jurisdiction, neither can local ordinances.
Thus, in view of the plain language of the Constitution and 28 U.S.C. § 1332, and because Defendant does not challenge Plaintiffs allegations as to the amount in controversy or citizenship of the parties, we find unpersuasive Defendant's argument that we lack subject matter jurisdiction. Accordingly, we will not dismiss Plaintiffs Complaint for lack of jurisdiction.
Next, we turn to Defendant's argument that Plaintiffs Complaint fails to state a claim because Plaintiff lacks standing. As the Supreme Court has stated,
[i]n its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a "case or controversy" between himself and the defendant within the meaning of Art. III . . . As an aspect of justiciability, the standing question is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy" as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.
Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). As Plaintiff is attempting to seek recompense for Defendant's alleged discrimination, under the Ordinance, against her, she clearly has standing under the principles outlined above.[8]
Moreover, upon consideration of Defendant's argument that the text of the Ordinance does not afford non-Scranton residents a remedy, we find it unpersuasive for several reasons. First, in contrast to the one clause in the "Purpose" section *510 upon which Defendant relies, "it is the express intent of this article to guarantee fair and equal treatment under law to all people of the City" (doe. 1-2 at 1), several other provisions in the Ordinance are more inclusive. For example, the initial clause in the "Purpose" section provides "[i]n order to assure that all persons. . . ." Id. at 1. Perhaps more significantly, those portions of the Ordinance that render discrimination in employment unlawful, and prescribe the procedure by which persons alleging discrimination may file a complaint, contain broad language, such as "such individual" and "any individual," and lack language restricting remedy to Scranton residents. (Rec. Does. 1-2 at 5; 1-3 at 2). Second, interpreting such broad language as limiting application of the Ordinance to Scranton residents would be inappropriate given the Scranton City Council's demonstrated ability to expressly exclude certain groups from the definition of "employee" (doe. 1-2 at 2), and failure to so exclude non-residents, as well as the Ordinance's provision stating that the Ordinance "shall be construed liberally . . ." (doe. 1-3 at 7). Third, we agree with Plaintiffs contention that interpreting the Ordinance as applicable to only Scranton residents would lead to absurd results, such as Scranton businesses being permitted to discriminate against non-residents who enter the city to conduct business.[9] (See Rec. Doc. 17 at 13).
As we will not dismiss Plaintiffs Complaint for failure to state a claim, we turn to consideration of whether we should abstain from exercising jurisdiction, and, thus, dismiss Plaintiffs Complaint on that basis. Prior to any discussion of the specific requirements under the .Burford, Thibodaux, and Pullman doctrines, we consider the threshold question of whether abstention is permissible under the instant circumstances.
Upon our thorough review of the parties' arguments, and the authorities cited in support thereof, we conclude that neither abstention nor imposition of a stay, sought in Defendant's Reply Brief, is appropriate under these circumstances. We so conclude, in part, because abstention "is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). As the Court of Appeals for the Third Circuit has recently reiterated:
Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or agency will have the opportunity to decide the matters at issue. The doctrine is rooted in concerns for the maintenance of the federal system and represents an extraordinary and narrow exception to the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.
Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295, 303 (3d Cir.2004) (citations and internal quotations omitted).
In our view, abstention under the instant circumstances would constitute an abrogation of our obligation to exercise jurisdiction because binding precedent demonstrates that invocation of this narrow exception is improper where only monetary relief is sought, Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 731, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), and that staying a case wherein both legal and equitable relief are sought is proper when *511 simultaneous state court proceedings are pending, Fete v. Sechrest, 90 F.3d 846, 850 (3d Cir.1996). See also Covance Labs., Inc. v. Orantes, 338 F.Supp.2d 613, 619 (D.Md.2004) (concluding that where state proceedings were also occurring, imposition of a stay reaches a proper balance of the policies favoring abstention and those favoring exercise of federal jurisdiction). In this action, no state court proceedings related hereto appear to be pending. (See, e.g., doc. 17 at 8 ("Plaintiff does not seek review of any order or procedures issued by the Scranton Commission, but instead has simply as she is entitled to do under the ordinance brought a de novo discrimination claim.")). Thus, we see no justification for abstaining or for staying the instant proceedings, in which Plaintiff seeks, inter alia, monetary damages.[10]
For all of the foregoing reasons, we will deny the Motion in its entirety.[11]
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendant's Motion to Dismiss (doc. 8) is hereby DENIED.
NOTES
[1] In the interest of completeness, we note that, in fact, a Sur-Reply was filed. (Rec. Doc. 23).
[2] Cognizant that insofar as this Memorandum and Order considers that portion of the Motion which was filed pursuant to Rule 12(b)(1), we may take into account information outside of the pleadings, we nevertheless see no reason to rely upon such information here because Defendant has presented no evidence to undermine Plaintiff's allegations that she and Defendant are citizens of different states and that the amount in controversy exceeds $75,000. In fact, Defendant's challenge to subject matter jurisdiction is a purely legal one, which can be decided based upon the allegations in Plaintiff's Complaint and the Ordinance appended thereto.
[3] Prior to December 16, 2004, no agent, officer, or employee of Defendant was aware of Plaintiff's sexual orientation. Id. at ¶ 29.
[4] A copy of the Ordinance was appended to Plaintiff's Complaint (see doc. 1-2), and thus, may be considered by this Court in our disposition of that portion of the Motion brought pursuant to Rule 12(b)(6).
[5] Defendant's Motion (doe. 8) also sought dismissal for failure to state a claim based on Plaintiff's alleged failure to exhaust administrative remedies However, the absence of argument thereto in the supporting briefs (dots. 14, 20) demonstrates that Defendant has elected not to persist in said argument. Accordingly, as to Defendant's failure to state a claim argument, we consider only whether Plaintiff has standing.
[6] Although we appreciate both parties' thorough arguments in the extensive briefing on this Motion, we see no reason to outline them in greater detail here because, as will be seen below, our analysis contains references thereto therein.
[7] Harleysville Mutual Insurance Company v. The Catastrophic Loss Trust Fund, 101 Pa. Cmwlth. 215, 515 A.2d 1039 (1986), is inapplicable here because it did not consider the issue of federal subject matter jurisdiction.
James v. International Business Machines Corp., 1991 WL 86918 (E.D.Pa. May 20, 1991), is also unpersuasive because its dicta, indicating that claims pursuant to the Pennsylvania Human Relations Act ("PHRA") may only be brought in state courts, appears to be an anomaly. See Kahn v. American Heritage Life Ins. Co., 2006 WL 1879192, at *5, 2006 U.S. Dist. LEXIS 45749, at *15-16 (E.D. Pa. June 29, 2006) (noting that "PHRA claims have been brought in other forums without jurisdictional challenge, including courts outside the Commonwealth of Pennsylvania . . . although the PHRA specifies the courts of common pleas of the Commonwealth as an allowable forum for adjudication of PHRA claims, such jurisdiction has not been found to be exclusive and would not prevent Plaintiff from bringing PHRA claims in federal or state court in Florida." (internal citations omitted)). See also Fogleman v. Mercy Hosp., 283 F.3d 561 (3d Cir.2002) (examining the propriety of the district court's grant of summary judgment on plaintiff's claims under the ADA, ADEA, and PHRA, without any suggestion that the PHRA's grant of jurisdiction to Pennsylvania state courts was exclusive or that federal courts do not have subject matter jurisdiction over PHRA claims). Indeed, as was apparently the situation in Kahn, we think that in circumstances where the requisites of diversity and personal jurisdiction are present, federal courts have jurisdiction over actions which involve only PHRA claims. 2006 WL 1879192, at *3, *4-5, 2006 U.S. Dist. LEXIS 45749, at *7-9, *14-16.
[8] We find the authorities that Defendant cites to support the opposite conclusion inapposite: Muir v. Alexander, 858 A.2d 653, 655 n. 3 (Pa. Commw. Ct.2004), noted the unsurprising conclusion that where the statute at issue defined "rcquester" as "[a] person who is a resident of the Commonwealth," a school district would not have standing to so request, and Hartman v. City of Allentown, 880 A.2d 737 (Pa.Commw.Ct.2005), held that municipalities have the authority to enact anti-discrimination statutes without considering the scope of their application.
[9] We think it highly unlikely that the City Council would wish to discourage those living outside of Scranton from supporting the city's economy.
[10] Accordingly, we need not apply the instant circumstances to the various abstention doctrines.
[11] As a matter of course, we express no opinion on the ultimate viability of Plaintiff's claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423738/ | 22 A.3d 27 (2011)
420 N.J. Super. 438
Patrick DEROSA and Chris Schaub, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
ACCREDITED HOME LENDERS, INC.; Accredited Home Lenders Holding Company; James M. Moran, Chief Executive OfficerAccredited Home Lenders, Inc.; Jeffrey Walton, President and Chief Operations Officer Accredited Home Lenders, Inc.; and LSFV Accredited Investments, L.L.C., Defendants, and
Lone Star Fund V (USLP) and Hudson Advisors, L.L.C., Defendants-Respondents.
No. A-3727-09T3.
Superior Court of New Jersey, Appellate Division.
Submitted April 12, 2011.
Decided June 14, 2011.
*30 O'Brien, Belland & Bushinsky, L.L.C., attorneys for appellants (Robert F. O'Brien, Cherry Hill, on the brief).
Archer & Greiner, P.C., and Sean M. Becker (Vinson & Elkins, L.L.P.), of the Texas bar, admitted pro hac vice, attorneys for respondents (Mr. Becker and *31 David A. Rapuano, Haddonfield, on the brief).
Before Judges CARCHMAN, WAUGH and ST. JOHN.
The opinion of the court was delivered by
CARCHMAN, P.J.A.D.
The Millville Dallas Airmotive Plant Job Loss Notification Act, N.J.S.A. 34:21-1 to -7 (the New Jersey WARN Act or the Act), generally provides that under certain conditions employees are entitled to notice, or alternatively, severance pay, in the event of a transfer or termination of operations, or a mass layoff by an employer. This appeal requires us to consider the novel question of whether the Act applies to parent and affiliated companies. We conclude that consistent with its federal analogue, The Worker Adjustment and Retraining Notification Act of 1988 (the federal WARN Act), 29 U.S.C.A. §§ 2101 to -2109, the New Jersey Act does apply to parent and affiliated companies, and in reaching this conclusion, we adopt the "five-factor" test enunciated in 20 C.F.R. § 639.3(a)(2). Accordingly, we reverse the order of the Law Division dismissing plaintiffs' complaint and remand for further proceedings.
I.
These are the relevant facts presented to the Law Division on the motion of summary judgment. Defendant Accredited Home Lenders, Inc. (Accredited) was engaged in issuing and servicing sub-prime mortgages. Its headquarters was located in San Diego, California, and it employed more than 100 people at offices located throughout the United States. According to Mark Mohan, Accredited's division manager and head of the company's Woodcliff Lake office (the office), the office transacted the company's wholesale mortgage business in the eastern United States (from Maine to Virginia, and west to Pennsylvania). The parties dispute the number of people employed in the office, and the number of employees discharged as a result of the office closure on June 4, 2008.[1]
Defendant Lone Star Fund V (USLP) (LSFV) is a private equity fund "that acquires distressed debt and equity assets including corporate, commercial real estate, single family residential and consumer debt products as well as banks and operating companies." It is organized as a limited partnership, and it has never had any employees. It is controlled by its general partner, Lone Star Partners V, L.P., which in turn is controlled by its general partner, Lone Star Management Co. V, itself controlled by its sole owner, defendant John Grayken, the chief executive officer of LSFV. Grayken "has been the primary individual responsible for formulating investment strategy for the funds. He serves as the president of all *32 the corporations that serve as general partners of each of the . . . Lone Star private equity funds. . . ."
Defendant Hudson Advisors, LLC (Hudson) was created for the purpose of managing and servicing the assets acquired by the private funds sponsored by LSFV. It is located in the same building as LSFV in Dallas, Texas, and Grayken is its sole beneficial owner.
In 2006, LSFV began investigating opportunities for an acquisition or investment in a sub-prime mortgage lender. Through its subsidiaries, LSFV acquired Accredited. The acquisition revealed a series of interlocking relationships that are relevant to the issue before us. Specifically:
1) LSFV is the parent corporation of LSFV Accredited Holdings, Inc. (LSFV Holdco); it owns a 63.7113% interest, with the remaining percentages owned by LSFV affiliates-LSFV International Finance, L.P., Hudco (Global) V, L.P., and Hudco Partners V (Americas), L.P.[2];
2) LSFV Holdco is the parent corporation of defendant LSFV Accredited Investments, LLC (LSFV Accredited);
3) Both LSFV Holdco and LSFV Accredited were created for the purpose of purchasing Accredited;
4) In October 2007, LSFV Accredited acquired Accredited Holding, which is the parent of Accredited. LSFV guaranteed the funds for the acquisition, and the stated purpose of the acquisition was for LSFV to "indirectly . . . acquire control of, and the entire equity interest in" Accredited Holding.
Effective October 12, 2007, Accredited Holding, Hudson, and LSFV, entered into an asset advisory agreement. Pursuant to the agreement, Hudson began evaluating Accredited's business, including meeting with Accredited executives and requesting a variety of information. LSFV was not a passive partner. Plaintiffs Patrick DeRosa and Chris Schaub described LSFV's presence at Accredited's sales meetings in early 2008. Mohan related requests for information he received on behalf of LSFV; he also expressed the opinion that after LSFV's purchase of the company, Accredited's senior managers were no longer "calling the shots."
A determination was made (the parties dispute by whom) to shut down much of Accredited's operations, including the office. Legal advice was obtained with respect to the shutdown, including what obligations existed under the relevant state and federal WARN Acts, and counsel advised that there were no obligations under the New Jersey WARN Act.
Michael Prushan, Hudson's director of portfolio management, started with Hudson on March 1, 2008. He was involved in evaluating Accredited's business as well as planning and implementing the shutdown. On June 4, 2008, Prushan traveled to the office to announce its closure. He was accompanied by an employee assistance advisor and a security guard.
According to Mohan, Prushan identified himself as an employee of "Lone Star," and he displayed a "Lone Star" security badge. Prushan, however, claims that he introduced himself as a Hudson employee, and when Mohan asked what Hudson was, Prushan explained that Hudson performed services for "Lone Star."
No advance notice was given of the shutdown. Employees present on-site were assembled in one location, advised of the *33 shutdown, and informed that they had one hour to pack their belongings and leave the premises. The employee assistance advisor provided them with handouts entitled "Post Trauma `Do's and Don'ts'" and "Information for Exiting Employees." Employees in the field were called with the news.
Other Accredited offices were also shut down, and its senior managers were discharged. WARN notices were provided to some of those discharged employees but not others.
Plaintiffs were among the office employees discharged without notice or severance pay. DeRosa was employed by Accredited, at the office, for approximately five years-four years between February 2002 and May 2006, and another year between June 2007 and June 4, 2008. After his termination, he was unemployed for approximately fifteen months and he received unemployment compensation for approximately ten months.
Schaub was employed by Accredited for approximately eight-and-a-half years, between December 1999 and June 4, 2008, with his last assignment in the office. After his termination, he was unemployed for approximately three months and did not apply for unemployment compensation during that period.
DeRosa, Schaub, and Mohan conceded that they never had a direct employment relationship with LSFV. They did not report to anyone at LSFV, they never received a paycheck or employee handbook or employee benefits from LSFV, and they never identified LSFV as their employer on any government documents (i.e., taxes or unemployment compensation forms).
Plaintiffs filed a putative class action against defendants, including James M. Moran, the chief executive officer of Accredited, and Jeffrey Walton, Accredited's president, alleging violations of the New Jersey WARN Act as well as the New Jersey Wage Payment Law, N.J.S.A. 34:11-2 to -33.6. Thereafter, Accredited and Accredited Holding filed for bankruptcy and were dismissed as defendants. For reasons not explained in the record, all remaining defendants with the exception of LSFV and Hudson were dismissed without prejudice, and the action proceeded against LSFV and Hudson.
On motions for summary judgment, defendants asserted that they were not subject to the Act. The motion judge declined to treat Accredited and its various affiliated corporations as a single employer and thus dismissed plaintiffs' complaint, concluding that the Act did not apply. In granting summary judgment, the trial court held that the New Jersey WARN Act's definition of "employer" should be read narrowly, as limited to direct employers, and it did not encompass parent corporations or affiliated businesses. This appeal followed.
II.
On appeal, plaintiffs contend the trial court erred in granting summary judgment to LSFV and Hudson and dismissing the New Jersey WARN Act claim asserted against them, on the ground that they could not be considered plaintiffs' "employer" as that term is defined under the Act.
A.
Our review of a summary judgment motion is de novo. We apply the same standard as the trial court, Chance v. McCann, 405 N.J.Super. 547, 563, 966 A.2d 29 (App. Div.2009), and determine whether the evidence presented, when viewed in the light most favorable to the non-moving party, is sufficient to permit a rational factfinder to resolve the disputed issues in favor of the non-moving party. R. 4:46-2(c); Brill v. *34 Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-41, 666 A.2d 146 (1995). If there is a genuine issue as to any material fact, or credibility issues are presented, summary judgment should be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540, 666 A.2d 146. On the other hand, if the evidence is "`so one-sided that one party must prevail as a matter of law,'" then summary judgment should be granted. Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986)). Where the issue in dispute involves a legal question and interpretation of a statute, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
B.
The New Jersey WARN Act is of recent vintage. It was adopted effective December 20, 2007. L. 2007, c. 212, § 1. Under certain conditions, the Act requires that employees receive notice, or alternatively severance pay, in the event of a transfer or termination of operations, or a mass layoff by an employer. N.J.S.A. 34:21-2. Specifically, the Act provides that:
If an establishment is subject to a transfer of operations or a termination of operations[3] which results, during any continuous period of not more than 30 days, in the termination of employment[4] of 50 or more full-time employees,[5] or if an employer conducts a mass layoff,[6] the employer who operates the establishment or conducts the mass layoff shall:
a. Provide, in the case of an employer who employs 100 or more full-time employees, not less than 60 days, or the period of time required pursuant to the federal "Worker Adjustment and Retraining Notification Act," 29 U.S.C. § 2101 et seq., or any amendments thereto, whichever is longer, before the first termination of employment occurs in connection with the termination or transfer of operations, or mass layoff, notification of the termination or transfer of operations or mass layoff to the Commissioner of Labor and Workforce Development, the chief elected official of the municipality where the establishment is located, each employee whose employment is to be terminated and any collective bargaining units of employees at the establishment;
*35 b. Provide to each full-time employee whose employment is terminated and to whom the employer provides less than the number of days of notification required pursuant to subsection a. of this section, severance pay equal to one week of pay for each full year of employment.. . .
c. Provide the response team with the amount of on-site work-time access to the employees of the establishment that the response team determines is necessary for the response team to carry out its responsibilities pursuant to section 5 of this act.
In determining whether a termination or transfer of operations or a mass layoff is subject to the notification requirements of this section, any terminations of employment for two or more groups at a single establishment occurring within any 90-day period, when each group has less than the number of terminations which would trigger the notification requirements of this section but the aggregate for all of the groups exceeds that number, shall be regarded as subject to the notification requirements unless the employer demonstrates that the cause of the terminations for each group is separate and distinct from the causes of the terminations for the other group or groups.
[N.J.S.A. 34:21-2.]
The required content of the notice is set forth at N.J.S.A. 34:21-3. There is a private right of action for violations of the Act, N.J.S.A. 34:21-6, which is in addition to an employee's rights under a collective bargaining agreement. N.J.S.A. 34:21-4.
The term "employer" is defined as "an individual or private business entity which employs the workforce at an establishment."[7]N.J.S.A. 34:21-1. On its face, the definition of "employer" does not include parent or affiliated corporations. Contrary to defendants' argument, however, that does not end our analysis, as the definition also does not exclude parent or affiliated corporations, provided they could be viewed as "employ[ing] the workforce at an establishment." N.J.S.A. 34:21-1.
Our objective in interpreting this statute is to determine the Legislature's intent. D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119, 927 A.2d 113 (2007). We look first to the language of the statute itself, as that is generally the best indicator of legislative intent. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195, 927 A.2d 543 (2007); Simon v. Cronecker, 189 N.J. 304, 327, 915 A.2d 489 (2007); DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005); Velazquez v. Jiminez, 172 N.J. 240, 256, 798 A.2d 51 (2002). However, where there is an ambiguity in the statutory language, we may look to extrinsic evidence to assist in our interpretation. Richardson, supra, 192 N.J. at 195-96, 927 A.2d 543; DiProspero, supra, 183 N.J. at 492-93, 874 A.2d 1039. We may "also resort to extrinsic evidence if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language." DiProspero, supra, 183 N.J. at 493, 874 A.2d 1039.
The statute must be read consistently with common sense and the legislation's fundamental purpose. Velazquez, supra, 172 N.J. at 257, 798 A.2d 51; Cnty. of Monmouth v. Wissell, 68 N.J. 35, 42-43, 342 A.2d 199 (1975). See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341-46, 117 S.Ct. 843, 846-49, 136 L.Ed.2d 808, 813-17 (1997) (interpreting definition of "employees" *36 under Title VII to include former employees because that was consistent with fundamental purpose of the statute; allowing former employees to sue for post-discharge retaliation). Moreover, because the Act is a remedial statute, contrary to the motion judge's view, it must be construed broadly. See, e.g., Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 115, 995 A.2d 1094 (2010); D'Annunzio, supra, 192 N.J. at 120, 927 A.2d 113; Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431, 650 A.2d 958 (1994).
The model for the Act was the federal WARN Act. See, e.g., Statement to [First Reprint] Assembly No. 1044 (Adopted May 22, 2006) ("All of the amendments are based on provisions of the federal `Worker Adjustment and Retraining Notification Act'"); Statement to [Second Reprint] Assembly No. 1044 (Adopted June 8, 2006) (noting that amendments to definitions of termination or transfer of operations make them consistent with the definition of "plant closing" in federal WARN Act). Indeed, the original version of the New Jersey WARN Act was conditionally vetoed by then-Governor Corzine, who recommended that it be revised to allow for notice of only sixty days to be consistent with the federal WARN Act and similar acts existing in other states. Conditional Veto Statement to Assembly Bill No. 1044 (Fourth Reprint) (2006-2007 Legislative Session).
Because the New Jersey Act was modeled after its federal counterpart, and the two statutes share the same purpose of protecting workers and communities by requiring employers to provide notice of plant closings and mass layoffs, compare Assembly Labor Committee Statement to A. 1044 (Feb. 27, 2006) with 20 C.F.R. § 639.1(a), in the absence of case law interpreting the Act, we look to federal WARN Act regulations and case law for guidance in interpreting the New Jersey WARN Act. Our Supreme Court has adopted this modality of examining related legislation in interpreting the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, which has several federal counterparts, as well as other legislative enactments. See, e.g., Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 261-67 (2010) (looking to Title VII precedents in interpreting LAD); Victor v. State, 203 N.J. 383, 4 A.3d 126 (2010) (looking to Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213, in interpreting LAD).
Defendants suggest that we eschew this analytical framework and read the Act restrictively, since the Act's definition of "employer" is comparatively less expansive than the definitions of employer set forth in the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-2(a),[8] the Wage Payment Law, N.J.S.A. 34:11-4.1(a),[9] and the LAD, N.J.S.A. 10:5-5(e).[10]*37 This is the approach adopted by the trial judge. However, the New Jersey WARN Act was not modeled after CEPA, the Wage Payment Law, or the LAD, nor does it share the same purposes as these statutes. Instead, it was modeled after and shares the same purpose as the federal WARN Act.
As previously stated, the New Jersey WARN Act defines the term "employer" as "an individual or private business entity which employs the workforce at an establishment." N.J.S.A. 34:21-1. The federal WARN Act defines the term "employer" as "any business enterprise" that employs 100 or more employees, excluding part-time employees, or 100 or more employees who in the aggregate work at least 4000 hours per week, exclusive of overtime hours. 29 U.S.C.A. § 2101(a)(1).
Neither the Act nor its federal counterpart contains language allowing for or excluding liability of parent and affiliated corporations. The issue has been addressed in the federal courts, however, which have concluded that parent and affiliated corporations may incur federal WARN Act liability. The Third Circuit has noted that, "[b]ecause a plant closure often presages a corporation's demise, leaving workers with no source of satisfaction from their employer, plaintiffs have frequently sought [federal WARN Act] damages from affiliated corporations." Pearson v. Component Tech. Corp., 247 F.3d 471, 476-77 (3d Cir.), cert. denied, 534 U.S. 950, 122 S.Ct. 345, 151 L.Ed.2d 261 (2001).
Federal regulation also supports this position. A regulation issued by the federal Department of Labor (DOL), interpreting the federal WARN Act's definition of employer, provides that:
Under existing legal rules, independent contractors and subsidiaries which are wholly or partially owned by a parent company are treated as separate employers or as a part of the parent or contracting company depending upon the degree of their independence from the parent. Some of the factors to be considered in making this determination are (i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations.
[20 C.F.R. § 639.3(a)(2).]
This regulatory definition is known as the "five-factor test."
The DOL's "supplementary information" regarding its federal WARN Act regulations explains that:
The intent of the regulatory provision relating to independent contractors and subsidiaries is not to create a special definition of these terms for WARN purposes; the definition is intended only to summarize existing law that has developed under State Corporations laws and such statutes as the NLRA, the Fair Labor Standards Act (FLSA) and the Employee Retirement Income Security Act (ERISA). The Department does not believe that there is any reason to attempt to create new law in this area especially for WARN purposes when relevant concepts of State and federal law adequately cover the issue. . . . Similarly, the regulation is not intended to foreclose any application of existing law *38 or to identify the source of legal authority for making determinations of whether related entities are separate. To the extent that existing law recognizes the joint employer doctrine . . . nothing in the regulation prevents application of that law.
[54 Fed.Reg. 16,045 (Apr. 20, 1989).]
Under the federal WARN Act, parent or affiliated corporations may incur liability. Even significant creditors of a corporation face potential liability. See, e.g., Coppola v. Bear Stearns & Co., 499 F.3d 144, 148-51 (2d Cir.2007) (noting that the test for lender liability under federal WARN Act is whether lender has become debtor's agent, partner, or alter ego; whether, at the time of plant closing, creditor was responsible for operating business as a going concern rather than acting only to protect its security interest and preserve business for liquidation or sale); Pearson, supra, 247 F.3d at 478, 491-95 (assessing creditor liability under federal WARN Act and applying the test set forth at 20 C.F.R. § 639.3(a)(2)); Adams v. Erwin Weller Co., 87 F.3d 269, 272 (8th Cir.1996) ("Only when a lender becomes so entangled with its borrower that it has assumed responsibility for the overall management of the borrower's business will the degree of control necessary to support employer responsibility under federal WARN be achieved."); Chauffeurs, Sales Drivers, Warehousemen & Helpers Union Local 572 v. Weslock Corp., 66 F.3d 241, 244 (9th Cir.1995) (holding that a secured creditor may be an employer for federal WARN Act purposes "if at the time of the plant closing or mass layoff the defendant is responsible for operating the business as a going concern"); Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. MRC Indus. Group, Inc., 541 F.Supp.2d 902, 905-10 (E.D.Mich.2008) (suggesting that defendants' actions exceeded conduct to protect an investment and were more akin to that of an employer).
The circuit courts of appeal that have addressed the issue of parent and affiliated-corporation liability have applied the "five-factor test," whereas some district courts, particularly in opinions issued prior to the circuit court opinions, have considered a multitude of tests. See, e.g., In re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 242-45 (3d Cir.2008) (applying test set forth at 20 C.F.R. § 639.3(a)(2)), cert. denied, ___ U.S. ___, 129 S.Ct. 1670, 173 L.Ed.2d 1036 (2009); Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1005-07 (9th Cir.2004) (same); Administaff Cos., Inc. v. N.Y. Joint Bd., Shirt & Leisurewear Div., Union of Needletrades, Indus. & Textile Emp. "UNITE," AFL-CIO, CLC, 337 F.3d 454, 457-58 (5th Cir.2003) (same); Pearson, supra, 247 F.3d at 478, 482-91 (same); Austen v. Catterton Partners V, LP, 709 F.Supp.2d 168, 173-78 (D.Conn. 2010) (same); Milan v. Centennial Commc'ns Corp., 500 F.Supp.2d 14, 26-28 (D.P.R.2007) (considering state corporate law, single employer theory under federal law, and federal WARN Act regulation in resolving single employer issue); Local 2-1971 of PACE Int'l Union v. Cooper, 364 F.Supp.2d 546, 564-65 (W.D.N.C.2005) (applying test set forth at 20 C.F.R. § 639.3(a)(2)); Vogt v. Greenmarine Holding, LLC, 318 F.Supp.2d 136, 140-44 (S.D.N.Y.2004) (same); Bledsoe v. Emery Worldwide Airlines, 258 F.Supp.2d 780, 786-87 (S.D.Ohio 2003) (same); UAW, Local 157 v. OEM/Erie Westland, LLC, 203 F.Supp.2d 825, 832-36 (E.D.Mich.2002) (same); United Paperworkers Int'l Union, AFL-CIO, CLC v. Alden Corrugated Container Corp., 901 F.Supp. 426, 436-39 (D.Mass.1995) (considering state corporate law, single employer theory under federal law, and WARN Act regulation in resolving single employer issue).
*39 In Pearson, supra, 247 F.3d at 487-89, the Third Circuit rejected as "manifestly unworkable" the methodology of considering and applying a multitude of tests. Instead, it held that
the most prudent course is to employ the factors listed in the Department of Labor regulations themselves. This approach not only has the virtue of simplicity. . . but also allows for the creation of a uniform standard of liability for the enforcement of a federal statute. Finally, and most importantly, the DOL factors are the best method for determining WARN Act liability because they were created with WARN Act policies in mind and, unlike traditional veil-piercing and some of the other theories, focus particularly on circumstances relevant to labor relations.
[Id. at 489-90 (citations omitted).]
The court stated,
the appropriate test to employ under the WARN Act for affiliated corporate liability is the multi-factored test promulgated by the DOL [at 20 C.F.R. § 639.3(a)(2)]. We believe that the DOL's instruction that courts apply "existing law" to questions involving intercorporate liability was not intended to undermine the force of its own regulation on the subject, but was instead intended to instruct courts that existing precedent applying other tests (such as the "integrated enterprise" test) may be useful and appropriate to resolve analogous questions arising under the WARN Act. We also observe that the regulation indicates that the listed factors are not an exhaustive list, which we interpret as a reminder that the test is one of balancing, and that, as with any balancing test, a number of circumstances not specifically enumerated may be relevant.
. . . .
We ultimately hold that because the lines separating "parents" from "lenders" are not often bright ones, the simpler approach is to apply the same test for liability regardless of the formal label the corporations have attached to their association. . . . Therefore, we take a more functional approach to determining whether or not to "pierce the veil" under WARN by focusing on the nature and degree of control possessed by one corporation over another; in so doing, however, particular weight must be accorded, where applicable, to a lack of ownership interest between corporations.
[Id. at 478.]
See also id. at 490-96.
The five-factor test set forth at 20 C.F.R. § 639.3(a)(2) is a fact-specific balancing test. No one factor is controlling, "and all factors need not be present for liability to attach." Vogt, supra, 318 F.Supp.2d at 142.
[T]he question of whether two entities constitute a "single employer" for WARN Act purposes "is ultimately an inquiry into whether . . . two nominally separate entities operated at arm's length" or whether, following an "assessment of the amount of control" exercised by one entity over another, it can be determined that two entities should be considered jointly liable for the closing and the subsequent lack of notice. [Pearson, supra, 247 F.3d at 495-96.] Accordingly, the goal of the five-factor test . . . is to determine whether [the parent or affiliated company] had become "so entangled with [the other company's] affairs so as to engender WARN Act liability," or whether the two continued to function at arm's length as separate entities. Id. at 491.
[In re APA Transport Corp., supra, 541 F.3d at 244.]
*40 We conclude that in determining single-employer status under the New Jersey WARN Act, our courts should apply the five-factor test set forth at 20 C.F.R. § 639.3(a)(2), with consideration of additional factors permissible where relevant. This test was developed specifically for federal WARN Act cases, and provides an appropriate methodology for resolving the issue of employer status. Even though adopted as an outgrowth of the federal WARN Act, we have observed that both the federal and New Jersey WARN Acts share the same purpose. Moreover, as the New Jersey Warn Act's definition of "employer" is more expansive than the federal Act's definition, compare N.J.S.A. 34:21-1 with 29 U.S.C.A. § 2101(a)(1), the Act should not be interpreted more restrictively than its federal counterpart. This is the critical error in the trial judge's reasoning.
Although application of the test is a factual question, not a legal one, Pearson, supra, 247 F.3d at 496, the inquiry must focus on whether plaintiffs have submitted sufficient evidence to create a genuine issue of material fact and survive summary judgment. Id. at 497.
C.
We now address the elements of the five-factor test. Factor one addresses whether there is common ownership while factor two addresses whether there are common directors or officers. These factors are considered less significant than the other three factors. In re APA Transport Corp., supra, 541 F.3d at 243-44; Childress, supra, 357 F.3d at 1005-06. A positive finding on these factors is not dispositive in establishing that two entities constitute a single employer. In re APA Transport Corp., supra, 541 F.3d at 243-44.
The record is limited on both factors. It does not reflect that LSFV has any direct ownership of Accredited; however, LSFV has a substantial ownership interest in the LSFV affiliated companies that own Accredited.
In considering directors or officers, we note that the parties have not provided a list of the directors and officers of any of the three companies. However, the record reflects some overlap in senior management, with Moran apparently holding senior executive positions at Accredited, Lone Star, and Hudson, and Grayken being the sole beneficial owner of Hudson and a substantial participant in all of the LSFV companies.
Factor three considers whether the parent or affiliated company exercised de facto control over the direct employer. "The core [consideration] of this factor is whether one company `was the decisionmaker responsible for the employment practice giving rise to the litigation.'" In re APA Transport Corp., supra, 541 F.3d at 245 (quoting Pearson, supra, 247 F.3d at 503-04).
Further, because the balancing of the factors is not a mechanical exercise, if the de facto exercise of control was particularly strikingfor instance, were it effectuated by "disregarding the separate legal personality of its subsidiary," Esmark, Inc. v. NLRB, 887 F.2d 739, 757 (7th Cir.1989)then liability might be warranted even in the absence of the other factors.
[Pearson, supra, 247 F.3d at 504.]
See also Austen, supra, 709 F.Supp.2d at 177 ("De facto control is perhaps the most important prong of the DOL test. . . .").
As to this factor, the record reflects that after LSFV Accredited purchased Accredited Holding, Hudson, LSFV and Accredited Holding entered into an asset advisory agreement pursuant to which Hudson provided oversight and support services to *41 Accredited. According to Mohan, during this time period, Accredited's senior management lost day-to-day control of the business. Prushan, who was employed by Hudson, was involved in evaluating Accredited's business, and in planning and implementing the shutdown of the office.
Giving plaintiff all favorable inferences, the record reflects that LSFV, through Hudson, exercised control over Accredited and ordered the closure of the office. The trial court also recognized that this presented a factual dispute that was unresolvable on summary judgment.
Factor four considers whether there exists a unity of personnel policies emanating from a common source. This factor concerns whether the companies functioned as a single entity with respect to their relationship with their employees. Examples include centralized hiring and firing, payment of wages, and personnel and benefits recordkeeping. In re APA Transport Corp., supra, 541 F.3d at 245; Pearson, supra, 247 F.3d at 499. It does not focus on whether the parent or affiliated company made the employment decision that gave rise to the WARN Act litigation. That issue is addressed under factor three. Pearson, supra, 247 F.3d at 500. But see Vogt, supra, 318 F.Supp.2d at 142-43.
The record on this issue is also limited. There is no information presented as to the personnel policies of LSFV or Hudson, and very little information as to the personnel policies of Accredited. However, under the asset advisory agreement, Accredited retained authority over hiring and firing personnel, and plaintiffs admitted that their employment was governed by Accredited's personnel policies. They never received any policies issued by LSFV, or any employee benefits provided by LSFV.
Finally, factor five considers the dependency of operations between the relevant companies. Application of this factor requires analysis of the general administrative structure of the related entities, such as, whether there are shared administrative or purchasing services, interchanges of employees or equipment, or commingled finances. In re APA Transport Corp., supra, 541 F.3d at 244 n. 9, 245; Pearson, supra, 247 F.3d at 500. Control over day-to-day operations is also indicative of interrelation of operations. Pearson, supra, 247 F.3d at 501.
The record is barren of information concerning the related companies' administrative or purchasing services, their finances, or their interchanges of employees or equipment. However, the asset advisory agreement reflects that Hudson was to provide substantial administrative services for Accredited, and according to Mohan, after LSFV Accredited purchased Accredited, Accredited's management lost day-to-day control of the company.
Applying the five-factor test, we conclude that plaintiffs have presented sufficient evidence to withstand summary judgment, particularly since their proofs as to factor three are relatively strong. However, since the record was not developed with the five-factor test in mind, we conclude that the appropriate remedy is reversal and remand to further develop the record. On remand, the trial court shall apply the five-factor test, with consideration of additional factors permissible, where relevant, to determine whether either LSFV or Hudson, or both, could be considered plaintiffs' employer. At the remand hearing, the parties may also resolve their disputes as to whether the Act applied to the office closure, including their disputes as to the number of employees in the office and the number of employees *42 discharged as a result of the office closure.[11]
D.
While we adopt the five-factor test to determine whether parent and affiliated companies may be held liable under the New Jersey WARN Act, we recognize that other tests may be advanced to supplement the primacy of the five-factor test. We acknowledge that many of the principles of the supplementary tests overlap those presented in the five-factor test, yet they are helpful in resolving the issue of identification of the employer under the Act. We caution that the other tests, which we now discuss, are supplementary to the basic analysis under the five-factor test.
The most obvious supplementary test is the common law standard for piercing the corporate veil. As advanced by the Court:
Except in cases of fraud, injustice, or the like, courts will not pierce a corporate veil. The purpose of the doctrine of piercing the corporate veil is to prevent an independent corporation from being used to defeat the ends of justice, to perpetrate fraud, to accomplish a crime, or otherwise to evade the law.
Under certain circumstances, courts may pierce the corporate veil by finding that a subsidiary was "a mere instrumentality of the parent corporation." Application of this principle depends on a finding that the parent so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent. Even in the presence of corporate dominance, liability generally is imposed only when the parent has abused the privilege of incorporation by using the subsidiary to perpetrate a fraud or injustice, or otherwise to circumvent the law.
[State, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500-01, 468 A.2d 150 (1983) (citations omitted).]
See also Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J.Super. 160, 198-200, 903 A.2d 475 (App.Div.2006), certif. denied, 189 N.J. 429, 915 A.2d 1052 (2007); OTR Assocs. v. IBC Servs., Inc., 353 N.J.Super. 48, 51-52, 801 A.2d 407 (App. Div.), certif. denied, 175 N.J. 78, 812 A.2d 1110 (2002).
There also is a test for determining whether a joint employment relationship exists for various employment-law purposes. See, e.g., Commc'ns Workers of Am. v. Atl. Cnty. Ass'n for Retarded Citizens, 250 N.J.Super. 403, 416, 594 A.2d 1348 (Ch.Div.1991) ("when two or more employers exert significant control over the same employees, that is, where they share in the determination of matters governing essential terms and conditions of employment, they are considered `joint employers' within the meaning of the NLRB"). Accord NLRB v. Browning-Ferris Indus., Inc., 691 F.2d 1117, 1123 (3d Cir.1982) ("`joint employer' concept recognizes that the business entities involved are in fact separate but that they share or co-determine those matters governing the essential terms and conditions of employment").
Additionally, there is the four-factor test for establishing a "single employer," "integrated employer" or "integrated enterprise" for various employment-law purposes, under which courts consider whether the various companies share common ownership or financial control, common management, an interrelation of operations, and centralized control *43 of labor and employment decisions. Applying this test, no single factor is dispositive, but the factor examining control of labor relations, and particularly control over the employment decision at issue, are deemed the most significant factor. See, e.g., Nesbit v. Gears Unltd., Inc., 347 F.3d 72, 84-85 (3d Cir.2003), cert. denied, 541 U.S. 959, 124 S.Ct. 1714, 158 L.Ed.2d 400 (2004); Pearson, supra, 247 F.3d at 485-86; Hukill v. Auto Care, Inc., 192 F.3d 437, 442 (4th Cir.1999), cert. denied, 529 U.S. 1116, 120 S.Ct. 1978, 146 L.Ed.2d 806 (2000); Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir.1997); Esmark, supra, 887 F.2d at 753.
As we have noted, the principles informing these various tests may prove helpful in determining the ultimate issue in dispute.
III.
Finally, we reject defendants' argument that the claims against them are not ripe because, even if they could be held liable as plaintiffs' employer, their liability would be secondary and premised upon Accredited's failure to comply with its obligations under the Act. See Mulford v. Computer Leasing, Inc., 334 N.J.Super. 385, 399, 759 A.2d 887 (Law Div.1999) (observing that under the Wage Payment Law, liability of directors and officers was secondary to corporation's liability "so that their personal liability only comes into play to the extent [the corporation] does not pay its judgment"). They note that plaintiffs have reached a partial settlement with Accredited, and that their liability would only occur should Accredited fail to make plaintiffs whole.
This argument is without merit. If LSFV or Hudson, or both, are held liable under the New Jersey WARN Act as plaintiffs' employer, their liability would be direct and primary, not secondary. Liability would be imposed based upon their own actionshutting down the officeand inactionnot providing notice or severance payand not those of Accredited.
IV.
We conclude that the New Jersey WARN Act must be read consistently with the federal WARN Act, and in determining the issue of whether a parent of affiliated company is the employer under the New Jersey WARN Act, the trial court must apply the DOL's five-factor test that we have identified. Accordingly, we reverse and remand for further proceedings in the Law Division consistent with this opinion.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
NOTES
[1] This issue is irrelevant to the issue before us since it relates to the question of whether the New Jersey WARN Act was violated, and not whether the parent company or affiliates may be liable under the Act. Despite defendant's argument that the Act did not apply to the office closure because Accredited employed an insufficient number of full-time employees in the office, and it discharged an insufficient number of full-time employees as a result of the office closure, this issue could not be resolved on summary judgment, as there were material issues of fact in dispute. For the purposes of this appeal, we accept plaintiffs' contention that at least sixty full-time employees were discharged as a result of the June 4, 2008, office closure, which would bring the closure within the ambit of the Act. N.J.S.A. 34:21-2. By contrast, defendants assert that there were only forty-six employees, and only thirty-five were discharged. Since this argument cannot be resolved in the present appeal, we do not address it further.
[2] The affidavit of Marc Lipshy, the vice president of LSFV, states that LSFV owns a 62.7% share of LSFV Holdco, whereas the chart attached to the affidavit states that LSFV owns a 63.7113% interest.
[3] "`Termination of operations' means the permanent or temporary shutdown of a single establishment, or of one or more facilities or operating units within a single establishment. . . ." N.J.S.A. 34:21-1. A "facility means a building." N.J.S.A. 34:21-1. An "`operating unit'" is "an organizationally distinct product, operation, or specific work function within or across facilities at a single establishment." N.J.S.A. 34:21-1.
[4] "`Termination of employment' means the layoff of an employee without a commitment to reinstate the employee to his previous employment within six months of the layoff. . . ." N.J.S.A. 34:21-1.
[5] "`Full-time employee' means an employee who is not a part-time employee." N.J.S.A. 34:21-1. "`Part-time employee'" is defined as "an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than six of the 12 months preceding the date on which notice is required pursuant to this act." N.J.S.A. 34:21-1.
[6] "Mass layoff" is defined as
a reduction in force which is not the result of a transfer or termination of operations and which results in the termination of employment at an establishment during any 30-day period for 500 or more full-time employees or for 50 or more of the full-time employees representing one third or more of the full-time employees at the establishment.
[N.J.S.A. 34:21-1.]
[7] The term "establishment" is defined as "a single place of employment which has been operated by an employer for a period longer than three years. . . . `Establishment' may be a single location or a group of contiguous locations. . . ." N.J.S.A. 34:21-1.
[8] Under CEPA, an "employer" is defined as "any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer's consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof." N.J.S.A. 34:19-2(a).
[9] Under the Wage Payment Law, an "employer" is defined as "any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person in this State," and "[f]or the purposes of [the] act the officers of a corporation and any agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation." N.J.S.A. 34:11-4.1(a).
[10] Under the LAD, an "employer" is defined as including all persons as defined at N.J.S.A. 10:5-5(a) ("one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and fiduciaries"), unless otherwise specifically exempt, "and includes the State, any political or civil subdivision thereof, and all public officers, agencies, boards or bodies." N.J.S.A. 10:5-5(e).
[11] We recognize that these issues may require discovery and testimony and the trial judge should not preclude the parties from such, if required. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423755/ | 500 F.Supp.2d 1143 (2007)
ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff,
v.
VILLAGE OF HOBART, Defendant.
No. 06-C-1302.
United States District Court, E.D. Wisconsin.
June 22, 2007.
*1144 Amy C. Hertel, Mary J. Streitz, Vernle C. Durocher, Dorsey & Whitney LLP, Minneapolis, MN, James R. Bittorf, Rebecca M. Webster, Oneida Law Office, Oneida, WI, for Plaintiff.
Paul G. Kent, Anderson & Kent SC, Madison, WI, William S. Woodward, Hanaway Ross SC, Green Bay, WI, for Defendant.
MEMORANDUM DECISION AND ORDER
GRIESBACH, District Judge.
On December 22, 2006, the Oneida Tribe of Indians of Wisconsin ("the Tribe") filed this action against the Village of Hobart ("the Village"), Wisconsin, for declaratory and injunctive relief. The Tribe seeks a determination that property it recently purchased within the original boundaries of its reservation is not subject to state laws that authorize the Village to impose taxes and special assessments on property that falls within its boundaries. The Tribe also seeks injunctive relief in the form of an order directing the Village to refund the more than $1.3 million in assessments paid by the Tribe for improvements already made to the property and to enjoin the Village from any future attempt to assess tribal land within the reservation boundaries for any additional improvements.
In response to the Tribe's lawsuit, the Village filed an answer in which it denied that the Tribe is entitled to the relief it seeks. The Village also filed a counterclaim seeking a declaration that the property acquired by the Tribe is subject to land use regulation, condemnation, assessment and taxation under state law. In addition, the Village's counterclaim seeks an injunction directing the Tribe to pay all unpaid taxes and assessments relating to the *1145 property, which for calendar year 2006 are alleged to amount to more than $200,000.
The case is presently before the Court, on the Tribe's motion to dismiss the Village's counterclaim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the Court lacks subject matter jurisdiction over the counterclaim because the Tribe is immune from suit. For the reasons set forth below, the Tribe's motion will be granted in part and denied in part.
BACKGROUND
The Oneida Tribe of Indians of Wisconsin is a federally-recognized Indian tribe exercising powers of self-governance and governmental jurisdiction over the Oneida Reservation. (Hughes Decl. ¶ 2.) The Village of Hobart is a municipal corporation located in whole or in part within the original boundaries, of the Oneida Reservation. In 1984, the Village designated approximately 490 acres of land in the southeast portion of the Village for an industrial park. In the years that followed, the Village authorized several projects to add infrastructure to the industrial park, including sewer, water, and gas lines, and roadways. (Compl.¶ 19.) In separate transactions in 2000 and 2001, the Tribe purchased approximately 372 acres of the 490 acres of the area the Village had designated as an industrial park. (Compl. ¶ 19-21.) Shortly thereafter, the Village passed a resolution to extend one of the streets in the industrial park, O'Hare Boulevard, through the Tribe's newly acquired property. The project, known as the O'Hare Boulevard Project, called for the extension of the road, along with sewer, water, curb and gutter, street lights and electric lines, and was to be paid by special assessments on the properties deemed benefited by the Village. (Compl. ¶ 22.) The Tribe objected to the project and informed the Village of its objection. (Id. ¶ 27.) Despite the Tribe's objection, the Village went ahead with the project and has collected over $1.3 million in special assessments from the Tribe for the O'Hare Boulevard Project since 2001. (Id. ¶ 29.)
In 2006, the Tribe purchased an additional 17.4 acres of property, known as the Forest Road Property, within the boundaries of its reservation in northern Hobart. The previous owner of the Forest Road Property had discussed with the Village a possible residential development involving seventeen residential lots and an extension of water and sewer lines through the property. (Id. ¶ 35.) Following its purchase of the Forest Road Property, however, the Tribe notified the Village that it did not intend to develop it. Despite the changes in ownership and intended use of the property, the Village has announced plans to initiate condemnation proceedings to obtain easements over the Forest Road Property for water and sewer upgrades. It was apparently at that point that the Tribe commenced this action.
ANALYSIS
Indian tribes in the United States enjoy the common-law immunity from suit traditionally afforded to sovereign powers. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Sovereign immunity bars not only lawsuits seeking money damages from an Indian tribe, but also claims for declaratory and injunctive relief. Id. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. Id.; Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). The Tribe argues that because it has not waived its sovereign immunity, and Congress has not abrogated it, the Village's counterclaim must be dismissed. *1146 The Village does not dispute the Tribe's assertion that as a federally-recognized Indian tribe, it is, in general, immune from suit. Likewise, the Village does not claim that it has received Congressional authorization to assert its counterclaim against the Tribe. Instead, the Village argues that the Tribe has waived its immunity to the Village's counterclaim by filing its own action against the Village. More specifically, the Village argues that under the doctrine of recoupment, the Tribe has waived its immunity from counterclaims that arise out of the same transaction or occurrence that is the subject matter of the action brought by the Tribe. Since its counterclaim arises out of the same subject matter as the Tribe's action and seeks relief that is similar in kind and nature, the Village contends that the Tribe has waived its immunity to this limited extent and its motion to dismiss should be denied.
The doctrine of recoupment on which the Village relies is essentially an equitable doctrine that allows a party to assert a claim that is otherwise barred as a set-off against a claim brought by the opposing party. The doctrine appears to have its origin in Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.E d. 1421 (1935), a tax case in which the executor of an estate was allowed to assert a claim that he had overpaid the estate tax as a set-off in an action challenging the government's income tax deficiency claim against the estate, even though the estate's overpayment claim was barred by the statute of limitations. Under the facts of the case, the Court held that recoupment of the overpayment was "in the nature of a defense arising out of some feature of the transaction upon which the plaintiffs action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself is timely." Id. at 262, 55 S.Ct. 695.
Several courts, most notably, the Tenth Circuit, have held that the doctrine of recoupment can also operate as a limited waiver of tribal sovereign immunity in cases where an Indian tribe sues another party. In Berrey v. Asarco, Inc., 439 F.3d 636 (10th Cir.2006), for example, the court held that tribal sovereign immunity was not a bar to a counterclaim for commonlaw contribution and indemnity in an action brought by an Indian tribe to recover damages from a mining company for environmental contamination of its lands. The defendant mining company claimed that the Tribe had participated in the activities that allegedly caused the contamination by selling the debris from the mining processes for use as road base, surface material and railroad ballast and, thus, should share in any liability it had. Id. at 640. Relying on Bull v. United States, and its previous decision in Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir.1982), the court held that "when the sovereign sues it waives immunity as to claims of the defendant which assert matters in recoupmentarising out of the same transaction or occurrence which is the subject matter of the government's suit, and to the extent of defeating the government's claim but not to the extent of a judgment against the government which is affirmative in the sense of involving relief different in kind or nature to that sought by the government or in the sense of exceeding the amount of the government's claims." 439 F.3d at 644.
The Berrey court adopted a threeprong test to determine whether a defendant's claim constituted a claim of recoupment. A claim of recoupment must "(1) arise from the same transaction or occurrence as the plaintiffs suit; (2) seek relief of the same kind or nature as the plaintiffs suit; and (3) seek an amount not in excess of the plaintiffs claim." Id. at 645. *1147 The mining company's claims for contribution and indemnity, the Berrey court concluded, met this test. They arose out of the same transaction or occurrence and, like the Tribe's claims, sought monetary relief. Finally, as to the third prong of the test, the court noted that the claims did not seek an amount in excess of the Tribe's claim, since "[c]laims for contribution and indemnity, by their very nature, are limited to the amount of any judgment in favor of the injured party." Id. at 646. The court therefore concluded that the defendant's counterclaims were not barred by sovereign immunity.
The doctrine of recoupment has also been applied to overcome the defense of tribal sovereign immunity by the Eighth Circuit. In Rosebud Sioux Tribe v. Val-U Constr. Co. of South Dakota, Inc., 50 F.3d 560 (8th Cir.1995)., the court held that a defendant contractor was not barred from asserting a counterclaim for breach of contract in a lawsuit commenced by the Tribe. for breach of the same contract. "When a tribe brings a lawsuit," the court noted, "it does not waive immunity for counterclaims . . . except for matters asserted in recoupment." Id. at 562 (citations omitted). Citing the Tenth Circuit's decision in Jicarilla, the court continued, "[r]ecoupment is a defensive action that operates to diminish the plaintiffs recovery rather than to assert affirmative relief." Id.
Several district courts have also recognized the doctrine of recoupment as an exception to the bar otherwise created by sovereign immunity. See Wyandotte Nation v. Kansas City, 200 F.Supp.2d 1279, 1285 (D.Kan.2002) ("Equitable recoupment is an exception to the doctrine of sovereign immunity which recognizes that by bringing a claim, a state or tribe necessarily waives immunity for matters `arising out of the same transaction or occurrence' which is the subject matter of the suit, to the extent the counterclaims do not seek relief `different in kind or nature' or `exceeding the amount' of the relief sought by the state or tribe.") (quoting Jicarilla, 687 F.2d at 1344); Oneida Nation of New York v. New York, 194 F.Supp.2d 104, 136 (N.D.N.Y.2002) ("However, it is well established that when the United States or an Indian tribe initiates a lawsuit, a defendant may assert counterclaims that sound in recoupment even absent a statutory waiver of immunity."); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F.Supp.2d 313, 359 (N.D.N.Y. 2003) (same). And while the doctrine of recoupment, as originally applied, operated to allow a defendant to off-set his liability on the plaintiffs claim by the amount of his otherwise barred claim, see, e.g. Bull, 55 S.Ct. at 700-01, several cases have also applied the doctrine to allow counterclaims for declaratory relief. See Wyandotte, 200 F.Supp.2d at 1285; and Oneida Nation, 194 F.Supp.2d at 137.
It is in both ways that the Village argues the doctrine applies here. The Village contends that by seeking declaratory relief, the Tribe has waived its immunity to the Villages's claim for declaratory relief regarding the same matter. And by seeking injunctive relief directing the Village to reimburse the Tribe for previously paid assessments and to cease efforts to assess tribal property in the future, the Tribe has waived its immunity to the Village's claim for past and future assessments. Thus, the Village concludes, neither claim is barred and the Tribe's motion to dismiss should therefore be denied.
The Tribe, on the other hand, denies that it has waived its immunity as to either claim. It notes that in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, the Supreme Court explicitly rejected the argument that by filing a lawsuit an Indian tribe waives its immunity to potential counterclaims of *1148 the defendant. In Citizen Band Potawatomi, the Tribe filed suit to enjoin the assessment of the State's tax on sale of cigarettes on tribal land. The State counterclaimed seeking to enforce its $2.7 million claim against the Tribe for taxes due on past sales and to enjoin the Potawatomis from selling cigarettes in the future without collecting and remitting state taxes on those sales. The State argued that to the extent its counterclaim was compulsory, the Tribe waived its immunity by seeking an injunction against the assessment. Noting that it had rejected the same contention over a half-century earlier in United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 511-512, 60 S.Ct. 653, 84 L.Ed. 894 (1940), the Court stated "a tribe does not waive its sovereign immunity from actions that could not otherwise be brought against it merely because those actions were pleaded in a counterclaim to an action filed by the tribe." Id. at 509, 60 S.Ct. 653. The Tribe argues here that Citizen Band constitutes an explicit rejection of the recoupment doctrine. Thus, it contends, the Village's reliance on that doctrine is fatally flawed. In light of Citizen Band and in the absence of any Seventh Circuit authority on the issue, the Tribe argues that reliance on the doctrine of recoupment to overcome its defense of sovereign immunity would be clear error.
Alternatively, the Tribe argues that even if this Court were to conclude that the doctrine of recoupment constitutes a lawful exception to the defense of sovereign immunity, it has no application to the Village's claim for injunctive relief. The Village's request for an order directing the Tribe to pay overdue assessments, the Tribe notes, does not constitute a recoupment claim but is instead indistinguishable from Oklahoma's attempt to collect its cigarette sales tax assessment for past sales in Citizen Band. Unlike the overpayment of taxes in Bull v. United States or the contribution claim in Berry, the Village's claim for overdue assessments would not simply off-set the amount due and owing on the Tribe's claim. Instead, it constitutes a separate and independent claim for affirmative relief in favor of the Village. The Tribe thus argues that even if the doctrine of recoupment could overcome tribal immunity, it has no application to the Village's claim for injunctive relief.
The Court finds persuasive the Tribe's alternative argument with respect to the Village's claim for injunctive relief, which is really a claim for money damages. Whether or not the doctrine of recoupment is a lawful exception to tribal immunity, the Village's claim for the unpaid assessments on the Tribe's property does not fit within that exception as other court's have defined it. It is not a set-off against the claim that the Tribe has asserted against the Village. If the Village prevails on its claim that the tribal property at issue is subject to assessment for taxes and improvements, the Tribe's request for reimbursement of the $1.3 million it has paid in special assessments will be denied and the Village will owe the Tribe nothing. Were the Village's counterclaim for injunctive relief to remain in the case, the Village would then be entitled to a judgment which would amount to an affirmative award of more than $200,000 in damages. If, on the other hand, the Tribe prevails, the Village would have to reimburse the Tribe the full $1.3 million the Tribe has paid in special assessments without any reduction for the amount the Village asserts is due and owing. Thus, the relief sought by the Village in its counterclaim for injunctive relief does not meet the third prong of the test for recoupment set out in Berrey. It is not a set-off against the Tribe's claim, but rather an amount separate from, and in excess of, the plaintiffs claim. It follows that the Village's *1149 counterclaim for injunctive relief is barred and must be dismissed.[1]
The same conclusion does not follow, however, with respect to the Village's counterclaim for declaratory relief. The relief sought by the Village in its request for declaratory relief is the mirror image of what the Tribe seeks. The Tribe has asked the Court to determine that the land it purchased is not subject to state laws authorizing a municipal government to assess property within its boundaries for taxes and public improvements; the Village asks the Court determine that the Tribe's property is subject to such laws. The statute under which the Tribe seeks such relief, 28 U.S.C. § 2201, authorizes the court to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." By invoking the jurisdiction of the Court to "declare the rights and other legal relations of the parties," the Tribe has expressly waived its immunity from suit as to that issue.
In Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir.1995), the Eighth Circuit addressed this issue in the context of a quiet title action brought by an Indian tribe. The district court found against the Tribe and determined the title resided with the counterclaiming defendants. On appeal, the Tribe argued the district court lacked jurisdiction over the counterclaim because it did not waive its immunity. The Eighth Circuit rejected the Tribe's argument that it had not waived its immunity, stating:
. . . by initiating this lawsuit, the Tribe "necessarily consents to the court's jurisdiction to determine the claims brought adversely to it." F. Cohen, Handbook of Federal Indian Law 324 (1982); see also United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir.1981). We will not transmogrify the doctrine of tribal immunity into one which dictates that the tribe never loses a lawsuit. Oregon, 657 F.2d at 1014. When the Tribe filed this suit, it consented to and assumed the risk of the court determining that the Tribe did not have title to the disputed tracts. Moreover, requesting equitable relief from the federal district court constitutes an appeal to the sound discretion of the court; that a tribe is the plaintiff is immaterial. Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1333 (10th Cir.1982). By requesting equitable relief, the Tribe consented to the district court exercising its equitable discretion to resolve the status of the disputed lands. To hold that the district court could exercise its discretion to quiet title in favor of the plaintiff (the Tribe) but not the defendant (Rupp and Henderson) would be anomalous and contrary to the court's broad equitable powers.
45 F.3d at 1245[2]; see also Wyandotte, 200 F.Supp.2d at 1285 ("[B]y asking the court *1150 to quiet title, plaintiff necessarily submits for the court's consideration the question of whether defendants have title to the land. This Court may not award the relief plaintiff seeks-a declaratory judgment quieting title in the tribe-without also determining the quality of title held by defendants the Modeers.").
Likewise in this case. By invoking the jurisdiction of the Court to determine the rights of the respective parties over the land in question, the Tribe has expressly waived its immunity from the Village's claim for a determination in its favor on the same issue. To hold otherwise would "be anomalous and contrary to the court's broad equitable powers." Rupp, 45 F.3d at 1245. Neither logic nor the law compel such a result.[3] The Tribe's motion to dismiss will therefore be denied as to the Village's claim for declaratory relief.
ORDER
For the reasons set forth above, the Tribe's motion to dismiss the Village's counterclaim is granted in part and denied in part. The motion to dismiss is granted as to the Village's claim for injunctive relief lief. It is denied as to the Village's claim for declaratory relief.
NOTES
[1] The fact that the Tribe is immune from the Village's counterclaim for the unpaid assessments does not leave the Village without a remedy in the eve it ultimately prevails on the merits. Unpaid special assessments become a lien on the property against which they are levied and can be collected through foreclosure proceedings. See Wis. Stat. §§ 66.0703(13), 74.01(3), and 75.19.
[2] The Rupp court also held that the Tribe had waived its immunity from the damage claims of the defendants. But this holding was based on the fact that the Tribe not only filed a quiet title action against the defendants, but "affirmatively requested the district court to order the defendants to assert any claims in the disputed lands they possessed against the Tribe." 45 F.3d at 1244. No such request was made here.
[3] The Tribe also argues that the Village would suffer no harm if its counterclaim for declaratory relief were dismissed since the Village's counterclaim is "virtually identical" to the Tribe's claim. (Reply Br. at 4.) In essence, the Tribe claims that the Village's claim for declaratory relief is redundant. At argument, however, the Village noted that it has been seeking a judicial resolution of its dispute with the Tribe for several years. Its previously-filed state court action has now been dismissed in response to the Tribe's lawsuit, and the Village fears voluntary dismissal of this action by the Tribe at a later date could further delay its efforts to finally resolve the matter if its counterclaim is dismissed at this stage. There is some support for the Tribe's position that the Village's counterclaim for declaratory relief should be dismissed as redundant, especially since the Federal Rules of Civil Procedure now limit the right of a plaintiff to voluntarily dismiss an action once the defendant has filed an answer. See Fed. R.Civ.P. 41(a); Scruggs v. Casco Corp. 32 "F.Supp. 625 (D.Conn.1940). But the majority rule is to the contrary, since it is often difficult to determine whether a declaratory judgment counterclaim really is redundant prior to trial. 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1406, at 34 (1990). For this reason, and to insure resolution of the dispute is not delayed, the better policy is to allow the counterclaim to proceed. If, as the Tribe's argument assumes, the counterclaim for declaratory relief is identical to the Tribe's own claim, allowing the Village to proceed on its claim for declaratory relief would not be an affront to the Tribe's sovereignty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423761/ | 500 F.Supp.2d 1017 (2007)
Melvin GENENBACHER, and Patricia Genenbacher, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CENTURYTEL FIBER COMPANY II, LLC, d/b/a/ LightCore, A CenturyTel Company, Defendant.
No. 06-3064.
United States District Court, C.D. Illinois, Springfield Division.
May 17, 2007.
*1018 Christopher D. Schuering, Russell R. Goehl, Goehl Schuering & Cassens, Quincy, IL, Robert E. Williams, Terrence Buehler, Buehler & Williams, Ryan F. Stephan, Touhy & Touhy Ltd., Chicago, IL, for Plaintiffs.
David P. Stoeberl, Carmody Macdonald PC, Roger K. Heidenreich, Sonnenschein Nath & Rosenthal, ST. Louis, MO, for Defendant.
OPINION
SCOTT, District Judge.
This matter comes before the Court on Defendant CenturyTel Fiber Company II, LLC, d/b/a LightCore, a CenturyTel Company's (LightCore) Motion to Dismiss (d/e 6). The Court previously denied class certification. Opinion entered April 3, 2007 (d/e 20). Therefore, only the individual claims of Plaintiffs Melvin and Patricia Genenbacher are now before the Court. The Genenbachers allege that Digital Teleport, Inc. (DTI) tortiously installed and operated an underground network of fiber optic cable (Network) on their property without proper authority. They allege that LightCore is a successor in interest to DTI. LightCore asks the Court to dismiss the claims because LightCore bought DTI's assets, including the Network, through a bankruptcy sale free and clear of all such claims.
For the reasons set forth below, the Motion to Dismiss is ALLOWED in part. The Genenbachers' claims based on the installation and operation of the Network accrued against DTI at the time that the Network was installed on their property. Their only recourse for those claims is through DTI's bankruptcy proceeding; they have no claims against LightCore based on these theories. The Genenbachers, however, also allege that LightCore's personnel have subsequently come onto *1019 their property without permission. These entries may constitute separate trespasses for which the Genenbachers are entitled to recover damages, and, depending on the circumstances, may entitle the Genenbachers to declaratory relief. These claims are not dismissed.
STATEMENT OF FACTS
DTI was formed in 1989 to construct and operate the Network over a five-state area in the central United States, including Illinois. According to the Genenbachers, DTI placed cable across their property without their permission or any other legal authority. The Genenbachers allege that DTI may have contracted with public utilities such as SBC/Ameritech to use their easements to bury fiber optic cable for the Network. The Genenbachers allege that these utilities did not have the authority to grant permission to install the Network under their property. Notice of Removal (d/e 1), attached Complaint, ¶¶ 16-19.
In 2003, DTI was in bankruptcy. CenturyTel, Inc. (CenturyTel), bought the assets of DTI in a bankruptcy sale free and clear of all liens and claims. Memorandum in Support of Defendant CenturyTel Fiber Company II, LLC's Motion to Dismiss (d/e 7) (LightCore Memorandum to Dismiss), Exhibit 1, Order Approving Sale; 11 U.S.C. § 363. CenturyTel then formed LightCore to operate the Network. The Genenbachers allege that LightCore continues to wrongfully maintain and operate the Network in violation of their rights. The Genenbachers allege that LightCore's personnel have come onto their property wrongfully to maintain the Network. Complaint, ¶ 23.
The Genenbachers bring three claims against LightCore. Count I asserts a claim for trespass. Count II asserts a claim for unjust enrichment. Count III asks for a declaratory judgment that LightCore has no valid easement or other right to occupy their land, and cannot exercise any dominion or control over their land without their consent or a decree of condemnation. LightCore asks the Court to dismiss the claims on the grounds that the claims accrued before LightCore purchased the assets from DTI, and so, Light-Core bought the assets free and clear of the Genenbachers' claims. The Genenbachers respond that LightCore's continuing occupancy and use of their property is a separate, distinct tort that arises every day that LightCore continues its wrongful conduct. The Genenbachers argue that LightCore is, therefore, liable for this continuing tortious conduct that occurred after the bankruptcy sale.
ANALYSIS
For purposes of this Motion, the Court must accept as true all of the Genenbachers' well-pleaded factual allegations contained in their Complaint and draw all inferences in the light most favorable to them. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir.1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir.1996). In addition, the Court can consider matters of public record, such as the bankruptcy court file from DTI's bankruptcy. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994). The Genenbachers' Complaint should not be dismissed unless it appears beyond doubt that they can prove no set of facts that would entitle them to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996).
The bankruptcy sale of DTI's assets to LightCore free and clear of liens and interests means that LightCore took ownership of the Network free of all claims that arose prior to the sale. 11 U.S.C. § 363. To state a claim, therefore, the Genenbachers' claim must have accrued after the sale.
*1020 The nature of the Genenbachers' claim and when it accrues is determined by state law. The Illinois Courts of Appeals have issued conflicting opinions concerning when a cause of action accrues for wrongful construction of underground structures, such as the Network, under the property of another. Two courts have held that the existence of the underground structure is a continuing action that results in a new cause of action each day that the structure exists on the property. Rosenthal v. City of Crystal Lake, 171 Ill.App.3d 428, 121 Ill.Dec. 869, 525 N.E.2d 1176, 1181 (1988); Lake Shore Bldg. Co. v. City of Chicago, 207 Ill.App. 244, 1917 WL 2670, at *2 (1917). Another held that the construction of the structure constituted the wrongful act, and the cause of action accrued at the time of construction. Lincoln-Way Community High School Dist. 210 v. Village of Frankfort, 51 Ill.App.3d 602, 9 Ill.Dec. 884, 367 N.E.2d 318, 324 (1977).
This Court must apply the rule that it believes the Illinois Supreme Court would adopt if it were presented with this question. In a slightly different context, the Illinois Supreme Court looked to the nature of the tortfeasor's actions and the injury caused by those actions. Vette v. Sanitary Dist. Of Chicago, 260 Ill. 432, 438, 103 N.E. 241, 243 (1913). The Vette case arose from defendant sanitary district's diversion of water into the Illinois River. As a result, the plaintiff's bottom land along the Illinois River was flooded. The flooding ruined the land for agricultural purposes and destroyed valuable timber. Id., 260 Ill. at 435, 103 N.E. at 242. The plaintiff brought the suit eleven years after the flooding began, and the defendant raised the statute of limitations as a defense.
The Supreme Court in Vette held that if a permanent structure constructed by a tortfeasor necessarily causes injury to another's property, then: (1) the injury is permanent, (2) "damages for all the injury sustained must be recovered in one suit," and (3) the cause of action accrues at the construction and commencement of the operation of the structure. Vette, 260 Ill. at 438, 103 N.E. at 243.
In light of the Illinois Supreme Court's analysis in Vette, this Court believes that the Illinois Supreme Court would find that DTI's construction of the cable Network under the Genenbachers' property created a permanent structure and that any injury to the Genenbachers' property was necessarily caused by the Network's continued existence and operation. As such, the Illinois Supreme Court would hold that the Genenbachers' claim was one for a permanent injury that arose at the time that DTI installed and began operating the Network. Vette, 260 Ill. at 438, 103 N.E. at 243; see also Kurtz v. Logan County, 158 Ill.App.3d 715, 110 Ill.Dec. 417, 511 N.E.2d 252, 254 (1987).[1] CenturyTel, therefore, bought the Network free and clear of all of DTI's creditors' claims, including the Genenbachers' claims. 11 U.S.C. § 363. The Genenbachers' recourse is the same as all of DTI's other creditors in DTI's bankruptcy proceeding. They have no claim against LightCore based on the ownership and operation of the Network.
The Vette Court also distinguished permanent injuries caused by a structure from intermittent injuries that may occasionally occur. These intermittent or temporary *1021 injuries may give rise to separate causes of action for the particular injury that resulted from the intermittent act. Vette, 260 Ill. at 436-37, 103 N.E. at 243. In this case, the Complaint alleges that LightCore's personnel have, on occasion, wrongfully entered onto the Genenbachers' property to maintain the Network. Complaint, ¶ 23. If LightCore's personnel wrongfully entered the Genenbachers' property, then the Genenbachers may have a cause of action for injuries caused by these intermittent trespasses, and may, depending on the circumstances, be entitled to some of the requested declaratory relief regarding possible future trespasses. See Peeler, 447 F.3d at 993-94. The Genenbachers' claims for these trespasses are not dismissed.
THEREFORE, Defendant CenturyTel Fiber Company II, LLC, d/b/a LightCore, a CenturyTel Company's Motion to Dismiss (d/e 6) is ALLOWED in part. The claims based on the installation and operation of the Network are dismissed. The Genenbachers' claims based on the Defendant LightCore's personnel coming onto their property without permission after CenturyTel acquired the Network are not dismissed. LightCore is directed to file an answer to these remaining claims by June 15, 2007.
IT IS THEREFORE SO ORDERED.
NOTES
[1] This analysis is also consistent with the laws of other states that have addressed this issue. See Peeler v. MCI, Inc., 447 F.3d 992, 993 (7th Cir.2006); International Paper Company v. MCI WorldCom Network Services, Inc., 442 F.3d 633, 636 (8th Cir.2006); West v. Worldcom, Inc., 2007 WL 485233, at *3 (S.D.N.Y. 2007); In re WorldCom, Inc., 320 B.R. 772, 781 (Bkrtcy.S.D.N.Y.2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423765/ | 14 A.3d 284 (2011)
300 Conn. 254
HARBOUR POINTE, LLC
v.
HARBOUR LANDING CONDOMINIUM ASSOCIATION, INC., et al.
Nos. 18566, 18567.
Supreme Court of Connecticut.
Argued September 22, 2010.
Decided February 22, 2011.
*285 Richard J. Buturla, with whom were Brian A. Lema and Anthony V. Avallone, Milford, for the appellants (named defendant et al.).
Richard E. Castiglioni, with whom, on the brief, were Jonathan J. Kelson, Stamford, and Paul A. Sobel, Bridgeport, for the appellee (plaintiff).
ROGERS, C.J., and PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.
McLACHLAN, J.
This appeal involves the proper interpretation of the declaration[1] for Harbour *286 Landing, an expandable condominium[2] (condominium) created pursuant to the Condominium Act of 1976 (act), General Statutes § 47-68a et seq. The defendants, Harbour Landing Condominium Association, Inc. (association)[3] and its president, David Potter, appeal[4] from the trial court's judgment in favor of the plaintiff, Harbour Pointe, LLC (Harbour Pointe). The defendants claim that the trial court improperly concluded that the declaration grants Harbour Pointe access and utility easements over the condominium property. The dispositive issue in this appeal is whether the declaration clearly and unambiguously provides that easements are terminable only if the condominium adds certain properties. We conclude that the declaration does so provide, and, accordingly, we affirm the judgment of the trial court.
The record reveals the following facts. The declaration for the condominium, which was recorded in the New Haven land records by Harbour Landing Development Corporation (declarant), sets out five different phases for expansion and development, each phase comprising a different parcel of land as described on a New Haven land records map (map). When added together, the five phases comprise approximately 9.4173 acres. Currently, the condominium is located on the property described as phases I and II on the map, and Harbour Pointe owns the adjacent property, described as phases III, IV and V on the map.[5]
With respect to the contemplated expansion of the condominium, the declaration provides that the remaining phases, or any portion of the remaining phases, can be added to the condominium at different times. The declaration also provides, however, that there is "no assurance of, or limitation on" the expansion of the condominium to add the remaining phases within the seven year period from the date of recording of the declaration.
Recognizing the uncertainty of expansion, article IIIa of the declaration grants to phases II, III, IV and V access and utility easements over phase I. These easements continue "until and unless" each phase is added to the condominium. When the original declaration was recorded in 1983, only phase I was subject to the easements created by the declaration. After the condominium added phase II, however, the declaration was amended to reflect the extension of the easements over phase II. On July 19, 1990, the condominium's right to expand expired. Harbour Pointe, therefore, is comprised of phases *287 III, IV and V, and has not been added to the condominium.
The dispute between the parties began after Harbour Pointe hired a contractor to install utility lines over the easements and the contractor attempted to use Harbour Close, a private roadway on the condominium property. The association denied the contractor access to the condominium property, put up "No Trespassing" signs facing Harbour Pointe and informed Harbour Pointe that it would treat the use of the alleged easements as a trespass.
In 2007, Harbour Pointe brought the present action seeking, inter alia, injunctive relief enjoining the defendants from interfering with Harbour Pointe's use and enjoyment of the access and utility easements, and an order quieting title to the easements pursuant to General Statutes § 47-31. At the commencement of trial, the parties stipulated to underlying facts, including a description of the parties, the date of the recording of the declaration, and the location of the easements. They further stipulated that "[t]he right to expand the ... [c]ondominium expired on July 19, 1990; accordingly, no more land or units may be added and the ... [c]ondominium is fully expanded." Harbour Pointe argued that article IIIa of the declaration clearly and unambiguously reserved the easements in favor of phases III, IV and V, and that the easements had not extinguished. The defendants, however, maintained that, upon the consideration of every article of the declaration and the circumstances surrounding the condominium's creation, the duration of the easements was ambiguous. The defendants contended that an alternate, reasonable construction of the declaration was that, because the condominium was "fully expanded," meaning its expansion rights had expired, the easements had terminated.
On January 23, 2009, the trial court rejected the defendants' claims, concluding that, because the language in the declaration was clear and unambiguous, the easements granted to Harbour Pointe "can only be extinguished ... if the land described as phases III, IV and V were used to expand the ... condominium. ... That condition has not been met and therefore the easement rights granted remain in full force and effect." In accordance with this reasoning, the trial court permanently enjoined the defendants from interfering with Harbour Pointe's use and enjoyment of the easements. The court also issued an order quieting title to the easements in Harbour Pointe, and terminated any automatic stay of execution. The defendants filed separate appeals from the trial court's judgment, which were consolidated by the Appellate Court and transferred to this court.
The defendants contend that the trial court improperly concluded that the declaration clearly and unambiguously provides that the easements will expire only when the remaining phases are added to the condominium. Accordingly, the defendants argue, the declaration should be construed against the declarant[6] and interpreted *288 consistently with the defendants' contention that the easements have expired. We disagree.
The resolution of this issue turns on the interpretation of the declaration. "Because the [condominium] declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations, we apply the rules of contract construction to the interpretation of [the declaration]." Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005). "It is well established that [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... It is axiomatic that a matter of law is entitled to plenary review on appeal." (Citation omitted; emphasis in original; internal quotation marks omitted.) Crews v. Crews, 295 Conn. 153, 162, 989 A.2d 1060 (2010).
"In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction.... We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract. ... Where the language is unambiguous, we must give the contract effect according to its terms. ... Where the language is ambiguous, however, we must construe those ambiguities against the drafter. ... This approach corresponds with the general rule that [a]ny ambiguity in a declaration of condominium must be construed against the developer who authored the declaration." (Citations omitted; internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. at 734-35, 873 A.2d 898.
Furthermore, "[a] contract is unambiguous when its language is clear and conveys a definite and precise intent.... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. ... Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.... In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. ... [A]ny ambiguity in a contract must emanate from the language used by the parties. ... The contract must be viewed in its entirety, with each provision read in light of the other provisions... and every provision must be given effect if it is possible to do so. ... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Id., at 735, 873 A.2d 898. With these principles in mind, we turn to the defendants' claims.[7]
*289 Article IIIa of the declaration, entitled "Declaration of Easements," deals specifically and exclusively with the creation and terms of the easements, and "establish[es] ... for the benefit of the remainder of the land described as [p]hase II, [p]hase III, [p]hase IV and [p]hase V... (1) an easement for ingress and egress, by vehicles or on foot, in, to, upon and over the driveways and roadways in [p]hase 1, including Harbour Close, and... (2) rights to install, connect with, make use of ... utility lines ... over or under the driveways or other [c]ommon [e]lements of [p]hase I. ... Said easements shall continue until and unless that portion of the remaining land is added to ... [the] [c]ondominium." (Emphasis added.) In other words, article IIIa gave to "the remainder of the land," meaning phases III, IV and V, which are now owned by Harbour Pointe, easements that "shall continue until and unless" the condominium "add[s]" those properties. The only reasonable interpretation of article IIIa is that, but for the addition of the remaining *290 phases to the condominium, Harbour Pointe enjoys easement rights; the addition to the condominium is a precondition to the termination of the easements.[8] Because the addition did not occur, and the condominium's expansion rights expired in 1990, Harbour Pointe enjoys easement rights.
Language in article V of the declaration supports this interpretation. Article V, entitled "Description of Buildings and Units," provides a broad depiction of the structures on the landthe gatehouse, residential units, parking garage, clubhouse, swimming pools, boardwalks, storage bins, flooring, kitchen equipment and available utilities. Within this context, article V provides in relevant part: "The [d]eclarant has reserved an easement in favor of the additional land for ingress, egress and for utility installations across [p]hase I and future phases, which will continue until and unless the [c]ondominium is fully expanded." (Emphasis added.) Under article V of the declaration, "[i]f the [c]ondominium is fully expanded ... the maximum number of [u]nits to be sold or rented will be [300] [u]nits contained on a 9.4174 acre site." The declaration provides that "[t]he [300] [u]nits will be offered in five phases ... [and] [t]he [d]eclarant intends to sell all of the [u]nits. ..." (Emphasis added.) Put another way, the condominium is "fully expanded" within the meaning of the declaration, when it includes 300 units on a site of approximately nine acres, and encompasses all five phases of the development. Until that time, the easements continue. This limitation is consistent with the statement in article IIIa that the easements continue "until and unless" the phases are "added"; for the easements to terminate, both articles require the condominium to add all phases. As we have already noted in this opinion, the condominium's right to expand has expired. Accordingly, the easements continue. We thus conclude, based on the consistent language of articles IIIa and V, that the declaration clearly and unambiguously grants access and utility easements that terminate only if the condominium adds all of the phases.
The defendants argue that the declaration is ambiguous because article V directly contradicts article IIIa. While the defendants agree that article IIIa provides that the easements will terminate only if the condominium adds the remaining phases, they contend that article V provides that the easements will terminate when the association is "fully expanded." The defendants further claim that the phrase "fully expanded," as used in the declaration, means the point at which the condominium can no longer add additional phases. We are unpersuaded.
The defendants rely on the parties' stipulation that "[t]he right to expand the [c]ondominium expired on July 19, 1990; accordingly, no more land or units may be added and the ... [c]ondominium is fully expanded." The phrase "fully expanded," as used in the declaration, however, means something entirely different from the phrase "fully expanded," as used in the stipulation. The stipulation does not refer to the declaration's definition; instead, it simply uses the phrase to mean that the condominium can no longer be expanded. The stipulation, therefore, does not alter the reasoning or outcome of this case, which depends entirely on the unambiguous language of the declaration.
*291 The defendants respond that ambiguity exists because, despite the parties' stipulation that the association is "fully expanded," they now dispute the meaning of that phrase. We disagree. "[T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. at 735, 873 A.2d 898. The simple fact that the parties have different understandings of the declaration does not compel uncertainty. Moreover, even if the declaration is ambiguous, which it is not, the trial court is only bound to consider relevant extrinsic evidence. II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000). Here, the parties' stipulation is dated August 20, 2008, more than twenty-five years after the original declaration was filed in July, 1983. The stipulation would be too far removed in time from the original declaration to be considered relevant extrinsic evidence.
The defendants next argue that the declaration is ambiguous because, while article IIIa describes phases II, III, IV and V only as the "`remaining land,'" other articles within the declaration and the public offering statement describe those phases as the "`remaining land,'" "`expansion parcels'" and "`additional land.'" We disagree. These descriptive phrases are indistinguishable and clearly refer to the same land. General Statutes § 47-70(b)(4) defines "`additional land'" as "all land that may be added to the condominium. ..." When the declaration was recorded, the condominium potentially could have added phases II, III, IV and V. Article V of the declaration provides that the easements are "in favor of the additional land"; article III of the declaration provides that the easements are "in favor of the expansion parcels as set forth in [a]rticle IIIa hereof"; and the public offering statement describes the units as subject to easements "in favor of the additional land as set forth in [a]rticle IIIa of the [d]eclaration."[9] (Emphasis added.) The declaration and the public offering statement consistently describe the same parcels of land and do not provide any different expiration dates for the easements; the phrases are interchangeable and do not lead to ambiguity.
The defendants also contend that the declaration is ambiguous because it grants *292 easement rights over certain common elements, such as the roadway, Harbour Close, even though article VIII, § 2(a) of the condominium's bylaws limits the "[u]se of the [c]ommon [e]lements ... to the [u]nit [o]wners, their tenants and a reasonable number of their guests." We discern no ambiguity in these facts. The parties stipulated that "certain driveways and a private roadway known as Harbour Close... are common elements. ..." Article VII of the declaration defines "[c]ommon [e]lements" as "all portions of the [c]ondominium except the [u]nits" and § 47-68a (e) defines "[c]ommon elements" as "all portions of the condominium other than the units." While the declaration granted Harbour Pointe easement rights over these stipulated common elementsthe driveways and the roadwaythe use of the rest of the common elements, meaning the rest of the condominium besides the units themselves, is restricted to unit owners, their tenants and a reasonable number of their guests. The statement in the bylaws clearly pertains to the rest of the common elements and not to the driveways and the roadway. Moreover, a landowner can restrict use of his or her property to certain individuals and still grant an easement; one action does not preclude the other. The statement in the bylaws, therefore, is not at variance with easements and does not lead to ambiguity.
We hold that the trial court properly concluded that the declaration clearly and unambiguously grants easements that terminate only if the condominium adds the remaining phases. Accordingly, we conclude that the trial court properly issued an injunction permanently enjoining the defendants from interfering with Harbour Pointe's use and enjoyment of the easements and issued an order quieting title to the easements in Harbour Pointe.
The judgment is affirmed.
In this opinion ROGERS, C.J., and PALMER and EVELEIGH, Js., concurred.
VERTEFEUILLE, J., dissenting.
I respectfully disagree with the majority's conclusion that the condominium declaration (declaration) in the present case clearly and unambiguously gives the plaintiff, Harbour Pointe, LLC, a developer and the current owner of certain real property in New Haven identified as phases III, IV and V of Harbour Landing, an expandable condominium (Harbour Landing), which property was never added to the condominium, a permanent easement over that property at the expense of Harbour Landing. Notwithstanding a few inartfully drafted sentences in the declaration on which the majority rests its interpretation, I believe that an analysis of the full declaration, under which the named defendant, Harbour Landing Condominium Association, Inc. (association),[1] was created, considered in light of the history and purpose of the Condominium Act of 1976 (act), General Statutes § 47-68a et seq., and the other condominium documents, makes clear that the disputed easements ended with the expiration of the expansion rights of Harbour Landing Development Corporation (declarant), the plaintiff's predecessor in interest. See footnote 3 of the majority opinion. Accordingly, I respectfully dissent.
As an initial matter, I agree with the majority that the resolution of this appeal hinges on the proper interpretation of the easement provisions of the declaration. I disagree, however, with the majority's assumption *293 that a condominium declaration, like other types of contracts, is to be interpreted in the first instance solely based on the intent of the drafting parties, as expressed in the language of the declaration itself. There are two fundamental distinctions between condominium declarations and more conventional forms of contracts that counsel against such an approach.
First, although a condominium declaration does establish the rights and obligations of multiple parties, there is in fact only one party to the declaration itself: the declarant. The other parties whose rights will be determined by the declaration, most notably the unit purchasers who will then belong to the condominium association, play no role in its drafting. In disputes, then, between unit owners and the declarant,[2] adopting a rule of construction that gives primacy to the intent of the drafter will significantly benefit a declarant at the expense of the unit owners, since the former may be presumed to have drafted the declaration to protect its own legal interests. As I discuss hereafter, eliminating the ability of condominium developers to stack the deck in their own favor at the expense of unsuspecting purchasers was precisely the legislature's goal in adopting the act. Accordingly, we ought to construe the declaration in the present case with this purpose in mind.
The second distinction is that a condominium declaration is not solely a child of contract law. Rather, it is a hybrid creation of contract and property law, made possible only where expressly authorized by an enabling statute. See William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801, 803-804, 643 A.2d 1298 (1994); annot., 39 A.L.R. 4th 98, 99 (1985). In the present case, the very first sentence of article I of the declaration makes clear that the declarant submitted the property "to the terms and conditions of the [act]. ..." The declarant reiterates this point twice in article III of the declaration, where the key phrase "expandable condominium" is defined by reference to the act. Likewise, no fewer than six references to the act appear throughout article II, the "definitions" section of the declaration. Given this intimate relationship between a condominium declaration and the enabling statute that governs it, courts seeking to parse disputed declaration provisions have properly begun the interpretive process by reading the language of the declaration in light of the enabling statute and the accompanying bylaws. See, e.g., Johnson v. Fairfax Village Condominium IV Unit Owners Assn., 548 A.2d 87, 91 (D.C.1988) (noting that while "rules of contract interpretation are generally applicable to the interpretation of bylaws ... [a] condominium declaration, bylaws, sales agreements, and the relevant statutes must be construed as a whole ... [because] laws in existence at the time a contract is entered into are implicitly incorporated into the agreement" [citation omitted]); Wilderness Country Club Partnership, Ltd. v. Groves, 458 So. 2d 769, 771 (Fla.App.1984) (concluding that declarations explicitly submitted subject to state condominium statute "evidence an intent... to be bound by the condominium act as it existed when the declaration was recorded"); Wolinsky v. Kadison, 114 Ill. App. 3d 527, 532, 70 Ill. Dec. 277, 449 N.E.2d 151 (1983) ("When a controversy arises as to the rights of a unit owner in a condominium, we must examine any relevant provisions in the condominium enabling statute, consider the declaration, *294 and study the bylaws and attempt to reconcile the three. ... We must construe the declaration, bylaws and statute as a whole." [Citation omitted.]); Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md.App. 464, 465-66, 418 A.2d 1233 (1980) (same).
This case law is not in direct conflict with the language in Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 873 A.2d 898 (2005), on which the majority relies. That case, like Johnson, notes the general applicability of principles of contractual interpretation to condominium declarations. Cantonbury Heights Condominium Assn., Inc., also acknowledges, however, that in parsing the language of the declaration, we must take "into consideration the circumstances of the parties and the transaction." Id., at 735, 873 A.2d 898. In the present case, the intent of the declarant and the circumstances of the declaration clearly were informed by the governing framework established by the act. I thus agree with the trial court, which properly found that "[w]hile the dispute in this case is determined by the language of the declaration, the enabling legislation provides part of the context within which the declaration must be interpreted." Indeed, the court in Cantonbury Heights Condominium Assn., Inc., looked to the enabling statute to assist in the interpretation of the declarant's language and intent, observing that "the declaration... must adhere to the requirements of the act. ..." Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, supra, at 740, 873 A.2d 898.
Accordingly, before analyzing the declaration itself, I briefly consider the relevant provisions of the act pursuant to which the declaration was submitted to determine how the act treated the reservations of easements in expandable condominiums. This presents "a question of statutory interpretation, over which we exercise plenary review." Ziotas v. Reardon Law Firm, P. C., 296 Conn. 579, 587, 997 A.2d 453 (2010). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 91, 10 A.3d 498 (2010). Because I conclude that the relevant provisions of the act are not plain and unambiguous, my analysis is not constrained by the plain meaning rule. Rather, I look for interpretive guidance to "the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ..." (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005). Two provisions of the act are relevant for present purposes.
First, the act defines an "`[e]xpandable condominium'" such as Harbour Landing, as one "to which additional land may be added in accordance with the provisions of the declaration and of this chapter." General Statutes § 47-68a (y). "`[A]dditional land,'" in turn, is defined simply as "all land that may be added to the condominium. ..."[3] General Statutes § 47-70(b)(4). The majority concludes that this definition is not ambiguous, that in a particular expandable condominium the "additional land" isand always will beany land that could potentially have been added *295 at the time the declaration was recorded. I disagree.
It is true that the statutory definition may be read consistent with the majority's view, that "additional land" is defined at the time of declaration. On that view, a condominium that was expandable at the outset remains "expandable," even if the declarant does not in fact expand it before the expansion deadline has passed. But the act may also be read in a temporally indefinite manner, so that once the window for expansion has closed, and no land may be added to a condominium, the original expansion parcels cease to be "additional land" and the condominium ceases to be "expandable." This is, arguably, the most literal reading of the text of § 47-70. It is certainly a reasonable one. Because there is more than one reasonable interpretation of the statute, I find it to be ambiguous.[4] The majority provides no rationale for assuming that the legislature intended that the key terms "additional land" and "expandable" be defined at the time of the recording of the declaration rather than when a subsequent dispute arises. I believe that that ambiguity, which reflects a fundamental policy choice, should be resolved by reference to the history of § 47-70.
A second source of ambiguity in the governing statute relates to the types of easements that a declarant is permitted to reserve in the declaration. Section 47-70(d),[5] which was adopted together with the expandable condominium provisions as part of the act, expressly requires that units be conveyed to purchasers in fee simple absolute. Of the permissible exceptions to this requirement, only those in subdivision (1) of § 47-70(d) might plausibly permit the easements created in the present case. That provision limits the easements that may encumber a condominium to "[p]roperty reservation which land developers commonly convey or dedicate to local bodies, public or private utilities or other easements, for the purpose of bringing utilities to or through the condominium, *296 access to or through the condominium, and drainage to, from, and through other land in the vicinity of the condominium, and drainage to, from and through other land in the vicinity of the condominium. ..." General Statutes § 47-70(d)(1).
There are several sources of ambiguity in the statutory language. First, the first half of the subdivision, beginning with the word "[p]roperty" and ending with "other easements," is subject to three different interpretations, each of which is arguably either ungrammatical or nonsensical. General Statutes § 47-70(d)(1). It might identify three different types of easements: (1) a property reservation to local bodies; (2) public or private utilities; and (3) other easements. But utilities are not easements. Alternately, it might identify two types of easements: (1) a property reservation to local bodies or utilities; and (2) other easements. That construction is ungrammatical as written, however, wanting a coordination conjunction between the words "bodies" and "public." Finally, the sentence might identify three types of common property reservationsthose to local bodies, those to utilities, and other types. That reading, however, would result in the awkward construction: "Property reservation which land developers commonly convey or dedicate to ... other easements. ..." Because any of these readings is plausible, and none can be reconciled fully with the language used,[6] the text is ambiguous.
This ambiguity is important. If the qualifying phrase "which land developers commonly convey" in § 47-70(d)(1) does apply to the "other easements" that presumably would include those in the present case, then the legality of those easements would hinge in part on whether such easements were common at the time. The trial court made no such finding.[7]
Second, regardless of how the first half of subdivision (d)(1) of § 47-70 is construed, it is unclear whether the second half permits the sort of utility easements at issue here. The statute permits utility easements only "for the purpose of bringing utilities to or through the condominium...." (Emphasis added.) General Statutes § 47-70(d)(1). The text makes no explicit allowance for easements, such as the ones in the present case, that bring utilities from a condominium for the benefit of other adjacent but independent properties. Of course, the term "through" in the statute might be construed broadly, to include the bringing of utilities from a condominium, to other, unaffiliated properties, long after construction of the condominium has been completed. The fact that the very next line in the statute, however, contains the phrase "drainage to, from, and through other land"; (emphasis added) General Statutes § 47-70(d)(1); suggests that the drafters may have made a conscious choice not to permit declarants to reserve utility easements burdening the subject condominium. At very least, the drafters' intent is ambiguous.
To resolve these ambiguities, I look both to the broader structure of the act and to its legislative history, considered in light of the development of condominium law in *297 the United States over the past fifty years. The condominium represents a relatively recent creation of property law, with most states having passed condominium acts only after the adoption of the federal Housing Act in 1961. L. Joliet, "The Expandable Condominium: A Technical Analysis," 9 A.B.A. L. Notes 19 (1972). By the early 1970s, there was broad agreement that first generation condominium acts suffered from two fundamental flaws: they "unreasonably restrict[ed] the inherent flexibility of the condominium concept, while failing to provide an adequate measure of purchaser protection in this new field of real estate law." Report of the Committee to Study and Recommend Revision of the Condominium Laws to the Governor and the General Assembly of Virginia, Va. House Doc. No. 5, p. 3 (1973) (Virginia Report); see also J. Inglis, note, "Expanding Condominiums in Ohio," 29 Case W. Res. L.Rev. 228, 231, 257 (1978) (early drafts of condominium statutory scheme in Ohio restricted flexibility of developers that could cause financial loss and inconveniences to both builders and purchasers, while subsequent amendments retained flexibility on developer's part with consumer protection against uncertainties provided through disclosure).
The inflexibility of first generation condominium acts reflected in part the fact that title typically could not be transferred from developers to unit owners until all of the units in a development were completed. See, e.g., L. Joliet, supra, at 9 A.B.A. L. Notes 19. This created a dilemma for developers. There are significant "economies of scale" associated with larger condominium projects. See Virginia Report, supra, at p. 7. For example, larger developments allow owners to spread fixed costs such as professional management, recreational facilities and the like over a greater number of units. Under the old rules, however, planning and completing a large condominium complex created significant challenges for both developers and buyers. The developer might underestimate the number of interested buyers, thus losing potential sales. See id. Worse yet, it might overestimate demand, threatening the entire project. In either event, the developer had to carry construction financing costs on completed units until an entire development was finished. L. Joliet, supra, at 19. At the same time, would-be buyers might be deterred by their inability to obtain timely title to their condominium units and control over the condominium association from the developer. Id.
Critics of first generation condominium statutes also decried a range of abusive practices by which unscrupulous developers were able to take advantage of consumers. Examples included developers maintaining indefinite control over condominiums by retaining ownership of the last unit, binding the condominium to self-dealing "sweetheart" agreements benefiting them at the expense of future owners, and saddling buyers with higher than expected maintenance costs. See Virginia Report, supra, at p. 3.
In response to these concerns, in the early 1970s the Virginia legislature directed that a committee be appointed to study the problems with the existing condominium statutes and to propose a second generation condominium act that would provide greater flexibility for developers while increasing consumer protection (committee). See id., at p. 2. Noting that none of its sister states had yet attempted to resolve these problems; id., at p. 3; the committee took as its mandate the creation of "a model and a pattern for new condominium legislation throughout the United States." Id., at p. 4. Indeed, the Virginia statute adopted in 1974 based on the committee's recommendation (model statute); Virginia Condominium Act, Va.Code Ann. *298 §§ 55-79.39 through 55-79.103 (Sup.1974); became a model for second generation condominium statutes throughout the country, including the act in Connecticut. See note, "Nineteenth Annual Survey of Developments in Virginia Law 1973-1974, Property," 60 Va. L.Rev. 1583, 1591 and n. 64 (1974); see also W. Hyatt, Condominium and Homeowner Association Practice: Community Association Law (3d Ed. 2000) § 1.05(b), p. 12.
The committee sought to provide developers greater flexibility by permitting a variety of "progressive" development options, including convertible, contractable and expandable condominiums. Virginia Report, supra, at pp. 5-7. All of these options are designed to allow developers to take advantage of strong consumer demand for a project should that demand materialize, while at the same time not locking developers into overly ambitious projects if demand proves weaker than expected. Id. In the case of the expandable condominium in particular, the committee emphasized that this development model was designed for the scenario where a developer "hopes ultimately to develop" an entire plot of land into a single complex, but wants to reserve the right to keep the project smaller if demand is not as high as had been expected. Id., at p. 7.
I take from this history that the intent of the expandable condominium provisions of the committee's model statute was to afford both developers and buyers the security of being able to complete a large project piece by piece, insulated from the risk that a worse than expected market might leave both buyers and sellers facing the problems associated with a project abandoned midstream. The intent does not appear to have been to allow a developer to entice early phase buyers with the promise of a large development, where road and utility costs would be shared with future buyers, only to have the developer turn around and create an independent development on the adjacent expansion parcels. The intent certainly was not to achieve the outcome advocated by the plaintiff, in which early phase buyers not only lose their anticipated economies of scale, but actually are forced to shoulder the fixed costs of a wholly unrelated neighboring development.
The consumer protection provisions of the model statute further bolster my view that the majority's interpretation of the declaration runs contrary to the rationales underlying modern condominium law. In the synopsis to the model act, the committee underscored that the primary focus of the reformed legislation is to create "a higher degree of consumer protection. ..." Id., at p. 3. The Virginia Report specifically notes the importance of allowing unit owners to obtain full, ongoing control of their development, including the freedom to "rescind or renew at will any contracts or leases entered into on their behalf during the period of developer control." Id.
The Connecticut legislature, in drafting the act in 1976, drew heavily on the committee's report and model statute. See Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1976 Sess., pp. 147, 162-63. Indeed, many provisions of the act are drawn more or less verbatim from the Virginia model statute. For example, § 47-68a (y), defining expandable condominiums, and § 47-70(b)(1) through (10), setting forth many of the declaration requirements for expandable condominiums, are virtually identical, respectively, to §§ 3(n) and 16(c)(1) through (10) of the model statute. Moreover, the legislative history of the act makes clear that our legislature, in borrowing liberally from the model statute, was guided by the same concerns as the Virginia committee: protecting *299 the interests of buyers against self-dealing by developers, while facilitating the construction of multiphase condominium developments. The "Statement of Purpose" of Raised House Bill No. 5014 (1976), which became the act, lays out the simple goal of the law: "To provide necessary protection to prospective purchasers and to owners of condominium units in this state." Raised Committee Bill No. 5014 (1976). Representative Ernest Abate, speaking in support of House Bill No. 5014, made clear that the predecessor statute "offered the opportunity for abuse" and that the bill was written in "an effort to remedy ... and to prevent potential future abuses. ..." 19 H.R. Proc., Pt. 7, 1976 Sess., p. 2684; see also id., at p. 2675, remarks of Representative Albert Webber (as sponsor of bill in House of Representatives, Representative Webber referring to bill as "a much needed and long overdue condominium protection bill" designed to allay "all kinds of bitter complaints about condominiums" and to protect buyers' investments).
The following week, the bill's Senate sponsor, Senator Louis Ciccarello, in explaining the unanimous House vote in favor of Bill No. 5014, elaborated: "[I]f condominium sales have multiplied, so have reports of misrepresentations, self-dealing contracts and other abuses by condominium developers. Consumer problems in the condominium industry have received much attention in recent months. There is low-balling, the practice of understating the monthly condominium fee charged for maintenance of common areas and other building expenses. ... There is the sweetheart contract. ... There is a ninety-nine year recreation lease in which the owners find that they do not own the swimming pool or other facilities but in fact are leasing them from the developer at a steep rental fee. ... The owners find that after they take control that they are saddled with expensive repairs. ... Caveat emptor is the only applicable doctrine. ... [T]his all points out the need to revise our condominium laws in the [s]tate of Connecticut. ... [T]his bill will serve to eliminate the abuses and complaints which have affected condominium sales and it will have the effect of raising consumer confidence...." 19 S. Proc., Pt. 6, 1976 Sess., pp. 2474-77.
Consistent with those goals, the act contains a number of provisions designed to prevent condominium developers from using self-dealing declarations to lock unsuspecting buyers into costly long-term agreements. Examples include General Statutes § 47-74b,[8] which requires the termination after five years of any contract made by the declarant on behalf of the development if the contract is not extended by the unit owners; and General Statutes § 47-74c,[9] which bars the declarant *300 from requiring lease payments for, or conveying to nonresidents, the condominium's recreational facilities.
I think it is especially noteworthy that where the act departs from the Virginia model act, it does so in favor of greater protection for unit purchasers. For example, subdivisions (12) and (13) of § 47-70(b),[10] which do not appear in the model statute, establish a robust notice requirement for expandable condominiums. The phrase "`an expandable condominium'" must appear in the name of every expandable condominium. More importantly, declarants must warn prospective purchasers, in conspicuous lettering, on the very first page of the condominium declaration as well as just above the signature line on all purchase agreements, of any powers or rights reserved to the declarant. General Statutes § 47-70(b)(13). In other words, the act embodies the legislative expectation that the declarant's control over a condominium project will be circumscribed and short-lived, and that prospective buyers will be clearly informed of the extent of such control.
Three lessons emerge from this review of the language and history of the act. First, there is no indication that the drafters of either the model statute or the act considered the possibility that a developer might decline to add expansion phases to a condominium, but nevertheless seek to burden the owners of condominium units with the costs associated with a permanent easement in favor of an unrelated development on those expansion parcels. Quite the contrary, the assumption appears to have been that where expansion did not occur, the links between the initial and expansion phases would be severed.
Nor do I think it likely that any of the initial Harbour Landing unit purchasers considered this possibility. The initial declaration was recorded in January of 1983, less than seven years after the passage of the act. Because the act created a default seven year window for the completion of expandable condominiums, it is doubtful that the expansion rights of many, if any, condominiums created pursuant to the act had terminated by that date. I am not aware of any cases in Connecticut or other jurisdictions that ever have addressed the issue. Accordingly, in parsing the condominium documents in the present case, there is no reason to assume that the parties foresaw and spoke to the issue at bar.
The second lesson to be drawn from the statutory history is that the act, as with the Virginia Report on which the act was modeled, was remedial in nature. It specifically sought to thwart the pervasive use of self-dealing declarations, by which developers benefited themselves, or their independent development projects, at the *301 expense of condominium unit buyers. We have made clear that remedial statutes "must be afforded a liberal construction in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 133, 676 A.2d 369 (1996). Accordingly, when, as here, a condominium developer arguably concocts a novel method of saddling the condominium buyers with the unfairness of an unrelated condominium with unexpected and arguably unreasonable costs, courts should construe provisions of the condominium declaration with due regard for the consumer protections embodied in the act.
The third lesson I draw from the broader structure and history of the act is that the balance between protecting consumers and affording greater flexibility to developers turns on the fulcrum of adequate notice. Where the act gives a declarant options, it imposes on it a corresponding duty to inform potential buyers clearly and explicitly that they purchase subject to the decisions that a developer has made with regard to those options.
In interpreting the declaration in the present case, I also rely heavily on the principle that the burden of ambiguity should fall on the party best positioned to avoid the cost thereof. Accord F. Kieff, "The Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules," 45 B.C. L.Rev. 55, 99 (2003) (noting that United States Court of Appeals for Federal Circuit has imposed clear notice requirement of what will infringe patents because patentee, as drafter, is least cost avoider of such ambiguities).[11] Under the act, a declarant *302 already is required to make numerous clear, unambiguous disclosures to potential buyers; it can easily reserve an easement such as that sought by the plaintiff in the present case by simply inserting one additional disclosure: a first page statement that would provide language such as "if the expansion phases are not added to the condominium within seven years from the date of recording of the declaration, those phases nevertheless will retain an easement in perpetuity over the condominium property, as described in [the particular article of the condominium declaration]."[12] By contrast, where the scope and nature of reserved easements are unclear, they should not be interpreted to impose an endless and costly burden on the unit owners of the condominium. The declarant, as the drafter, and its successors should thus bear the burden of any latent ambiguities as to the scope of the easements reserved in the condominium declaration.
I turn, then, to the declaration for Harbour Landing to determine the scope of the easements established in the declaration. Rather than clearly and precisely defining the nature of the reserved easements for ingress and egress and to connect to utilities, the declarant, the plaintiff's predecessor, described the easements using confusing and imprecise language. First, the phrase "until and unless" used to limit the duration of the easements described in both articles IIIa and V of the declaration is unnecessarily confusing. Black's Law Dictionary (4th Ed. 1968) defines "unless" in pertinent part as "a conditional promise." By contrast, it defines "until" in pertinent part as "[a] word of limitation, used ordinarily to restrict that which precedes to what immediately follows it, and its office is to fix some point of time or some event upon the arrival or occurrence of which what precedes will cease to exist." Id. These words thus have very different meanings, with the result that the meaning of the provision that the easements in question continue "unless and until" the additional land is added is unclear at best.
A second phrase whose meaning is elusive is the term "fully expanded," which triggers the termination of the easements in article V of the declaration. The defendants contend that once the seven year window for expansion had closed, the condominium was fully expanded because no further expansion was possible. The plaintiff responds that only a "tortured" reading of the language of the declaration supports the defendants' interpretation. I agree with the defendants.
The question here, in essence, is whether something that might have grown to reach a certain size, but whose growth is irrevocably halted before reaching that *303 size, can reasonably be said to be "fully" grown. I conclude that it can because to prevail, the defendants need establish only that their interpretation of the declaration is one reasonable reading of the document. To my mind, the fact that we do use similar expressions in the way the defendants contend renders their reading reasonable.
The joint stipulation of facts signed by the parties in the trial court further supports my understanding of the term "fully expanded." The defendants make much of the fact that the plaintiff stipulated to their interpretation of the term, whereas the majority contends that the stipulation, to which the parties agreed more than twenty-five years after the recording of the original declaration, does not speak to the original intention of the parties. Both the defendants and the majority miss the point here. The stipulation does not commit the plaintiff to an interpretation of the declaration with which it clearly does not agree. But the fact that the plaintiff itself readily agreed that Harbour Landing is fully expanded, and that the term "fully expanded" can be applied to a situation where an expandable condominium is never completed, does provide strong support for my belief that it is reasonable to read the easement language in the declaration consistent with the defendants' view.[13]
Nor does the declaration ever define the key term "additional land" to which the easements in article V attached. The same ambiguity that plagues the act thus infects the declaration as well: it is unclear whether land that might once have been added remains "additional land" once the window for adding such land to the original development has closed.
In short, the declaration fails to establish clearly that the condominium property is subject to perpetual and costly easements for the benefit of an adjacent unrelated development. The declarant had numerous opportunities to state clearly and unambiguously that it intended to retain a permanent easement should the expansion parcels not become part of Harbour Landing. The declarant could have included such a statement on the first page of the declaration, where other important consumer disclosures appeared prominently. It could have defined key terms such as "additional land" and "fully expanded" in the definitions section of the declaration, where it defined twenty other terms. It could have stated explicitly that after seven years it would hold the easements "in perpetuity."[14] It could have clarified the scope and duration of the easement when it amended the declaration in 1986, 1988 and again in 2001. Most importantly, the declarant could have made clear the permanent nature of the easements in the *304 public offering statements supplied to potential buyers. Indeed, the declarant was required to do so under General Statutes § 47-71b,[15] but nevertheless failed to do so.
The plaintiff contends, and the majority agrees, that notwithstanding any ambiguity in the description of the easement in article V of the declaration, article IIIa does in fact clearly and unambiguously establish an easement in perpetuity despite the declarant's decision not to add the expansion parcels. For the following four reasons, I disagree. First, I reiterate that the use of the expression "until and unless" in article IIIa can be read to indicate that the contingency terminating the easements was expected to occur. Even the article IIIa description of the easements is thus not unambiguous.
Second, even if the language in article IIIa does appear to be unambiguous, the declaration includes other, parallel language, which clearly is not intended to be interpreted as having perpetual duration. The third paragraph in article V of the declaration, for example, provides that the "[d]eclarant ... reserves the right ... to maintain sales and administration offices in the [c]lubhouse until all [u]nits in all phases of the [c]ondominium are sold by the [d]eclarant." (Emphasis added.) This reservation is restated in the third to last paragraph of the same article: "[T]he [d]eclarant has reserved a right to maintain sales and administration offices in the [c]lubhouse until all [u]nits in all phases are sold by the [d]eclarant." Interpreting this provision in the same manner as the majority interprets the easements would mean that this reservation would allow the declarant to maintain a sales office in the Harbour Landing clubhouse indefinitely, until the declarant had sold every unit in its own, independent development on the adjacent expansion parcels.
That reading of the declaration, however, would conflict with General Statutes § 47-73a (e), which provides: "The declarant and his duly authorized agents, representatives, and employees may maintain sales offices and model units on the condominium parcel if and only if the condominium instruments provide for the same and specify the rights of the declarant with regard to the number, size, location and relocation thereof. Any such sales office or model unit which is not designated a unit by the condominium instruments shall become a common element as soon as the declarant ceases to be a unit owner, and the declarant shall cease to have any rights with regard thereto unless such sales office or model unit is removed forthwith from the condominium parcel in accordance with a right reserved in the condominium instruments to make such removal." Clearly, then, the reservation language does not permit the declarant perpetually to maintain sales offices in Harbour Landing buildings, from which to market its own separate development on neighboring land. Rather, consistent with § 47-73a (e), the declaration must be read to contain the reasonable restriction that the declarant can maintain offices in the Harbour Landing clubhouse only to market units that are, or will become, part of Harbour Landing.
Likewise, I believe that the disputed easements in the present case are most *305 reasonably read to mean that the declarant may access the Harbour Landing roads and utilities for the purpose of developing phases that it intends to add to Harbour Landing. After the seven year window for expansion has closed, such easements, like the sales office, are no longer necessary or appropriate. Units built on expansion parcels that are later added to the condominium no longer require such an easement, because those parcels became part of the condominium. By contrast, if the expansion parcels are not added, then just as the declarant can no longer expect to have a sales office at Harbour Landing in order to market its adjacent development, it must fend for itself when it comes to obtaining access to and utilities for those projects. A few overly general statements in the declarationstatements that conflict with the actought not be read to suggest the contrary.
A significant, additional reason not to construe the language of article IIIa of the declaration as the trial court has is that it conflicts with equally clear language in article VIII of the bylaws, which were recorded as an amendment to the declaration pursuant to General Statutes § 47-80(a). "[W]hen interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Internal quotation marks omitted.) Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 391, 985 A.2d 319 (2009). Here, § 2(a) of article VIII of the bylaws provides: "Use of the [c]ommon [e]lements shall be limited to the [u]nit [o]wners, their tenants and a reasonable number of their guests." In adopting the plaintiff's interpretation of the easements at issue, the trial court completely failed to address this provision of the bylaws. In my view, it is inappropriate to construe an ambiguous provision of the declaration in such a manner that it is directly contradictory to a clear and unambiguous provision of the bylaws that is protective of the rights of the unit owners.
The plaintiff's interpretation of the easements also is inconsistent with provisions in the condominium documents governing access to the condominium. Article V of the declaration, for example, provides that a "gatehouse at the main [northern entrance off Sea Street] will limit access to the private road, known as Harbour Close, serving the [c]ondominium. Access at the [eastern] South Water Street juncture of the private road will be limited by a locked gate or other similar device." The fact that under article V of the declaration, both entrances to the community were secured and access to the condominium and parking spaces would be restricted to unit owners and their guests should bear on the interpretation of the easements at issue in the present case. Indeed, it is hard to imagine a rationale for simultaneously providing, on the one hand, for a secure, limited access condominium and, on the other hand, affording perpetual, unrestricted access to anyone affiliated with future independent development on adjacent land. I think the more reasonable conclusion and interpretation of the easements is that if the expansion parcels were not added to Harbour Landing, the easements intended to facilitate the expansion would expire.
Lastly, the majority fails to respond to the defendants' argument that a literal reading of the the language of article IIIa of the declaration leads to absurd results. As the defendants properly note, the plain meaning rule does not apply when following the apparent meaning of the text would "yield absurd or unworkable results...." (Internal quotation marks omitted.) Sikorsky Aircraft Corp. v. Commissioner of Revenue Services, 297 Conn. 540, *306 547, 1 A.3d 1033 (2010). As I previously have indicated, the plaintiff's interpretation of the easements leads to absurd results when read in conjunction with the provisions in article V of the declaration, and in the bylaws, restricting the access of nonresidents to Harbour Landing. Taken together, those provisions would mean that while the declarant took pains to preserve the privacy and security of Harbour Landing, even to the extent of limiting the residents' right to invite their own guests into the condominium, it simultaneously carved out an easement granting anyone associated with any independent developments it might build on the expansion parcels permanent, unlimited access to and through Harbour Landing.
The plaintiff's interpretation of the declaration also leads to absurd consequences when considered from a financial perspective. The statutory scheme governing the formation of expandable condominiums is designed to provide for an equitable distribution of the costs of maintaining the common elements of a condominium. See, e.g., Virginia Report, supra, at p. 7 (emphasizing that, under model statute, when expandable condominiums were in fact expanded, common elements would be shared and common expenses jointly borne between owners of units purchased in different expansion phases). One potential problem is that if the initial phase of a condominium contains costly common elements such as a pool and clubhouse, but subsequent expansion phases do not include valuable common elements, then later phase purchasers may receive a windfall at the expense of the initial residents. The later buyers obtain an equal share of the pool and clubhouse, in this hypothetical, without having to pay a fair share of their construction. Similar problems arise when owners of one phase are saddled with expensive maintenance or service costs associated with a subsequent phase. Thus, the act requires that the declaration identify the method by which ownership of common elements will be allocated among units; General Statutes § 47-70(a)(6); the percentage of common expenses attributable to each owner; General Statutes § 47-70(a)(7); the precise land that may be added to an expandable condominium and the maximum number of units allowed thereon; General Statutes § 47-70(b)(4) through (8); and whether structures erected on the expansion parcels will be of compatible quality to those on the parcels of the initial phases. General Statutes § 47-70(b)(10). Under the declaration, if phases III through V had been added to Harbour Landing, residents of those expansion phases would have been required to shoulder their fair share of the costs associated with, e.g., maintaining the condominium's roads and gatehouse, and connecting to the condominium's utilities. Article II, § 7, and article XXVII of the declaration specifically provide, for example, that the unit owners will be responsible for the common expenses associated with water and sewer use, payable to the South Central Connecticut Regional Water Authority and to the town of New Haven, respectively. Under the interpretation of the easements urged by the plaintiff and adopted by the trial court, however, residents of new, unrelated developments on the unexpanded phases III through V land can obtain these identical benefits without having to pay any of the associated costs. They can access the Harbour Landing gatehouse, inflict wear and tear on the condominium's roads, connect to the condominium's utility lines, draw water from the condominium's pipes, and dump their waste into the condominium's sewer lines, all at the expense of the unit owners of the *307 initial phases.[16] I do not believe that the act, which was drafted to protect condominium purchasers from self-dealing developers, permits a declarant to lock unit owners into this disadvantageous scheme in the absence of their specific, informed consent.
For all of these reasons, I respectfully dissent.
NOTES
[1] A declaration is an instrument recorded and executed in the same manner as a deed for the purposes of creating a common interest community. General Statutes § 47-220.
"[T]he declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations. ..." Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005).
The original declaration was recorded by Harbour Landing Development Corporation in the New Haven land records on July 19, 1983. The declaration was later amended three timesin 1986, 1988 and 2002. For convenience, we refer to the original declaration and all amended declarations collectively as the "declaration."
[2] An "`[e]xpandable condominium'" is "a condominium to which additional land may be added in accordance with the provisions of the declaration. ..." General Statutes § 47-68a (y).
[3] The association is a separate entity from the condominium. The Harbour Landing Development Corporation was the original declarant and created the condominium; the association is the unit owners' association for the condominium. The association is a nonstock corporation organized and existing under the laws of this state.
[4] The defendants appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
[5] When the original declaration was recorded in 1983, the declarant owned all five phases of land, but made only phase I subject to the condominium declaration. It later mortgaged phases III, IV and V to Bank of Boston Connecticut. Subsequently, it defaulted on its mortgage, and the bank foreclosed on those properties, together with the appurtenant easement rights. In December, 2006, as a result of the foreclosure, Harbour Pointe acquired title to phases III, IV and V.
[6] The defendants argue that "since the [association] is the grantee of the [e]asement, any ambiguity contained in the [d]eclaration must be construed against [Harbour Pointe], as successor to the ... [d]eclarant." Because the declaration is unambiguous, whether Harbour Pointe is a successor to the declarant is irrelevant.
Even if we were to conclude that the declaration language is ambiguous, we would not view the association as the grantee of the easements. Article IIIa of the declaration granted the easements "for the benefit of the remainder of the land described as [p]hase II, [p]hase III, [p]hase IV and [p]hase V. ..." Furthermore, the defendants do not explain why we should consider Harbour Pointe to be a successor to the declarant. The mere fact that Harbour Pointe owns land that previously belonged to the declarant does not compel us to conclude that Harbour Pointe is a successor of the declarant. Pursuant to § 47-68a (m), successors of a declarant include parties "who acquire fee simple title to condominium units or title to leasehold condominium units and who come to stand in the same relation to the condominium as their predecessors. ..." While the dissent points out that the unit purchasers played no role in drafting the declaration, Harbour Pointe also played no such role, and indeed, had even less voice than the association in drafting the declaration.
[7] The dissent states that "the [majority assumes] that a condominium declaration, like other types of contracts, is to be interpreted in the first instance solely based on the intent of the drafting parties, as expressed in the language of the declaration itself." (Emphasis added.) This mischaracterizes our approach to condominium declarations.
We do not begin to interpret a condominium declaration by reviewing only the language of the declaration to the exclusion of the language of the act. Condominium declarations must comply with the act, and we interpret them in accordance with contract principles. We acknowledge that "compliance with the ... act is a condition precedent to attaining condominium legal status. ..." (Internal quotation marks omitted.) Celentano v. Oaks Condominium Assn., 265 Conn. 579, 592, 830 A.2d 164 (2003). It is also well settled that "[b]ecause the [condominium] declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations, we apply the rules of contract construction to the interpretation of [the declaration]." Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. at 734, 873 A.2d 898; see also Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 313 n. 3, 984 A.2d 676 (2009).
The dissent, however, begins to interpret the declaration by reviewing the language of the act to the exclusion of the declaration. Although it concedes that "the resolution of this appeal hinges on the proper interpretation of the easement provisions of the declaration," the dissent, in fact, reviews the legislative history of the act without considering the language of the declaration. The dissent states that "before analyzing the declaration itself, I briefly consider the relevant provisions of the act. ..."
The defendants do not claim that the act is ambiguous. Nor do they claim that any ambiguity in the act entitles them to prevail. Their primary claim, which we address, is that the declaration is ambiguous and should be construed against Harbour Pointe.
There is no need to review legislative history. General Statutes § 47-70(d)(1) expressly permits a condominium declaration to reserve an easement "which land developers commonly convey ... for the purpose of bringing utilities ... or ... access to or through the condominium. ..." Moreover, the dissent tacitly admits that its approach is improper because it finds it necessary to provide an argument against construing condominium declarations in accordance with contract principles. In other words, the dissent argues that, if we must interpret the declaration by reviewing its language, we should not apply contract principles because condominium declarations are distinct from "more conventional forms of contracts. ..." This statement clearly departs from Cantonbury Heights Condominium Assn., Inc. Furthermore, the dissent mischaracterizes the easement reservation in the declaration as a "novel method of saddling the condominium buyers with ... unexpected and arguably unreasonable costs. ..." There was no finding by the trial court regarding the costs associated with the easements, and certainly, no finding that any such costs were unreasonable. Indeed, the public offering statement expressly disclosed that the units were subject to "easements for access and utilities ... in favor of the additional land as set forth in [a]rticle IIIa of the [d]eclaration."
[8] The trial court characterized the easement reservation in the declaration as "creat[ing] a condition subsequent that expressly limits the duration of the easement[s]." The question of whether the easements are determinable, defeasible or subject to condition subsequent is not before this court, and we do not address it at this time.
[9] The defendants also claim that the declarant failed to fully and accurately disclose the easements, as required by General Statutes § 47-71b, which provides in relevant part: "A public offering statement ... shall disclose fully and accurately the characteristics of the condominium and shall make known to prospective purchasers ... (5) the significant terms of any ... easements. ..." Because the public offering statement describes the units as subject to easements in favor of the additional land as set forth in article IIIa of the declaration, and because the declaration unambiguously describes easements that terminate only if the condominium adds the additional land, we conclude that the declarant properly reserved and disclosed the easements.
The defendants further claim that the declaration's easement reservation failed to comply with the requirements of the act. They cite § 47-70(b)(3), which provides in relevant part that an expandable condominium's declaration must contain: "A time limit, not exceeding seven years from the recording of the declaration, upon which the option to expand the condominium shall expire, together with a statement of the circumstances, if any, which will terminate that option prior to the expiration of the time limit so specified. ..." The declaration, however, specified the circumstances in which the expansion option would terminate prior to the seven year expiration datewhen "the remaining land is added to... [the] [c]ondominium." We conclude, therefore, that the trial court properly determined that the easement reservation complied with the requirements of the act.
[1] The association's president, David Potter, also was named as a defendant. References herein to the association and Potter jointly are to the defendants.
[2] Throughout this opinion, references to conflicts between unit owners and the declarant should be understood to include conflicts with developers, such as the plaintiff in the present case, who succeed in interest to the original declarant.
[3] The act does not use the terms "remaining land" or "expansion parcels," but I assume, arguendo, that the majority is correct in concluding that in the declaration these terms are used synonymously with "additional land."
[4] Alternately, the ambiguity of the statute might be said to arise not from its temporal indefiniteness but, rather, from the distinct logical forms under which it might properly be characterized. That is, the statement identifying as "`additional land'" "all land that may be added to the condominium"; General Statutes § 47-70(b)(4); might be represented either as: (1) identifying a particular plot of landan expansion phase; or (2) defining the set of land identified by a particular characteristicthat it may be added to a condominium. The latter may be, or may become, an empty set, whereas the former may not.
[5] General Statutes § 47-70(d) provides: "The property submitted to a condominium declaration pursuant to this chapter, other than a nonresidential condominium, shall be conveyed by the declarant to purchasers in fee simple absolute, subject only to covenants, easements and liens, limited as follows:
"(1) Property reservation which land developers commonly convey or dedicate to local bodies, public or private utilities or other easements, for the purpose of bringing utilities to or through the condominium, access to or through the condominium, and drainage to, from, and through other land in the vicinity of the condominium, and drainage to, from and through other land in the vicinity of the condominium;
"(2) Taxes and assessments imposed by any public body having authority to assess and tax property, or by a property owners' association, which under law constitute liens before they are due and payable;
"(3) Mutually beneficial property restrictions which would be enforceable by other owners in the subdivision or project of which the condominium is a part for more than five years after the first declaration in a planned project. Such restrictions shall not give declarant or any other person more power per unit owned than that which is proportionately equal to his fraction of the number of similar units planned or constructed in such subdivision or project, and the property shall not be subject to leasehold or reversionary interest." (Emphasis added.)
[6] Indeed, the fact that the final portion of § 47-70(d)(1) discussing drainage "to, from and through" is repeated twice, verbatim, suggests that this draft of the statute may have wanted some additional refining.
[7] It also is unclear whether the second half of the sentence, beginning with the phrase "for the purpose of bringing," modifies only "other easements" or also "local bodies, public or private utilities. ..." General statutes § 47-70(d)(1). That third source of ambiguity is not relevant for present purposes, however, because in either case the phrase does modify the "other easements" language relevant to the Harbour Pointe development.
[8] General Statutes § 47-74b (a) provides in relevant part: "Except for covenants, liens and easements permitted by subsection (d) of section 47-70, any grant or reservation made by or pursuant to the condominium instruments, and any contract made by the declarant or by an association prior to assumption of control of the association by unit owners other than the declarant that provides for management, maintenance or operation of the condominium, or of any common elements serving the unit owners or available to them, shall expire not more than five years from the date of the recording of the original declaration, unless extended by vote of a majority of the unit owners other than the declarant. Any such grant, reservation or contract may be cancelled prior to its stated expiration date, or amended, notwithstanding any provision to the contrary therein, by the unit owners' association by vote of a majority of the unit owners other than the declarant...."
[9] General Statutes § 47-74c (a) provides in relevant part: "The declarant shall not retain ownership of, and lease or otherwise require payment for the use of the recreation facilities nor shall the declarant convey such recreation facilities to any person other than to the unit owners of the condominium served by such recreation facilities, which shall be common elements of the condominium within which they are located or which they serve. ..."
[10] General Statutes § 47-70(b) provides in relevant part: "(12) The name of the condominium shall include `an expandable condominium';
"(13) If under this subsection (b) a statement that there are no limitations, no termination of rights, no assurances given, or no maximum amount of land is designated, there shall also appear on the first page of the condominium declaration following the title, but prior to any text the words in letters which are conspicuously larger than used in the text: `Warning this is an expandable condominium in which there is no assurance or limitation on (hereafter specify the reserved power).' The same words shall conspicuously appear on purchase agreements for units subject to this declaration immediately above the purchaser's signature."
[11] The majority acknowledges this principle, quoting Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. at 735, 873 A.2d 898, for the rule that where contractual "language is ambiguous... [we] must construe those ambiguities against the drafter." Nevertheless, in footnote 6 of its opinion, the majority appears to suggest that any ambiguities in the declaration need not be construed against the plaintiff. The majority offers two rationales for this position, neither of which I find persuasive.
First, the majority suggests that the plaintiff, rather than the defendant, was the grantee of the easements, and thus is entitled to the benefit of any ambiguities. I disagree. Here, the declarant was, in essence, both the grantor and the grantee of the easements; it reserved for its own benefit an easement over phase I, which it owned but intended to sell to other parties, in favor of the other phases, which it owned and did not immediately intend to sell. See 15A Am.Jur.2d, Condominiums § 1(2000) ("[a condominium declarant] is a grantor that establishes or joins in the creation of a declaration of condominium"); Rock Lake Estates Unit Owners Assn., Inc. v. Lake Mills, 195 Wis. 2d 348, 373, 536 N.W.2d 415 (App.1995) (noting that declarant who reserved easement over condominium in favor of her adjacent parcel "is not the grantee of the adjacent property she claims is landlocked; she is the grantor" [emphasis in original]). The defendants' citation in their brief to Gager v. Carlson, 146 Conn. 288, 298, 150 A.2d 302 (1959), for the rule that "in the construction of an instrument creating an easement, ambiguous language, in a case of reasonable doubt, will be construed in favor of the grantee rather than in favor of the grantor," is, thus, inapposite. (Emphasis added.) Rather, this situation is governed by the rule that a "declaration of condominium and its amendments should be strictly construed to assure investors that what a buyer sees the buyer gets. ... Any ambiguity in a declaration of condominium must be construed against the developer who authored the declaration." 15A Am.Jur.2d, supra, at § 8.
Second, even if we were to assume that any ambiguities in the declaration are to be resolved against the declarant, the majority questions whether the plaintiff is a successor in interest to the declarant. It clearly is. The plaintiff acquired the phase III through phase V property from a successor to the Harbour Landing declarant. The plaintiff thus stands in the shoes of the original declarant. See Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. at 728-29, 735, 873 A.2d 898 (construing ambiguities in declaration against developer who acquired special declarant rights by quitclaim deed after bank acquired them from financially troubled declarant). The declaration must thus be construed against the plaintiff. Id.; see also Portfolio Financial Servicing Co. v. Gill Industries-Georgia, United States District Court, Docket No. 2:06-CV-60 TS, 2006 WL 1699610, *3 (D.Utah June 15, 2006) (construing ambiguities in security agreement against successor in interest to drafter); Life of America Ins. Co. v. Baker-Lowe-Fox Ins. Marketing, Inc., 316 Ark. 630, 636, 873 S.W.2d 537 (1994) ("`giving the [p]laintiff herein the benefit of the doubt, [the marketing agreement] is still ambiguous and must be construed against the drafter . . . and its successor in interest, the [p]laintiff herein' "). To hold otherwise would allow declarants to circumvent the statutory and common-law protections of condominium purchasers.
[12] Of course, this assumes that such easements are legal under § 47-70(d), a question I do not address.
[13] The majority contends that article V of the declaration "defines" the phrase "fully expanded" as meaning the addition of the maximum number of units permitted by the declaration, or 300 units on a 9.4174 acre site. I disagree. The declaration defines terms in article II, from which the term "fully expanded" is conspicuously absent. Article V merely provides that the maximum number of units permitted in the fully expanded development is 300. The sentence to which the majority points falls within a section of the declaration laying out the parameters of various features of the condominium. The clear intent of the sentence referred to by the majority is to inform buyers of the maximal potential size of the development. It never purports to serve as a definition.
[14] The declarant clearly knew how to create a perpetual easement when it chose to. Article IIIa of the declaration, the same article that establishes the presently disputed easements, begins by stating: "Declarant does hereby establish, create, dedicate and convey an easement in perpetuity in favor of the public to pass and repass on foot. ..." (Emphasis added.)
[15] General Statutes § 47-71b provides in relevant part: "A public offering statement, issued pursuant to section 47-74f, shall disclose fully and accurately the characteristics of the condominium and shall make known to prospective purchasers all unusual and material circumstances or features affecting such condominiums. The public offering statement shall include the following ... (5) the significant terms of any encumbrances, easements, liens and matters of title affecting the condominiums...." (Emphasis added.)
[16] The plaintiff provides no support for its claim that it would be under a common-law obligation to contribute its fair share of these costs. Even if there were such an obligation, there is no evidence in the record that it has offered such payment. The defendants would thus bear the costs of litigating the issue. Moreover, it is unclear how the parties would apportion the costs associated with sewer and water use. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2425524/ | 65 F. Supp. 2d 1279 (1997)
TAMPA PORT AUTHORITY, Plaintiff,
and
Westchester Fire Insurance Co., Intervening Plaintiff,
v.
M/V DUCHESS, In rem, and BT Straits, Inc., In Personam, Defendants/Third Party Plaintiff,
v.
Pilot Lambert W. Ware, Third Party Defendant.
No. 94-1727-CIV-T-23C.
United States District Court, M.D. Florida.
June 6, 1997.
*1280 *1281 Lance Sheldon Hamilton, Holland & Knight, LLP, Tampa, FL, for Tampa Port Authority, Body corporate and politic by and under the laws of the State of Florida.
Donald Lee Craig, E. Tyron Brown, Butler, Burnette & Pappas, Tampa, FL, for Westchester Fire Insurance Company, as subrogee of the Tampa Port Authority, et al. fka International Insurance Company.
Nathaniel G.W. Pieper, Lau Lane, Pieper, Conley & McCreadie, Tampa, FL, for BT Straits, Inc., M/V Duchess.
Margaret Diane Mathews, Anthony John Cuva, Akerman, Senterfitt & Eidson, P.A., Tampa, FL, for Lambert M. Ware, Pilot.
MEMORANDUM OPINION
JENKINS, United States Magistrate Judge.
This cause comes on for consideration of an admiralty matter brought pursuant to Rule 9(h), Fed.R.Civ.P. in connection with an allision on December 25, 1992 involving the vessel M/V DUCHESS ("DUCHESS") and the northwest corner of the Robert E. Knight Pier ("Pier") owned by the Tampa Port Authority ("TPA").[1]
TPA brings a claim of negligence against DUCHESS in rem and its owner, *1282 B.T. Straits, Inc. ("B.T.Straits"). Intervening plaintiff Westchester Fire Insurance Company ("Westchester") brings a subrogation claim against DUCHESS and B.T. Straits to recover insurance payments made to TPA in connection with the damage to the Pier. B.T. Straits and DUCHESS bring a third-party claim of negligence pursuant to Rule 14(c), Fed.R.Civ.P. against Lambert Ware ("Ware"), a Tampa Bay harbor pilot in command of the DUCHESS at the time of the allision.
On September 13, 1996, partial summary judgment was entered in favor of plaintiff TPA and Westchester against the DUCHESS as the vessel had not rebutted the presumption that a vessel colliding with a fixed object is at fault in an allision. The order granting summary judgment did not make any findings allocating fault among the various parties for the allision or resolving damages issues; nor did the order determine the cause of the allision. (Dkt.58)
A four-day non-jury trial was conducted on October 15 - 19, 1996. The parties then engaged in supplemental discovery as a result of certain matters occurring at the trial. The court reopened the evidence and received additional testimony and exhibits on January 16 - 17, 1997.[2]
Thereafter, the parties filed proposed findings of fact and conclusions of law and various memoranda, all of which have been considered by this court, in addition to the testimony and exhibits received at trial.
Pursuant to Rule 52, Fed.R.Civ.P., the following findings of fact and conclusions of law are entered.
Findings of Fact
1. Plaintiff, Tampa Port Authority (TPA), created under the laws of the State of Florida, owns and operates the REK Pier in Tampa Bay.
2. Intervening plaintiff Westchester, a corporation doing business in the State of Florida, was the property insurance carrier for TPA at the time of the allision.
3. In rem defendant DUCHESS is a U.S. flag registered oil tanker, measuring 672 feet long and 89 feet wide and capable of carrying cargo of up to 40,000 tons. When fully loaded, the draft is approximately 35 feet.
4. In personam defendant B.T. Straits is a corporation which owned the DUCHESS at the time of the allision.
5. Third party defendant Lambert Ware ("Ware") is a Tampa Bay harbor pilot who was in command of the DUCHESS at the time of the allision as a compulsory pilot as required by U.S. law and Coast Guard regulations.
6. On December 25, 1992 at 0130 hours, the DUCHESS struck the northwest corner of the Richard E. Knight (REK) Pier ("Pier"). The allision occurred while the vessel, fully loaded with cargo weighing approximately 37,000 tons, was being shifted from Berth 220 to Berth 226.
7. The DUCHESS sustained a three inch indentation in its bow as a result of the allision, which did not affect the seaworthiness of the vessel and was determined by a marine survey to be repairable at the next drydocking of the vessel. No claim for damages to the vessel is made in this case. Rather, the dispute in this case centers on what dock damage was caused by the DUCHESS and what damage pre-existed the allision.
8. Ware, a Tampa Bay harbor pilot with approximately 24 years experience, possessed all necessary Florida and Coast Guard licenses. He was very familiar with the Pier and its berths, including the condition of the Pier at the time of the allision. Ware had also piloted the DUCHESS on at least one other occasion.
*1283 9. Pilot Ware was assisted by the master of the vessel, Captain Herman F. Custin ("Custin"), licensed by the Coast Guard as a master in 1948 who had served as a ship captain since 1964.
10. The REK Pier is a concrete structure referred to as a "finger pier," approximately 900 feet long and 40 feet wide, which is owned and operated by the TPA in an area known as Hooker's Point, Cut D, a 400 foot wide channel which empties into Tampa Bay.
11. The Pier includes two berths: Berth 226 is on the north side of the pier and Berth 227 is on the south side of the pier.
12. The pier is used for five different terminal storage transfer facilities, four involving petroleum products and one a hydrous ammonia facility.
13. According to Steven L. Fidler ("Fidler"), TPA operations manager, approximately 400 vessels use the REK Pier annually resulting in approximately one and one-half billion dollars of revenue from this activity. (JX 113, 115)[3]
14. At the time of the DUCHESS allision, the outboard 100 foot section of the Pier was under repair pursuant to a project known as the "fender renovation project." However, the Pier was still being used for commerce during this construction period.
15. Both Ware and Custin were aware of the weakened condition of the Pier and the need to use extra caution in docking at the berths. In fact, Ware stated that the pilots nicknamed the concrete corner of the Pier, which did not have fendering, as "the can opener." He testified that the northwest corner was "a horror story waiting to happen for a loaded tanker of gasoline to be punched in the side" because there were no "double-hulled tankers back in those days and it would be easy to spill." (T1, p. 163)
The Maneuver
16. Prior to commencing the shifting maneuver, Ware met with the captain and the officers and was acquainted with the vessel's specifications. He had piloted the DUCHESS on at least one prior occasion.
17. During the entire shifting operation, Ware and Custin were on the bridge of the vessel, starboard side. Ware, as the compulsory pilot, gave the engine commands and steering orders.
18. The DUCHESS proceeded in a northerly direction from Berth 220 towards Berth 226 at a speed of two to three knots assisted by two tugs. Visibility was good and there were no unusual wind or weather conditions.
19. Ware received accurate and timely distances from the ship's officer stationed at the bow of the vessel throughout the maneuver. The tugs were also in good working order and followed the pilot's commands.
20. As was his custom in docking a vessel at Berth 226 from the south, Ware planned to stop the headway of the vessel to bring the bow due west of the pier. Using the tugs, the vessel would then be pivoted starboard and moved into the slip parallel to the berth.
21. However, as the DUCHESS drew even with the Pier the forward momentum continued. A 0122 a dead slow order was given by Ware. At 0124 the tug ORANGE was shifted to the stern. At 0126 the tug KINSMAN was shifted to the starboard bow and a stop engine order was noted in the vessel's bell book at the same time. (JX 78)
22. Although Ware testified that at 0133 he gave a full astern order when the DUCHESS was approximately 150 to 200 feet from the REK Pier, the full astern order was not entered in the bell book until 0135, the same time that the bow of the DUCHESS struck the northwest corner *1284 of the pier. However, Ware further stated that the engines were full astern and the DUCHESS was "dead in the water" when the bow of the DUCHESS hit the concrete corner of the REK Pier. (T1, p. 141) (JX 78)
23. Despite the discrepancy in the bell book, it appears that the full astern order was promptly executed by the ship's crew at 0133.
24. Ware was not aware of the impact until the officer on the bow advised Captain Custin and him of the allision.
25. In a written statement after the incident, Captain Custin stated that "[t]he Pilot's performance and comportment was observed to be beyond reproach, correct and professional in every respect, however, the casualty appeared to be due to an error in the Pilot's judgement [sic]". (JX 75)
26. Although the vessel had not lost its headway when the turning maneuver began, by the time it struck the Pier the full astern order had virtually stopped its forward momentum. While both the dock and vessel were damaged as a result of the allision, the DUCHESS had practically come to a halt at the time it made contact.
27. The U.S. Coast Guard's investigation of the allision resulted in a finding that Pilot Ware "was considered to be negligent in relying too heavily on the ship's engines in lieu of using the tugs alongside." However, it was considered a "minor incident because of the small amount of damage to the vessel's bow and the pier." Also, as Ware had no prior record, a letter of warning was issued in lieu of initiating a formal proceeding against his license. No findings of fault were made as to the vessel's master, officers or its crew or the two tugs. (JX 94)
28. The damage to the DUCHESS was slight, causing a three inch indentation about three feet from the stem approximately five feet above the waterline. (JX 78)
29. Pilot Ware testified that, in his opinion, the allision could have been avoided if he had received a faster response from the engine. Ware also stated that the damage would not have occurred if fendering had been on the corner of the pier. (JX 178)
30. Despite Ware's statement, there is no credible evidence that either the vessel's officers or crew acted improperly or negligently in carrying out the pilot's orders in a manner to cause or contribute to the allision.
31. Nor is there any credible evidence that the vessel's engines were defective or not properly maintained.
32. Although Ware testified that he gave a full astern order at 0133 which was not recorded in the engine bell book until 0135 (the point of impact), there is no evidence, in the form of expert testimony or otherwise, that the full astern order was not implemented in a timely manner.
33. Captain Custin stated that the third mate executes the order and then records it in the bell book. (T4, p. 91) Further, the master was able to view the tachometer on the wing of the bridge and could see that the engine orders were being promptly executed. (T4, p. 94)
34. As stated, the Coast Guard did not fault the master, officers or crew of the DUCHESS and found that Pilot Ware was the only participant in the docking operation at fault in the allision.
35. The pilot's failure to stop the headway of the vessel once it drew even with the Pier and began the turning maneuver towards Berth 226 was the sole cause of the allision between the DUCHESS and the northwest corner of the REK Pier. This failure was due to errors in Pilot Ware's judgment in not conveying proper orders to the vessel's engine room and the tugs to slow the speed of the DUCHESS as it drew even with Berth 226 and began pivoting towards the dock.
36. TPA personnel are supposed to stand by for all dockings and undockings at the REK Pier to record docking and *1285 undocking times and also to notify TPA of any damage to the pier or vessels.
Reports of the Allision
37. On December 25, 1992, Security Operations Officer Ralph Palmer ("Palmer") was on duty at the REK Pier.
38. Palmer's report of the DUCHESS allision makes no reference to any deck displacement. Palmer stated that the port side of the bow of the DUCHESS slightly struck the pier and that he could not pinpoint the damage because it was already under repair from prior damage by other vessels. (JX 20; JX 168)
39. Initially, Palmer had reported no damage to the dock. Steve Fidler, Palmer's supervisor, asked Palmer to explain the discrepancy in his findings but Palmer persisted in his view that he was uncertain what damage was caused by the DUCHESS but in any event it was minor. (DX 8, 9B, 21-22)[4] By memorandum dated February 1, 1993, Fidler found Palmer's actions to have been "unsatisfactory and inconsistent with accepted procedure" and this reprimand was placed in Palmer's personnel file. (DX 256)
The Condition of the REK Pier Prior to the DUCHESS Collision
40. Originally built in 1943 as a wooden structure with wooden pilings, the REK Pier was refurbished in 1968 with concrete pilings and a concrete deck. However, the wooden pilings were not removed but were reinforced with the concrete pilings. (JX 87)
41. In 1986 TPA received permission from the U.S. Army Corps of Engineers to construct a fendering system for the REK Pier with a permit expiration date of September 1986. (JX 97; T2, p. 235) However, for some reason which is not apparent from the record, this project was not undertaken at that time.
42. Over the years, the REK Pier, in particular the outboard end, had sustained damages from vessel impacts and had also deteriorated due to the passage of time.
43. The "fender renovation project" which was in progress on the date of the allision was pursuant to a contract between TPA and Durocher Dock & Dredge, Inc. (Durocher). The project was to consist of:
general construction of a foam filled fendering system for the existing REK (Richard E. Knight) Pier at the Tampa Port Authority, Tampa, Florida. In addition to providing the new foam filled fenders complete with anchor chains and hardware, the Work includes selective demolition, prestressed concrete bearing piles, cast-in-place concrete pile caps, concrete repair work, and fixed corner fendering.
(JX 17)
44. Gary Dupere ("Dupere"), a Gee and Jensen engineer, explained that Durocher was to repair some of the existing outer piles that had previously damaged by placing "pile jackets" around ten of the piles.[5] He further explained that the project
consisted of constructing a pile cap, which in this case was a larger pile cap, larger piece of concrete, to support the fenders and take the lateral loads, incorporate the bearing piles that were in there. And also on the outboard end, it involved constructing a U-shaped element to, again, incorporate the end of the structure supporting the fenders and providing lateral-load capacity.
(T1 - 48) With this design, existing inner pilings were to be retained with the original dock they supported.
45. Work commenced on this project in October 1992 for an agreed price of $1,668,995 which called for the work to be completed within 360 days. (JX 18) This work had not been completed as of December *1286 25, 1992 when the DUCHESS struck the northwest corner of the REK Pier.
46. In the year and a half preceding the DUCHESS allision two surveys were conducted of the outbound 100-foot section of the Pier by outside engineering firms at the direction of TPA.
47. Both of these inspections were due to a vessel impact which occurred in March 1991 and caused a transverse crack across the entire width of the REK Pier at the approximate 812 foot mark about 88 feet from the outboard end of the Pier.
48. A TPA dock damage report dated March 22, 1991, reported damage to the REK Pier occurring sometime during the prior several days and described the damage as follows:
Location at the 805' mark, string piece snapped off pins, concrete damage to face approximately 9 feet in length, 15 inches in width, and approximately 3-5 inches in depth. Concrete spalling and severe cracking along entire concrete pad seam. Western slab displaced upward approximately 1 inch. Damage is apparent across the full width of REK Pier.
(JX 176)[6]
49. Hector Pinion ("Pinion"), the security officer who prepared the report, stated that how the damage had occurred was unknown but the only vessel movement during the time frame of the accident was the shifting of the tug JAMES DANOS and the barge GREGORY from Berth 227 to 226. (JX 176).
50. Another security officer, Charles Alderman, prepared an activity report for March 17, 1991 reporting "[m]ajor dock damage" to Berths 226 and 227 at the approximate 810-foot mark location. (DX 24)[7]
51. Despite the extensive damage caused by this incident, TPA did not file a claim with its insurer. (T3, p. 52)
52. A TPA dock damage report dated April 19, 1991 (JX 15) stated that an unknown vessel had caused damage to Berth 226 consisting of a broken piling and missing fender at the 450 foot mark of Berth 226.
53. In April 1991 the engineering firm Greiner Inc. (Greiner) inspected 32 pilings at the mudline and pile-bent connections at the outbound 100-foot end of the Pier and found some damage to 17 pilings in varying degrees, mostly at the last four to five feet of the Pier, but no damage at the mudline. The Greiner report noted that all of the damage or deterioration "existed prior to the most recent dock damage" due to the degree of corrosion noted on the reinforcement rods. It concluded that in light of renovation projects scheduled in the future, a survey of all the pier pilings should be conducted as the "conditions noted in the 32 piles inspected are likely to exist throughout the pier." (JX 12) Although Smith found some damage to what he called a "construction joint" 812 feet from the beginning of the Pier (apparently the damage caused by the unknown vessel impact in March 1991), he saw no recent damage to the pilings under the pier. However, he thought that some of the pilings 30 to 40 feet from the end of the pier needed repairs. (JX 12, 176)
54. Another engineering firm, Gee and Jensen, surveyed the outbound 100 feet of the Pier in December 1991. Its findings generally agreed with the Greiner report but noted some signs of recent damage. In addition, the Gee and Jensen survey noted that at the approximate 812-foot mark (referred to as "STA 8 + 12"), "it appears that vessel impact has caused the *1287 concrete deck slab and edge beams to be crushed and broken-up at a construction joint" and "the edge beams on both the north and south sides of the pier are severely damaged at numerous locations, with large sections of concrete being broken away and the exposed reinforcement corroding, and in some cases broken away due to the impact." (JX 13, p. 2)
55. Dupere, the Gee and Jensen engineer in charge of the inspection, recommended that the bollards (large cleats) at the severed end of the Pier not be used until the repairs could be made but TPA officials rejected that suggestion based on their insistence that the Pier remain in use. (T2, p. 45) Dupere's report stated that the Pier, in its present state, was not in a "life threatening condition" and that the repairs caused by the impact could be addressed as part of the fender renovation project as long as those repairs are completed in a timely manner. However, it was noted that "... should a vessel again impact the end of the pier or sudden wind gusts cause a high mooring line load on an end bollard, additional damage could result, and possibly even a localized failure could occur at the outboard end of the pier." (JX 13 p. 2).[8]
56. On August 26, 1991, the Tampa Bay Pilots Association wrote a letter to TPA advising of concern over the condition of the REK Pier. The letter noted that the pier was cracked across the entire width and there was insufficient fendering (tires). (JX 82)
57. Pilot Lambert Ware knew of this condition as did various linehandlers who worked at the Pier. Both Steve Fidler and Carl Fielland, TPA officials, knew of this condition as well.
58. Additional evidence was presented on January 16 and 17, 1997 concerning whether the REK Pier experienced another vessel impact within days of and prior to the DUCHESS allision.[9]
59. Testimony was received from line handlers Jerry Sutter ("Sutter"), David Desautell, and David Desautell's wife, Regina Desautell, who sometimes assisted him with his work. Sutter testified he observed the stern of a barge stuck under Berth 226 (referred to as "GATEX" by some witnesses) at the REK Pier during daylight hours on December 24, 1992. Sutter testified that the barge was stuck in the vicinity of the crack which developed along the construction joint at the 810 foot mark of the REK Pier and he observed that the concrete deck had been raised about three inches due to the impact. (EH1, p. 124-132) Sutter testified that he encountered his sister, Regina Desautell, and her husband, David Desautell (another line handler), after he left the REK Pier and they returned with him to see if they could assist in freeing the barge. On arriving at the Pier, the barge was no longer stuck under the Pier and was at Berth 223. (EH1, p. 171-173)
60. However, TPA records show no record of any such incident and the vessel movement records for Berths 226 and 227 *1288 for this period of time (and several days preceding it) do not show a barge fitting the description provided by Sutter as having docked at Berth 226 or any other location where it could have been wedged under the REK Pier. (EH2, p. 45-49; 72-77; 81-85).
61. Sutter was obviously mistaken about the date when he observed this barge incident. It is possible that the barge incident Sutter witnessed was the impact in March 1991 which caused the transverse crack across the deck slab of the Pier and associated damage. This conclusion is reinforced by the testimony of Lawrence Hillman, a TPA security officer, who reported the damage from that incident. Hillman testified that a line handler named "Dave" (Dave Desautell) told him about the damage caused by the tug and barge. (EH2, p. 86-88)
62. While the evidence does not substantiate defendants' claim of dock damage close in time to the DUCHESS allision, the preponderance of credible evidence does establish that the transverse fracture of the Pier, which occurred in March 1991, seriously compromised the structural integrity of the outbound section of the Pier. This damage pre-existed the DUCHESS allision.
63. The damage caused by the DUCHESS was relatively minor in comparison to the already seriously deteriorated condition of the Pier due to prior vessel impacts and general wear and tear on the 50 year-old structure.
Evidence as to Force of Impact and Angle of Approach
64. Both plaintiff and defendants presented expert testimony as to the probable force of impact on the Pier caused by the DUCHESS allision.
65. TPA's witness, George Petrie ("Petrie"), analyzed the force necessary to produce the three-inch dent in the bow plating of the DUCHESS and concluded that a force between 410,000 pounds and 640,000 pounds would be required depending on the direction of the force. (T1 - 209)
66. Charles A. Manning, Jr. ("Manning"), called by the DUCHESS and its owner, conducted a similar analysis but concluded that a force of between 330,000 and 410,000 pounds would be necessary to produce the three-inch indentation in the bow of the DUCHESS. (T3, p. 115)
67. The different assumptions made by Petrie and Manning about the angle of approach to the Pier (and the speed of the vessel) account for the differences in their opinions as to the force of impact. This court finds the testimony of Manning more credible.
Damages Estimates and Repairs Made After the Collision
68. After the DUCHESS allision, the outboard section of the REK Pier was inspected by various representatives of the parties. At the request of TPA, Gary Dupere of Gee and Jensen conducted an on-site inspection on January 8, 1993 with a follow-up underwater inspection on January 12, 1993.
69. Dupere concluded that the section of the Pier undergoing renovation by Durocher had suffered additional damage due to the DUCHESS allision.[10] His report noted that of the 26 piles supporting the severed outboard end of the Pier, 20 were planned to be reused in the modified pier structure. (JX 27) Dupere admitted, however, that all but three of the 26 piles had sustained damage at one time or another. (T2, p. 169) His report noted that 17 of the 20 piles had suffered recent damage. He also found that the six piles scheduled to be removed on the outer end of the Pier had also sustained more damage.
70. Dupere opined that the impact caused by the DUCHESS allision had caused the severed or outboard 90 feet of the Pier to be rotated counterclockwise, *1289 displacing the northwest corner of the Pier to the south and the inboard section of the Pier to the north and causing a skewed alignment. However, he noted that some cracking in the deck slab inboard of the severed end was probably due to vibrations from the pile drivers used by the contractor. While recognizing that the original design might be salvaged with addition of more pile caps to repair the additional damage, Dupere rejected that "band-aid" approach and recommended that the entire outboard severed end of the Pier be demolished and replaced with new pilings and deck. (JX 121)
71. Dupere submitted a new design on behalf of Gee and Jensen for the renovation project which essentially called for replacing damaged pilings with new pilings and rebuilding the entire outer 100 feet of the Pier including the concrete deck. His estimate for this work was approximately $214,655, but Dupere recognized that the contractor might have additional costs such as materials which could not be used in the new design and administrative costs already expended. (JX 30)
72. After reviewing the Gee and Jensen report, TPA agreed with its recommendation and obtained a bid from its contractor, Durocher.
73. TPA determined that allowing Durocher to do the additional repair work was more economical because submitting the additional work to the bid process would delay the repairs. The Port Engineer, Carl Fielland, testified that "with the premise of keeping the pier in operation, there was no more efficient manner to complete the work." (T2, p. 228)
74. However, it is uncontroverted that TPA's decision to proceed with the renovation project on a piecemeal basis so as to allow the Pier to remain in operation resulted in more time by Durocher and thus higher costs. (T2, p. 175)
75. Durocher's initial bid for the new design was $668,122, a figure which Gee and Jensen disputed in a letter to TPA dated February 23, 1993 recommending that a detailed quantity and cost breakdown be obtained from the contractor. In addition to noting that "[t]he cost as proposed exceeds $138/SF for the pier work, and a major portion of the pier is already in the original contract price," the letter stated that the 122 additional days of work estimated by the contractor "is about twice as much time as should be required, considering the scope of the work already intended to be accomplished for the end of the pier" but recognized that some construction downtime needed to be included to allow for vessels being at berth. (JX 33)[11]
76. Durocher and TPA subsequently entered into a modification agreement in April 1993 known as Change Order 3. The modification was the subject of negotiations between TPA and the contractor which resulted in eliminating $124,000 from the contractor's bid and a final price of $522,759 for the additional work of demolishing and rebuilding the outer section of the Pier. (JX 37; JX 122).
77. TPA paid Gee and Jensen a total of $22,062 for the 1993 inspection and design work: $5,922 for the damage report, $13,140 for drawings and geotechnical services, and $3,000 for services during construction. (JX 141) Additionally, TPA paid $720 to Amdiver, a diving firm which assisted Gee and Jensen with its survey. (JX 100) (T3, p. 46)
78. Charles Harden ("Harden"), a Tampa marine surveyor and appraiser with extensive experience and an engineering background, inspected the DUCHESS and the REK Pier at the request of the owner of the DUCHESS. Harden found very minor damage to the bow plating on *1290 the starboard side of the bow of the vessel, an area about three inches deep and 16 by 20 inches in area. The damage did not affect the seaworthiness of the vessel. (T4, p. 11-13)
79. On January 11, 1993, Harden and Leroy Pate ("Pate"), a licensed engineer, inspected the outer section of the Pier by boat. They found some crushing-type damage to the northwest corner of the Pier which had caused some of the concrete to fall away. Harden observed that the Pier was in "very poor condition," approaching the end of its useful life. Twenty-two of the 36 piles in the outer 90 feet of the Pier showed substantial damage. Only nine of the 22 piles showed signs of recent damage in addition to old damage. Six of the concrete pile caps also showed signs of recent damage. There were some fresh cracks at the fracture of the deck slab and the junction of the concrete slab and the spandrel beam which connects the pilings and provides lateral support. (T4, p. 24-28)
80. Harden estimated the costs to repair the damage caused by the DUCHESS as approximately $145,000 based on replacing nine piles, repairing six pile caps, and associated minor repairs. Of this amount, $25,000 was for repair of the crushed concrete at the northwest corner of Berth 226. (T4, p. 19-20)
81. Leroy Pate, who inspected the Pier with Harden, observed the fracture across the entire width of the Pier just past the 810-foot mark which ran from "side to side and top to bottom" and had displaced the deck an inch or so. He, like other witnesses, confirmed that the fracture was not recent damage because the re-bar was quite rusty and had apparently been exposed to the elements for some time.
82. This fracture, in Pate's view, caused the outer portion of the Pier to be "greatly weakened" along with the other damage from wear and tear and other vessel damage prior to the DUCHESS allision. Because of this, the outer end was in such bad shape that it would not be able to absorb any lateral or rotational impacts from a vessel. Pate agreed with Harden's identification of the piles and pile caps which showed recent damage attributable to the DUCHESS allision. He saw no signs of rotational damage, however, caused by the DUCHESS allision. (T3, p. 144-168); (JX 89)
83. Another defense witness, Charles A. Manning, Jr., agreed that the structural integrity of the REK Pier had been compromised prior to the DUCHESS allision, including damage to the spandrel beams which are lateral supports for the deck and connect the pilings. (T3, p. 95-96)
84. Both Manning and Harden thought that the DUCHESS allision had caused some rotational damage to the Pier. (T3, p. 99; T4, p. 17-39) However, Pate found no signs of rotational damage. (T3, p. 144-168). Nor did Ralph Palmer, who was the security officer first on the scene after the allision. All witnesses agreed that the damage caused by the DUCHESS was relatively minor in comparison to the already badly deteriorated condition of the outer end of the Pier.
85. Reuben Clarson ("Clarson"), a licensed engineer with experience in marine construction, was retained by GAB Business Services, the adjuster for Westchester (TPA's property insurance carrier), to review the Gee and Jensen report assessing the damage caused by the DUCHESS allision and to determine the reasonable costs for the repair work recommended by the engineering firm.
86. When Clarson visited the REK Pier in October 1993, the new construction was basically finished. He was told to assume that there were no time constraints and no ship interference in determining the repair costs since the policy was issued on a blanket replacement basis. (JX 61) Based on that assumption, he determined that the reasonable cost for the repairs recommended by Gee and Jensen was $390,335. (T3, p. 64; JX 161) Clarson's original estimate was $242,996 but he revised this estimate upwards after receiving additional information from TPA and *1291 the contractor. (T3, p. 70; JX 52) His estimate did not take into consideration any deductions for depreciation or betterment. (T3, p. 71)
87. After negotiations, TPA agreed to submit a claim for $338,117 which was calculated by subtracting $75,000 (the amount of the deductible on the policy) from $413,117, the total figure recommended by Clarson which included his estimated cost of repairs of $390,335, plus the $22,062 Gee and Jensen design fee and the $720 fee paid to Amdiver for the diving work.
88. Westchester subsequently paid this amount to TPA reserving a right of subrogation. (JX 67-68; JX 147)
89. The preponderance of credible evidence demonstrates that the deck fracture at the 812 foot mark and the failure of the reinforcing steel at that section was not caused by the DUCHESS allision. Nor was the outer section of the Pier significantly damaged as a result of this allision. Further, practically all of the support pilings at the outboard end of the REK Pier had pre-existing damage to one extent or another; some pilings which showed recent damage also showed significant preexisting damage. Other than additional damage to some of those pilings or pile caps, the only new damage caused by the DUCHESS allision was the crushing of the concrete at the northwest corner of Berth 226.
CONCLUSIONS OF LAW
This court has jurisdiction over the subject matter of this action and the parties pursuant to Title 28, United States Code, section 1331.
In this action, the Tampa Port Authority has sued BT Straits in personam and Duchess in rem to recover the costs of repairs to the Pier. BT Straits and Duchess filed a third-party action against Pilot Ware for indemnification.
In admiralty law, when a moving vessel collides with a fixed object, there is a presumption that the moving vessel is at fault and this presumption gives rise to a prima facie case of negligence against the vessel. This presumption applies to the operator as well as the vessel and to "all parties participating in the management of the vessel at the time of the contact." Woods v. U.S. Dept. of Trans., 681 F.2d 988, 990 (5th Cir.1982); see also Merrill Trust Co. v. Bradford, 507 F.2d 467, 471 (1st Cir.1974).
This presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The vessel must show that it was without fault, that the allision was the fault of the stationary object, or was the result of inevitable accident. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 (5th Cir.1977), cert. denied, Furness Withy & Co. v. Bunge Corp., 435 U.S. 924, 98 S. Ct. 1488, 55 L. Ed. 2d 518 (1978) (footnote and citations omitted).
A. Negligence of Pilot Ware
The evidence of Ware's fault is substantial. As the pilot, he was responsible for control of the vessel at all times while it was underway in navigable waters. Fla. Stat. § 310.141. Ware failed to turn the DUCHESS into the slip in a timely manner. It is apparent that Ware's negligence was the contributing cause of the allision.
B. Negligence of DUCHESS
The vessel is liable in rem for the negligence of a compulsory pilot. Amoco v. M/V Montclair, 766 F.2d 473, 476 (11th Cir.1985). As Ware was a compulsory pilot and there is no argument that he was piloting a "dead ship," the DUCHESS is liable in rem for Pilot Ware's negligence.[12]
*1292 C. Liability of BT Straits
The negligence of Pilot Ware, while imputed to the vessel, may not be imputed to the vessel's owner, captain, or crew absent evidence of negligence on their part. While the presumption of fault in an allision applies to all those involved in the management of the vessel at the time of the allision, see, e.g., Woods v. United States Dept. of Transp., 681 F.2d 988, 990 (5th Cir.1982), the showing made by the vessel owner has overcome the presumption of fault.
The master of a vessel with a compulsory pilot "... is entitled to assume that the pilot is an expert on local conditions and practices, until it becomes manifest that the pilot is steering the vessel into danger." Avondale Indust., Inc. v. Int'l Marine Carriers, Inc., 15 F.3d 489, 493 (5th Cir.1994) (citation omitted). There is no evidence that the danger was so imminent that Captain Custin was negligent in failing to intervene and take the conn from Pilot Ware. Further, a master should not displace the pilot unless the pilot is intoxicated or manifestly incapacitated. Union Shipping & Trading Co. v. United States, 127 F.2d 771, 775 (2nd Cir. 1942); Dampskibsselskabet Atalanta A/S v. United States, 31 F.2d 961, 962 (5th Cir.1929). Ware was neither intoxicated nor manifestly incapacitated.
There is also no evidence that the crew was negligent. The preponderance of the evidence shows that the crew timely responded to Pilot Ware's commands and gave him correct information. Moreover, there is no evidence that the Duchess' engines were defective.[13]
Thus, B.T. Straits is not liable in personam for the damage inflicted on the REK Pier as a result of the DUCHESS allision. See Complaint of Chevron Transport Corp., 613 F. Supp. 1428 (M.D.Fla.1985), aff'd in part and rev'd in part, 832 F.2d 1540 (11th Cir.), cert. denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604 (1988).
D. Negligence of TPA
The order granting partial summary judgment in favor of TPA and Westchester rejected defendants' argument that TPA's failure to maintain the condition of the Pier and warn of the condition caused the allision. (Dkt.58) These conclusions are incorporated herein.
Defendants' reliance on Phillips Petroleum Co. v. Trinidad Corp., 1979 A.M.C. 1352 (M.D.Fla.1978) is misplaced.
The court in Phillips Petroleum found that the plaintiff's negligent maintenance of a breasting dolphin proximately contributed to its claim for damages. See id. at 1356. However, the court further recognized that the presumption of fault against a vessel that strikes a moving object is inapplicable when the stationary object is a "marine structure, the function and design which is to buffer the impact of a docking vessel." Id. at 1357 (citation omitted).
The facts of this case are more akin to that in Georgia Ports Authority v. The Atlantic Towing Co., Compania Anonima Venezolana De Navegacion, Case No. CV482-79, 1983 WL 905 (S.D.Ga. May 20, 1983). There, the court found that the plaintiffs fender system's disrepair was open and obvious and, thus, the plaintiff did not breach its wharfinger duty of care. Id. at *9. The court relied on Seaboard Airline R. Co. v. Pan American Petroleum & Transport Co., 199 F.2d 761 (5th Cir. 1952), in which the Fifth Circuit stated:
When, as the record shows to be the case here, the conditions claimed to be unlawful or negligent are entirely passive and have existed for many years to the knowledge of the moving vessel; when, too, the evidence is, as here uncontradicted that, while these conditions to [sic] tend to make the passage more difficult than if they did not exist, a *1293 passage can be safely made under the conditions if due care is exercised; there is no basis in the record even for a division of the damages in favor of the actively negligent moving vessel, much less for awarding it full damage....
Georgia Ports Authority, 1983 WL 905, at *9.
Defendants were aware of the deteriorating condition of the Pier as well as its lack of fendering. Further, the evidence does not support a finding that had the Pier been in better condition, the allision would not have occurred. Thus, TPA did not breach its wharfinger duty of care and is not comparatively negligent.[14]
E. Allocation of Fault
Where two or more parties are at fault in causing property damages in a maritime collision, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault. Liability may be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault. United States v. Reliable Transfer, 421 U.S. 397, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975). The only two parties at fault in the allision are the compulsory pilot, Lambert Ware, and the DUCHESS in rem. Assuming the Reliable Transfer rule applies in a situation of imputed negligence (and the parties have not argued otherwise), each is responsible for fifty percent (50%) of the damage caused by the allision.
F. Measure of Damages
Plaintiff TPA contends that it is entitled to the costs of repairs plus twenty percent as well as attorney fees pursuant to its tariff and regulations. Westchester contends that it stands in the shoes of TPA as subrogee and, therefore, is entitled to the same relief.
The relevant provisions of TPA's tariff and regulations state:
All vessels, their owners, charterers and their agents, and all other users of the facilities of the Tampa Port Authority further covenant and agree to indemnify and hold the Tampa Port Authority harmless from any loss, cost or expenses whatsoever directly or indirectly resulting or occasioned to, or imposed upon the Tampa Port Authority ... (2) by damage to or destruction of any Tampa Port Authority facility or any part thereof, ... caused by or attributable to the negligent acts or acts or an omission or omissions of vessels, their owners, charterers and their agents, and all other users of the Port facilities.
They further provide:
Obligations of the vessels, their owners, charterers and their agents and all other users of the facilities of the Tampa Port Authority under this subparagraph shall not only cover the losses and damages assessed or incurred but also such costs and expenses as those entailed in preparation for litigation or in settling or disposing of threats of litigation, including such items as fees of attorneys, parties (and their representatives) and witnesses; the employment of expert witnesses and the fees and charges paid to them; court costs and all of such costs and expenses incurred in preparation for trial, and the trial of the case or cases, and the appeal or appeals thereof, including the printing of Briefs and Records.
The expense of replacement or repair will be billed against the user (or users *1294 jointly) for such damage as herein stated as costs plus twenty percent (20%).
(JX 126, 127).
Defendants contend: 1) plaintiffs did not adequately plead a claim for an additional twenty percent of the cost of repair and attorney fees under the tariff and regulations; 2) defendants did not have actual or constructive notice of the tariff and regulations; and 3) the provisions in the tariff and regulations substantially conflict with established principles of federal admiralty law.
1. Waiver Argument
a. Plaintiffs' Failure to Specifically Plead
TPA and Westchester argue that, despite defendants' contentions, defendants had adequate notice of plaintiffs' intention to claim these damages and fees. TPA contends that it was not required to specifically refer to the tariff and regulations in its amended complaint to put defendants on notice. Moreover, TPA claims that defendants were put on notice prior to the commencement of this litigation because on December 28, 1992 TPA sent a letter to Captain Custin, the Master of the M/V Duchess, which stated that the TPA regulations would apply to the property damage caused by the allision. (JX 21) Further, TPA and Westchester point out that the issues regarding the applicability of the tariff and regulations were raised in the pretrial stipulation submitted in May 1996.
Pursuant to its amended complaint filed November 8, 1994, TPA alleged that it was entitled to damages plus interest, prejudgment interest, costs, and attorney fees. (Dkt.12, p. 5) TPA specifically alleged damages, including lost revenue, amounting to $737,719.62. (Dkt.12, p. 3) Westchester, in its intervening complaint filed November 9, 1994, alleged damages plus interest, prejudgment interest, costs and attorney fees. (Dkt.13, p. 6) Neither the amended complaint nor the intervening complaint specifically referred to TPA's tariff and regulations.
In the pretrial stipulation filed May 10, 1996, both TPA and Westchester sought as elements of damages repair costs plus twenty percent as well as attorney fees. (Dkt.48, p. 8) Among the issues of law that remained to be determined were the applicability of the TPA regulations and tariff in determining damages as well as plaintiffs' entitlement to attorney fees. (Dkt.48, p. 12)
While TPA did not specifically cite to the authority under which it was seeking damages and attorney fees, in late December 1992, defendants BT Straits and M/V Duchess were on notice of TPA's claim that the regulations and tariff provided for damages and attorney fees. Furthermore, these issues were in the pretrial stipulation filed five months prior to trial. Moreover, TPA is not attempting to bring a separate claim for violation or breach of the tariff and regulations. Instead, TPA and Westchester merely allege that the tariff and regulations are the source for calculation of plaintiffs' damages.
None of the defendants have shown that they have suffered any prejudice by the inclusion of these issues. All of the parties have filed extensive briefs on the issues. Therefore, defendants had adequate notice of plaintiff's intent to rely on the tariff provisions to establish damages.
b. Notice Argument
Defendants also contend that they did not have actual or constructive notice of TPA's tariff and regulations. TPA and Westchester respond that defendants had constructive notice of the tariff because the provisions at issue were required by law to be included in the tariff and filed before the Federal Maritime Commission (F.C.).
Title 46, United States Code Appendix, section 816 provides:
every other person subject to this chapter shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering or property....
*1295 Under the Shipping Act, a tariff is
a publication containing the actual rates, charges, classifications, Tariff Rules, regulations and practices of a common carrier, conference of common carriers, or marine terminal operator. The term "practices" refers to those usages, customs or modes of operation which in any way affect, determine or change the transportation rates, charges or services provided by a common carrier or marine terminal operator, and, in the case of conferences, must be restricted to activities authorized by the basic conference agreement.
46 C.F.R. § 514.2. The filing of a tariff before the F.C. gives the public constructive notice of only those terms required to be filed by law. Port of Tacoma v. SS Duval, 364 F.2d 615, 617 (9th Cir.1966); New Zealand Kiwifruit Marketing Bd. v. City of Wilmington, 806 F. Supp. 501, 503 (D.Del.1992). However, not all provisions of a tariff are required to be filed; for instance, limitations on liability provisions are not required to be filed. Port of Tacoma, 364 F.2d at 617. Additionally, the mere filing of a tariff before the F.C. does not constitute approval. Maryland Port Admin. v. SS American Legend, 453 F. Supp. 584, 592 (D.C.Md.1978).
While TPA and Westchester contend that the provision regarding damages and attorney fees contained in the tariff constitute "charges" and were therefore required to be filed with the F.C. pursuant to 46 U.S.C.App. § 817, they have not cited this court to any authority supporting their position. This court is not persuaded that the damages and attorney fees provisions contained in TPA's tariff are the equivalent of "charges" under the Shipping Act. The provisions regarding attorney fees and damages were not required by federal law to be filed and, as such, defendants did not have constructive notice of the tariff provisions.
Neither TPA nor Westchester established that defendants had actual notice of the tariff prior to the December 1992 allision. Because plaintiffs have not shown that defendants had either constructive or actual notice of the tariff, the tariff and its provisions are not applicable and do not control the issue of damages in this case.
However, TPA and Westchester also argue that TPA's regulations, which contain the same provisions regarding damages and attorney fees, constitute state statutory law and, thus, defendants' ignorance of the law is no excuse.
The Hillsborough County Port District (HCPD) and Tampa Port Authority were established pursuant to Fla.Law Chap. 84-447. TPA is an independent special district as defined by Fla.Stat. § 189.403. See Hillsborough County v. Tampa Port Authority, 563 So. 2d 1108, 1109 (Fla. 2d DCA 1990). Plaintiffs argue that TPA's regulations were promulgated pursuant to the authority granted in Fla.Law Chap. 84-447.
"[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law." State v. Jenkins, 469 So. 2d 733, 734 (Fla.1985) (citation omitted). Nonetheless, it is undisputed that TPA's regulations are not codified in the Florida statutes. While the cases cited by plaintiffs have upheld certain acts taken by administrative bodies such as port authorities, see Jacksonville Port Authority v. Alamo Rent-A-Car, 600 So. 2d 1159 (Fla. 1st DCA 1992), Petchem, Inc. v. Canaveral Port Authority, 483 So. 2d 527 (Fla. 5th DCA 1986), Tampa Port Authority v. Deen, 179 So. 2d 416 (Fla. 2d DCA 1965), Clark v. Kreidt, 145 Fla. 1, 199 So. 333 (1940), none of these courts found that regulations promulgated by an administrative body constitute state statutory law.
Even assuming arguendo that the TPA regulations constitute or are the equivalent of state statutory law, the regulations are still subject to preemption as discussed below.
c. Preemption Argument
Defendants contend that the provisions regarding attorney fees and damages contradict *1296 federal admiralty law and therefore are preempted. TPA and Westchester state that the regulations are not subject to preemption because the regulations do not contradict federal admiralty law and, further, involve matters of purely local concern.[15]See, e.g., Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1422 (9th Cir.1990), cert. denied, 504 U.S. 979, 112 S. Ct. 2956, 119 L. Ed. 2d 578 (1992) ("the general rule on preemption in admiralty is that states may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law....").
The general rule is that the prevailing party's attorney fees are not recoverable in admiralty cases. Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir.1980). The exceptions to this rule are: 1) when there is statutory authority providing for attorney fees; and 2) when the non-prevailing party has acted in bad faith. See id. at 730-71, n. 5.
TPA and Westchester stipulate that they are not attempting to seek fees under the bad faith exception. Instead, they contend that the TPA regulations providing for attorney fees fall within the statutory authority exception to the general rule.
In determining whether state law may be used in conjunction with federal law, the court must determine: 1) if the state law conflicts with substantive maritime law; and 2) if the state law affects remedies peculiar to the maritime jurisdiction. Garan v. M/V Aivik, 907 F. Supp. 397, 399 (S.D.Fla.1995). If the answer to either one of the foregoing is in the affirmative, the state law conflicts with federal law and is not applicable. Id.
In Garan, the court found that the offer of judgment statute (Fla.Stat. § 768.79) conflicts with the American Rule whereby the parties are responsible for paying their own fees because "the Florida substantive rule impermissibly imposes an additional obligation on the parties in direct conflict with long-standing federal maritime common law." Garan, 907 F.Supp. at 400. The court further rejected use of Florida law as a supplement to federal maritime law because "such applications are only valid when federal statutory or common law is silent on the issue" and "[t]he federal law regarding the award of attorney's fees in the maritime context is clear and directs each side to pay its own fees." Id. (citation omitted). See Also Sosebee v. Rath, 893 F.2d 54, 57 (3d Cir.1990) (Virgin Islands statute providing for attorney fees directly conflicted with federal maritime law).
The Garan court further rejected the defendant's reliance on Steelmet, Inc. v. Caribe Towing Corp., 842 F.2d 1237 (11th Cir.1988), as well as Blasser Brothers, Inc. v. Northern Pan-American Line, 628 F.2d 376 (5th Cir.1980), and explained that
[i]n both of those cases, attorneys' fees were awarded only in third party actions on insurance contracts between insured shippers and their insurers. There, the Courts had previously recognized the ability of states to regulate rights under insurance policies issued within their domain.
Garan, 907 F.Supp. at 400-01.
TPA and Westchester similarly rely on Steelmet as well as Windward Traders. Ltd. v. Fred S. James & Co. of N.Y., Inc., 855 F.2d 814 (11th Cir.1988), and Hanson v. Veterans Admin., 800 F.2d 1381 (5th Cir.1986), all which upheld the awards of attorney fees in maritime actions. However, all of these cases involved maritime insurance actions. Therefore, for the same reasons stated in the Garan case, TPA and Westchester's reliance on these cases is misplaced.
*1297 As for plaintiffs' argument regarding local concern, similar issues were addressed in both Garan and Sosebee. Both court found that there is a "strong interest in maintaining uniformity in maritime law." Garan, 907 F.Supp. at 401; Sosebee, 893 F.2d at 56. Moreover, regardless of whether there is an issue of local concern, state law cannot displace conflicting federal law. See Pacific Merchant, 918 F.2d at 1409.
Accordingly, this court finds that the provision regarding attorney fees contained in TPA's regulations conflicts with preexisting federal admiralty law and therefore is preempted by federal admiralty law.
Defendants also object to the application of TPA regulations with regard to recovery of repair costs and state the regulations contradict federal admiralty law, specifically, the doctrines of comparative fault and betterment and depreciation.
Damages in a maritime case are governed by federal law. Pelican Marine Carriers, Inc. v. City of Tampa, 791 F. Supp. 845, 856 (M.D.Fla.1992), aff'd, 4 F.3d 999 (11th Cir.1993). "The purpose of compensatory damages is to place the injured party as nearly as possible in the condition he would have occupied if the wrong had not occurred." Id. at 856 (citation omitted). See also Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir.1973), amended by Canal Barge Co., Inc. v. Griffith, 513 F.2d 911 (5th Cir.1975), cert. denied, 423 U.S. 840, 96 S. Ct. 71, 46 L. Ed. 2d 60 (1975) ("A party suffering injury to his property is entitled to no more than restoration to its condition prior to the wrong.").
In cases where there is a constructive total loss[16] or actual total loss,[17] "the measure of damages is generally the market value of the property just before the loss (less the value of any salved equipment or materials) and does not include loss of use or other consequential damages." Pillsbury Company v. Midland Enterprises, Inc., 715 F. Supp. 738, 763 (E.D.La.1989), aff'd and remanded, 904 F.2d 317 (5th Cir.1990), cert. denied, 498 U.S. 983, 111 S. Ct. 515, 112 L. Ed. 2d 527 (1990) (footnotes omitted); see also Orange Beach Water, Sewer and Fire Protection Authority v. M/V Alva, 680 F.2d 1374, 1383 (11th Cir.1982) ("Where a structure is totally lost in an allision, the measure of damages is the market value at the time of destruction, less salvage value.") (citations omitted). If the repair or replacement of the damaged structure adds new value to or extends the useful life of the property, the court should reduce the full repair or replacement costs. Pillsbury, 715 F.Supp. at 763. In making the reduction,
the Court must typically determine what the expected useful life of the property was just prior to the casualty, what the expected useful life of the repaired or replaced property would be, and what amount should be reduced from an award in order to account for any prior depreciation or any anticipated betterment. While a linear, or straight line, depreciation method is most commonly used for property with a fixed life span, this method is not to be applied where evidence establishes that the original property had been deteriorating at a nonlinear rate. Similarly, if there is no evidence of any deterioration prior to the casualty, then no deduction is made for depreciation.
Id. (footnotes omitted). The calculation is as follows:
[The percentage of useful life extension] is the portion of the total useful life of the repaired property that the useful life extension constitutes. The allocable *1298 cost of the useful life extension may then be derived by multiplying this percentage by the total repair expenses. If this allocable cost is then deducted from the total cost of repairs, the resulting damages award will precisely compensate the plaintiff for the cost of restoring his property to its preallision condition.
Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 306 (5th Cir.1976) (footnote omitted).
If, however, the expected useful life of the property is the same after the repair or replacement of the property, a straight-line depreciation formula should be used. Id. at 305. Further, if the repair or replacement does not extend the useful life, then no depreciation should be deducted. Id.
Prior to reducing plaintiff's recovery by a percentage of depreciation, the court must first indicate the expected useful life of the repaired property. Freeport, 526 F.2d at 305 (citations omitted). Further, the court can also apply depreciation to both engineering fees and surveying costs. See In re The Complaint of M & M Towing Co., Case Nos. 94-3264, 95-1406, 1997 WL 96377, *2 (E.D.La. March 4, 1997) (citation omitted).
As for any betterment, it must be proven in order for its value to be offset. Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 304 n. 6 (5th Cir.1976) (citation omitted); see generally Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir.1994) (trial court did not error in failing to include betterment reduction for deeper pipeline where record did not contain any evidence of value nor was issue raised by the court).
Plaintiffs argue that the TPA regulations do not conflict with the doctrine of restitutio in integrum because both provide for the costs of repairs.[18] However, plaintiffs fail to address the fact that the regulations dictate recovery of the costs of repair (presumably the amount paid by TPA) but also provide for an additional twenty percent (20%) of the cost of repair. These rules are contrary to well-established principles of admiralty law providing only for compensatory damages and no unjust enrichment to the injured party.
G. Amount of Damages
The most reasonable estimate of the cost to repair the REK Pier to restore it to the condition it was in prior to the DUCHESS allision is provided by the testimony of Charles Harden who estimated the damage would cost $145,000 to repair.
The other estimates of the cost of repair were predicated on the assumption that the outer 90-foot section of the Pier was so damaged by the DUCHESS allision alone that demolition and reconstruction of the outer section was required. This assumption is not supported by the preponderance of credible evidence. Rather, it is apparent that the fender renovation project was simply a "band-aid approach" to a seriously deteriorated structure. When the DUCHESS struck the northwest corner of the REK Pier on December 25, 1992 it provided plaintiff with an opportunity to re-do the work in progress and implement a design which would extend the useful life of the Pier another fifty years.[19] To award plaintiff the sum it paid Durocher for the additional work ($522,759)or the cost of repair paid by its insurer ($390,355) would be an undeserved windfall under the circumstances presented. Even Gary Dupere of Gee and Jensen conceded that the original pier design might be salvaged with the addition of more pile caps.[20]
*1299 Harden's estimate of $145,000 to repair the damage caused by the DUCHESS did not include a deduction for useful life. (T4, p. 31-33) Because the repairs estimated by Harden would have restored the Pier to the same condition, to the extent practicable, as it was prior to the DUCHESS allision, it is unnecessary for this court to apply a deduction for depreciation.[21] Further, as there was no evidence presented regarding betterment (and Harden's estimate did not take that into consideration), no deduction shall be made for this allowance.
Plaintiff is also entitled to recover its expenses of $5,922 for the Gee and Jensen damage report as well as the $720 diver bill. Together with these expenses, the total amount owed plaintiff (apart from prejudgment interest) is the sum of $151,642. The other costs claimed by plaintiff have not been established as necessarily related to the DUCHESS allision and the damage it caused.
H. Damages of Subrogee Westchester Fire Insurance Company
Westchester's claim is dependent on that of its insured, plaintiff TPA. Any recovery against defendants must be allocated in accordance with the terms of the insurance contract.
I. Prejudgment Interest
The general rule in admiralty is that the court should award prejudgment interest absent peculiar circumstances. See e.g. Pelican Marine Carriers, Inc., v. City of Tampa, 791 F. Supp. 845, 857 (M.D.Fla.1992), aff'd, 4 F.3d 999 (11th Cir. 1993). Because Tampa Port Authority was without fault in the allision, it is entitled to prejudgment interest.
Conclusion
For the reasons stated above, plaintiff Tampa Port Authority, or its subrogee, Westchester Fire Insurance Company, shall recover $151,642, plus prejudgment interest, on its claim of negligence. The negligence claim against defendant B.T. Straits is dismissed.
B.T. Strait's Request For Oral Argument (Dkt.145) is DENIED.
Within ten (10) days, the parties shall file a proposed form of judgment consistent with the findings and conclusions stated herein, including an appropriate pre-judgment interest rate.
Jurisdiction is reserved to consider other post-judgment motions for relief upon proper and timely application.
NOTES
[1] The parties have consented to proceed before the Magistrate Judge pursuant to Title 28, United States Code, Section 636(c) and Fed.R.Civ.P. 73.
[2] Additionally, an evidentiary hearing was conducted on February 13, 1997 in connection with defendants' motion for sanctions for plaintiff TPA's failure to provide certain documents prior to trial in response to discovery requests. The motion for sanctions is addressed in a separate order.
[3] The parties' joint exhibits are referred to by the letters "JX" followed by the exhibit number. Any individual exhibits of the plaintiffs or defendants are referred to by the letters "PX" or "DX" followed by the exhibit number.
[4] Exhibits DX 8, 9B, 21-22 and DX 256 were presented at the reopened trial on January 16 and 17, 1997.
[5] Dupere explained that "pile jackets" were created by placing reinforced steel around the outside of the piling and then filling it with concrete. (T2, p. 38-39)
[6] This document was not provided to defendants by plaintiff in response to discovery requests until several days prior to trial. The parties dispute the reasons for the late disclosure and the circumstances surrounding this dispute were addressed at the sanctions hearing held on February 13, 1997 which also concerned TPA's failure to produce other documents.
[7] This exhibit was introduced at the reopened trial on January 16-17, 1997.
[8] Also, a Gee and Jensen memo of a meeting with TPA officials concerning the fender renovation project dated December 9, 1981 noted that "the outboard end of the pier has been impacted a number of times, with some of the piles being damaged and the pier deck broken-open at approximately STA 8 + 12.... In addition to the repair of this damage, the end will need to be reinforced with the addition of three (3) 5 ft. diameter fenders and four (4) corner fenders." (JX 6)
[9] During trial on October 16 and 17, 1996 counsel for defendants moved for a continuance to allow discovery into whether a barge had hit the REK Pier close in time to the DUCHESS allision, based on information related to defendants' counsel, Mr. Pieper, during trial by prospective witnesses. Court was adjourned during the morning of October 16 to allow the parties to depose one of the prospective witnesses about the alleged barge incident. This court thereafter denied the motion to continue but ruled that the record would be held open and the parties allowed to engage in supplemental discovery on this issue. (T3, p. 169) Subsequent discovery and motions of the parties led to the trial being reopened in January 1997 for receipt of additional evidence and testimony on behalf of the parties.
[10] Dupere was the same Gee and Jensen engineer who inspected the REK Pier in December 1991.
[11] Gary Dupere testified at trial that in addition to having to do the work on a piecemeal basis to accommodate vessel movements, the contractor's high costs for the redesigned pier work could be due to Durocher's being the low bidder on the original bid which could have caused it to adjust its costs upward for the additional work after the DUCHESS allision. (T2, p. 176-177); (JX 54).
[12] Further, this court previously found in its September 13, 1996 order granting partial summary judgment in favor of TPA and Westchester that the DUCHESS failed to overcome the presumption of negligence arising from the allision. (Dkt.58)
[13] No arguments have been presented that either of the two tugs involved in the allision was at fault and there is no evidence to the contrary.
[14] The case of Complaint of Wasson, 495 F.2d 571 (7th Cir.1974) cited by defendant Ware is also unpersuasive. In that case, liability arose under the Pennsylvania rule due to the bridge owner's failure to keep the bridge in compliance with permit requirements. Id. at 579-82. No evidence was introduced in this case that the REK Pier was in violation of any permit requirement or statutory duty of care.
[15] Plaintiffs also argue that the provisions in TPA's tariff cannot be preempted because the tariff constitutes federal admiralty law. Plaintiffs fail to support this argument with any citations of authority. Moreover, this argument is moot in light of this court's finding that the tariff is inapplicable due to inadequate notice. In any event, plaintiffs' argument is rejected.
[16] A constructive total loss is when the costs of repairs exceeds the precasualty value of the property. See Pillsbury Co. v. Midland Enterprises, Inc., 715 F. Supp. 738, 763 (E.D.La. 1989), aff'd and remanded, 904 F.2d 317 (5th Cir. 1990), cert. denied, 498 U.S. 983, 111 S. Ct. 515, 112 L. Ed. 2d 527 (1990).
[17] Actual total loss is when the property is damaged beyond physical repair. See Pillsbury, 715 F.Supp. at 763.
[18] Restitutio in integrum means "[r]estoration to the previous condition." Crounse Corp. v. Vulcan Materials Co., 956 F. Supp. 1377, 1380 (W.D.Tenn.1996) (citation omitted).
[19] Gary Dupere of Gee and Jensen testified that the Pier redesign after the DUCHESS allision would have given the Pier a useful life of about fifty years. (T2 at p. 124-26). He was unable to estimate what the useful life of the Pier would have been in the absence of the post-allision repairs but agreed that it would have been much shorter.
[20] It is noteworthy that Dupere estimated that the redesign work he recommended rebuilding the entire outer 90 feet of the Pierwould cost approximately $214,655.
[21] In any event, the parties did not present any evidence at trial to permit consideration of this concept. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2424007/ | 14 A.3d 827 (2010)
COM.
v.
SHIVERS.
No. 431 MAL (2010).
Supreme Court of Pennsylvania.
December 16, 2010.
Disposition of Petition for Allowance of Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2427243/ | 317 F. Supp. 2d 1334 (2004)
Jodi ZISUMBO (fka Didier), Plaintiff,
v.
McLEODUSA TELECOMMUNICATIONS SERVICES, INC., Defendant.
No. 2:03-CV-0012-DS.
United States District Court, D. Utah, Central Division.
May 11, 2004.
*1335 *1336 Robert H. Wilde, Reid C. Davis, Robert H. Wilde PC, Midvale, UT, for Plaintiff.
Rebecca A. Winterscheidt, Snell & Wilmer, Phoenix, AZ, Mark O. Morris, Tawni J. Sherman, Snell & Wilmer LLP, Salt Lake City, UT, for Defendant.
MEMORANDUM DECISION AND ORDER
SAM, Senior District Judge.
I. INTRODUCTION
Defendant McLeodUSA Telecommunications Services, Inc. moves the court for summary judgment on all of Plaintiff Jodi Zisumbo's claims as more fully discussed below. Briefly stated, the relevant facts and allegations are as follows. Defendant hired Plaintiff on December 16, 1999, as an Account Executive ("AE"). She was later made a Senior Account Executive ("SAE"). Plaintiff's immediate supervisor was Kevin Nelson ("Nelson"). Nelson's supervisor was Drew Peterson ("Peterson"). Both Nelson and Peterson reported to Robert Hatch ("Hatch") who was Group Vice President for Defendant's Western Region.
Plaintiff became pregnant with her fourth child in May of 2000 and so informed Nelson, her immediate supervisor. On July 1, 2000, the number of SAE's on Plaintiff's sales team was reduced from two to one. A male employee, Mark Walker, was selected to remain an SAE on Plaintiff's sales team and Plaintiff was reclassified as an AE with no reduction in base pay. Some of the other employees reassigned by Defendant to AE were male employees. Defendant states that Plaintiff was reclassified as part of a reorganization or readjustment of personnel, primarily involving SAE and AE positions, to meet company expectations. See Hatch Aff., Mem. Supp. at Ex. D. After her reclassification, Plaintiff states that she complained to Defendant's Iowa Human Resources Office about Nelson's conduct and her demotion. Plaintiff claims that she never heard about a company reorganization before or after her reassignment. Defendant's Position Statement submitted to the Equal Employment Opportunity Commission ("EEOC") in earlier proceedings states that Plaintiff's reassignment "was based on her inability to understand and complete the `back-end' part of the sales process". Mem. Opp'n, Ex.5 at 2.
On August 8, 2000, Plaintiff was given a Disciplinary Action Form by Nelson for *1337 being late to work, for having problems making the required number of contacts with sales leads, and for getting into disputes with management. In August of 2000, Plaintiff went on paid medical leave. Plaintiff had a pregnancy-related condition called separated symphysis pubis ("SSP"). Plaintiff asserts that she went on disability because the pain associated with SSP was exacerbated by her hostile work environment. Plaintiff's fourth child was born on January 2, 2001. When Plaintiff was called to return to work, she decided not to continue her employment with Defendant.
Plaintiff subsequently commenced this action. Plaintiff alleges that because of her gender and pregnancy Defendant subjected her to disparate treatment and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. She also claims that Defendant invaded her privacy and defamed her for which it is accountable under state law. Plaintiff's fifth claim purports to allege negligent training and supervision under Title VII.
II. SUMMARY JUDGMENT STANDARD
Under Fed.R.Civ.P. 56, summary judgment is proper only when the pleadings, affidavits, depositions or admissions establish there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.[1]E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727 (2d ed.1983).
When summary judgment is sought, the movant bears the initial responsibility of informing the court of the basis for his motion and identifying those portions of the record and affidavits, if any, he believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. 2548. In a case where a party moves for summary judgment on an issue on which he would not bear the burden of persuasion at trial, his initial burden of production may be satisfied by showing the court there is an absence of evidence in the record to support the nonmovant's case.[2]Id., 477 U.S. at *1338 323, 106 S. Ct. 2548. "[T]here can be no issue as to any material fact ... [when] a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.
Once the moving party has met this initial burden of production, the burden shifts to the nonmoving party to designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. 2548.
If the defendant in a run-of-the-mill civil case moves for summary judgment ... based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict ....
Liberty Lobby, 477 U.S. at 252, 106 S. Ct. 2505. The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. If the nonmoving party cannot muster sufficient evidence to make out a triable issue of fact on his claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Id., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202.
III. DISCUSSION
As noted, Plaintiff alleges that because of her gender and pregnancy Defendant subjected her to disparate treatment and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. She also claims that Defendant invaded her privacy and defamed her for which it is accountable under state law. Plaintiff's fifth claim purports to allege negligent training and supervision in violation of Title VII.
A. Disparate Treatment Title VII (Claim I)
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin". 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress added a definitional section to Title VII, known as the Pregnancy Discrimination Act, which provides in part that "[t]he terms `because of sex' or `on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." Id. at § 2000e(k). A pregnancy discrimination claim is analyzed the same as other Title VII claims. E.E.O.C. v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 947 (10th Cir.), cert. denied, 506 U.S. 817, 113 S. Ct. 60, 121 L. Ed. 2d 28 (1992).
Plaintiff claims that she was discriminated against due to her sex and pregnancy. She complains that she "(1) was subjected to a hostile work environment; (2) was demoted; (3) had commissions withheld; (4) was unfairly disciplined; (5) was denied approximately $1000.00 in short term disability benefits; and (6) was ultimately constructively discharged because of her pregnancy." Mem. Opp'n at 3. Defendant urges that it is entitled to summary judgment because (1) Plaintiff has failed to show an essential element of a *1339 prima facie case, and (2) even if Plaintiff could establish a prima facie case of disparate treatment, Defendant had legitimate non-discriminatory reasons for its actions.
Because Plaintiff has presented no direct evidence of discrimination, the court turns to the familiar burden shifting format set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir.), cert. denied, 522 U.S. 1028, 118 S. Ct. 626, 139 L. Ed. 2d 607 (1997). A plaintiff first has the burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817. If the plaintiff meets her initial burden, then the burden of production shifts to the defendant to demonstrate a legitimate nondiscriminatory reason for the adverse employment action. Id. Lastly, if the defendant meets its burden, the burden shifts back to the plaintiff to show that there is a genuine dispute of material fact as to whether the employer's reason for the challenged action is pretextual and unworthy of belief. Id. at 804, 93 S. Ct. 1817. See also E.E.O.C. v. Horison/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir.2000) (a plaintiff can also avoid summary judgment by showing that her protected status, i.e. "pregnancy" was "a determinative factor in the defendant's employment decision").
To establish a prima facie case of disparate treatment Plaintiff must show: (1) she belonged to the protected class; (2) she was adversely affected by the employer's action; and, (3) she was qualified for the position. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1380 (10th Cir.1994). The fourth element of a prima facie case involves evidence that the adverse employment action was taken "`under circumstances which give rise to an inference of unlawful discrimination.'" E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192 (10th Cir.2000) (quoting Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). "A plaintiff alleging discrimination in violation of Title VII can satisfy the fourth element of her prima facie case in a number of ways." Id. at 1195 n. 6. A plaintiff is not required "to compare herself to similarly-situated co-workers to satisfy the fourth element of her prima facie case." Id. However, "evidence that a defendant treated a plaintiff differently than similarly-situated employees is certainly sufficient to establish a prima facie case [and] it is `[e]specially relevant' to show pretext if the defendant proffers a legitimate nondiscriminatory reason for the adverse employment action." Id. (citation omitted).
For purposes of this motion only, the court will assume and find that Plaintiff has met her initial burden of establishing a prima facie case of gender/pregnancy discrimination. Plaintiff belonged to a protected class by being female and pregnant. Arguably she was adversely affected by being demoted and reclassified to AE. Indeed, Plaintiff claims that the reclassification caused her to suffer a reduction in her commissions. It appears to be undisputed that Plaintiff was qualified for the SAE position. Finally, Plaintiff was treated less favorably than her male counterpart, she was demoted in job title while he was not, thus, giving rise to an inference of unlawful discrimination.[3]
Having found for purposes of the present motion that Plaintiff has met her burden of establishing a prima facie case of discrimination, the court agrees with *1340 Defendant that it has met its burden of producing a legitimate nondiscriminatory explanation to rebut any such prima facie case i.e., that Defendant had a need to reorganize its sales personnel by reducing the number of SAE positions and Plaintiff's male co-worker had better sales figures than Plaintiff and, therefore, was the better qualified person to keep in the SAE position.
As noted earlier, when an employer demonstrates a legitimate nondiscriminatory reason for the adverse employment action, the burden shifts to the employee to show that the proffered reason is unworthy of belief or that her protected status was a determinative factor. "A plaintiff establishes pretext by revealing `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.'" Horizon CMS/Healthcare Corp., 220 F.3d at 1198 (citation omitted). "The relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs." Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999), abrogation on other grounds recognized by Boyer v. Cordant Technologies, Inc., 316 F.3d 1137 (10th Cir.2003).
In urging that Defendant's proffered explanation is a pretext for discrimination, Plaintiff offers the following factual allegations: (1) Nelson made the comment to Plaintiff, "don't go getting pregnant on me"; (2) Nelson's attitude and demeanor changed after Plaintiff informed him she was pregnant; (3) Nelson told Plaintiff her "new nickname was prego"; (4) She was demoted after receiving a better than satisfactory work performance; (5) She was never informed that Defendant was undergoing a reorganization; (6) She never received a copy of Defendant's anti-discrimination manual; (7) She reported Nelson's behavior to Defendant but no investigation or corrective action was taken; (8) In EEOC proceedings Defendant never asserted that she was demoted due to a company reorganization, but rather that she was demoted as a result of poor "back-end" paperwork; (9) Defendant withheld $1000. of Plaintiff's short term disability benefits; and, (10) She was constructively discharged. Mem. Opp'n at 6-14.
Plaintiff has not offered viable evidence sufficient to create a genuine issue of material fact that Defendant's explanation for choosing a male co-worker to retain the SAE position is unworthy of belief or that her gender or pregnancy was a determinative factor. Through the affidavit and deposition testimony of Hatch and Peterson, Defendant has established that those individuals made the decision to reclassify Plaintiff to AE, rather than Walker, because Walker's sales figures were significantly better than Plaintiff's sales figures. There is no evidence before the court that Nelson had a role in that decision. Even though Plaintiff received a satisfactory work performance, which the court notes was while she was pregnant, her reassignment, as noted by Defendant, was based on a corporate readjustment of sales personnel with preference given to the objectively more qualified sales person. The court also agrees with Defendant that at this stage in the dispute after significant discovery, the reason given by Defendant to the EEOC at an earlier stage of discovery is insufficient to draw into question whether Defendant has now advanced a legitimate explanation for the alleged adverse employment action. Similarly, the court agrees with Defendant that the allegation that Plaintiff was unaware of a company-wide personnel readjustment is immaterial and insufficient to draw into *1341 question Defendant's proffered reason for reclassifying her. The court also agrees with Defendant that it is immaterial to the issue of pretext that Defendant failed to provide Plaintiff with its anti-discrimination materials. Plaintiff's assertion that Defendant failed to take action regarding Nelson's alleged conduct is unsupported by any evidence other than Plaintiff's own conclusory allegations. Plaintiff states the Defendant's Human Resource employee, Jennifer Hansen "assured Plaintiff that she would take care of Plaintiff's concerns". Mem. Opp's at 11. Yet, there is simply no evidence before the court of what action, if any, Defendant undertook. Finally, Plaintiff's allegation that Defendant withheld $1000.00 of her short term disability benefits on only one occasion is immaterial and insufficient to draw into question Defendant's proffered explanation for its employment decision. In sum, Plaintiff's allegations, taken individually or as a whole, fail to show that Plaintiff's gender or pregnancy were determinative factors in Defendant's action, nor do they undermine Defendant's articulated reason for reassigning Plaintiff to an AE position.
B. Hostile Environment Title VII (Claim II)
Plaintiff also claims gender and pregnancy discrimination based on a hostile work environment due to "discriminatory intimidation, ridicule and insult". Compl. At ¶ 52. To survive summary judgment on her hostile environment claim, Plaintiff must show "that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998), cert. denied, 526 U.S. 1039, 119 S. Ct. 1334, 143 L. Ed. 2d 498 (1999) (internal quotation marks and citation omitted). "The plaintiff must produce evidence that she was the object of harassment because of her gender." Id."In deciding whether or not a hostile environment existed, it is necessary to look to all the circumstances involved in the situation. These may include `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'". Nieto v. Kapoor, 268 F.3d 1208 1218 (10th Cir.2001) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)).
Plaintiff acknowledges that in Defendant's motion for summary judgment "Defendant has dispassionately itemized most of the factual allegations that support Plaintiff's claim relating to a sexually hostile work environment." Mem. Opp'n at 15. Those allegations, outlined by Defendant, are as follows.
Summarized, Zisumbo's allegations are that during May, June, July, and the first week of August, 2000, the following discriminatory events took place:
Nelson said "You are not gonna go and get pregnant now, are you, Jodi?" (Zisumbo Dep. at 37:15-16.)
Nelson did not say much when Zisumbo told him she was pregnant, which she found very rude. (Zisumbo Dep. at 39:18-25; 40:25-41:1)
Nelson frequently called Zisumbo "prego" and was "rude" to her. (Id. at 44:49-51.)
Nelson told her that she should quit or go on disability leave. (Zisumbo Dep. at 46:10-48:15.)
Nelson gave one of Zisumbo's accounts to another AE. (Zisumbo Dep. at 49:21-25.)
*1342 Zisumbo was reassigned from an SAE position to an AE position. (Stmt. Of Facts ¶ 9.)
Drew Peterson said that he hoped Zisumbo's productivity would not go down because of her pregnancy. (Zisumbo Dep. at 69:7-12; 70:18-72:14.)
Nelson left Zisumbo a message saying she should keep her cell phone on. (Zisumbo Dep. at 74:24-75:9.)
When Zisumbo reported to the Farmington office for a meeting, as requested by Nelson, she was told that there was no meeting and Nelson was not there. (Id. at 75-76.)
Zisumbo was moved to the Farmington office, along with the other members of Nelson's team. (Zisumbo Dep. at 89:6-90:17.)
Nelson told Mark Walker that Zisumbo would sign customers up and then her customers would leave McLeod's service. (Zisumbo Dep. at 106:4-10.)
Someone at MeLeod told one of Zisumbo's customers, Linford Glass, that the problems with Linford Glass' installation was the result of Zisumbo's clerical error. (Zisumbo Dep. at 106:16-109:1.)
One of Zisumbo's disability checks was allegedly withheld in October 2000. (Zisumbo Dep. at 81:8-84:16.)
Mem. Supp. at 10-11. Plaintiff adds in conclusory fashion that "Defendant's itemization however, does not include the many instances that Plaintiff was yelled at for no reason and the instances instigated by Nelson to pressure Plaintiff to quit her employment." Mem. Opp'n at 15-16. Plaintiff's deposition testimony is similarly conclusory.
After thoroughly examining the record, the court concludes that a rational jury could not find that the conduct alleged, even if proven true, was so severe or pervasive so as to create an objectively hostile work environment. The court agrees with Defendant that much of the conduct alleged was boorish and rude. Some of the conduct alleged appears from viable evidence to have been motivated by legitimate business reasons. Other conduct alleged merely appears to be isolated incidents. In short, the conduct alleged, in the court's opinion, falls short of the applicable standard to make out a claim under Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) ("Title VII does not prohibit `genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex'"; "offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment'"; and, "conduct must be extreme to amount to a change in the terms and conditions of employment").
C. INVASION OF PRIVACY FALSE LIGHT (CLAIM III)
In Claim III, Plaintiff alleges that Defendant "intentionally portrayed [her] in a false light to her co-workers, to other employees of the Defendant and an additional number of persons who are as yet unknown." Compl. at ¶ 60. Specifically, Plaintiff points to "Nelson's statement to Mark Walker inferring that Plaintiff was engaging in a dishonest practice by signing customers up just to get a commission and falsely blaming Plaintiff for turn up delays with the Linford Glass account" as well as statements made by Nelson on Plaintiff's Disciplinary Action Form. Mem. Opp'n at 17.
Utah law provides that
one is subject to liability to another for invasion of privacy [under a false light theory] if (1) he or she
*1343 gives publicity to a matter concerning another that places the other before the public in a false light[; (2)] the false light in which the other was placed would be highly offensive to a reasonable person[;] and [(3)] the actor ha[d] knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 380 (Utah App.1997) (quoting Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 907 (Utah 1992)).
The court agrees with Defendant that Plaintiff "has not shown that Nelson's statement to Walker placed her before the public in a false light." Mem. Supp. at 16. See Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 558 (Utah 2000) (citation omitted) ("public disclosure `means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'"). Similarly, the court concludes that alleged statements made by Defendant's employees to Elizabeth Linford of Linford Glass, to the effect that Linford Glass's telephone difficulties were a result of a clerical error made by Plaintiff, did not amount to public disclosure. See id. It is worth noting that Elizabeth Linford did not believe Plaintiff to be at fault. Because Plaintiff cannot establish a prima facie claim for invasion of privacy based on a false light theory, Defendant is entitled to summary judgment on Claim III.
D. DEFAMATION (CLAIM IV)
Plaintiff concedes that her claim for defamation should be dismissed with prejudice. Mem. Opp'n at 18.
E. NEGLIGENT TRAINING AND SUPERVISION Tile VII (CLAIM V)
In Claim V Plaintiff purports to assert a claim for negligent training and supervision under Title VII. Plaintiff alleges:
74. Title VII ... obligates employers, including the Defendant to, and without limitation, promulgate clear policies, (a) prohibiting all forms of unlawful discrimination and harassment in the workplace including sexual harassment and discrimination; (b) which invite employees to bring complaints of unlawful discrimination and harassment to the attention of an appropriate supervisor or if necessary to a designated personnel officer of some other official, (c) that allow complaints to be thoroughly but discreetly investigated, and, (d) that provide its management and supervision with detailed training to identify, respond, resolve and otherwise prevent complaints of sexual harassment and discrimination in the workplace.
75. The Defendant breached its duty by failing to provide detailed training and oversight to its employees, supervision and management as outlined herein and, in so doing, proximately caused the Plaintiff to be subjected to unlawful sexual harassment and discrimination in the workplace.
76. In disregard of its duty under Title VII, the Defendant negligently and/or willfully failed to provide detailed training to its managers and other employees in appropriate procedures to protect the Plaintiff from discrimination based on sex and pregnancy and otherwise caused the Plaintiff to be unlawfully singled out, ignored, harassed, demoted, defamed, demeaned and terminated from her employment all to her general damage.
Compl. at ¶¶ 74-76.
The court agrees with Defendant that "[w]hile the absence of an anti-discrimination *1344 policy that contains a complaint mechanism may eliminate a possible defense that would otherwise be available to an employer accused of discrimination, Cadena v. Pacesetter Corp., 224 F.3d 1203 (10th Cir.2000), there is no affirmative requirement that such a policy exist." Mem. Supp. at 18. See 42 U.S.C. § 2000e et seq.
In support of her position, Plaintiff relies on Jeffries v. State of Kansas, 147 F.3d 1220, 1229 (10th Cir.1998). Jeffries presented the issue of whether the employer could be held liable for its employee's actions under a tort-based negligence theory. Id. at 1228-29.[4] "Under Title VII, an employer is negligent if it `fail[s] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.'" Id. at 1229 (quoting Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 577 (10th Cir.1990)) (internal quotation marks and citation omitted). "In order to prevail on an employer negligence claim, the plaintiff must demonstrate that, once notified of sexual harassment, the employer failed to take `prompt, adequate and effective remedial action.'" Jeffries, 147 F.3d at 1229 (citation omitted).
Even if Plaintiff's claim could be read as alleging a claim of employer negligence similar to that in Jeffries, no viable evidence before the court supports such a claim, i.e. that Defendant, after being notified of sexual harassment failed to take prompt and effective action. Plaintiff, in conclusory fashion, simply states that after she "placed three calls to Defendant's Cedar Rapids human resources department employee Jennifer Hansen", Defendant ignored Nelson's "sexual harassment and discriminatory conduct". Mem. Opp'n at 19-20. Plaintiff, however, acknowledges that Jennifer Hansen "assured Plaintiff that she would take care of Plaintiff's concerns". Id. at 11. Other than Plaintiff's conclusory allegation, there is no evidence before the court of what Defendant did or did not do after Plaintiff allegedly complained about Nelson.
F. CONSTRUCTIVE DISCHARGE
Although not captioned as a separate claim, Plaintiff alleges that on February 26, 2001, she "resigned and/or was constructively discharged from her employment after reasonably concluding that Defendant ignored her complaints of pregnancy discrimination and that she could not return to work and continue being supervised by Nelson and Peterson." Compl. at ¶ 40.
To prove constructive discharge Plaintiff must provide sufficient facts to demonstrate that "`the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign.'" Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir.1998) (quoting Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986)). The plaintiff must show that she had no alternative but to quit. Id. In the court's view, Plaintiff has failed to meet her required burden.
*1345 IV. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED and Plaintiff's complaint is DISMISSED with prejudice. The Clerk of the Court is requested to enter final judgment for Defendant and against Plaintiff.
IT IS SO ORDERED.
NOTES
[1] Whether a fact is material is determined by looking to relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
[2] In his dissent in Celotex, Justice Brennan discussed the mechanics for discharging the initial burden of production when the moving party seeks summary judgment on the ground the nonmoving party who will bear the burden of persuasion at trial has no evidence:
Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. Such a `burden' of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.
477 U.S. at 323 (citations omitted).
[3] Although, Defendant urges that Plaintiff was just one of several male and female SAE's who were moved to AE positions, the record is that on Plaintiff's team, there were only two SAE employees, Plaintiff and her male counterpart.
[4] Under Tenth Circuit case authority, the following are grounds for employer liability for employee conduct.
An employer is liable for: (1) any tort committed by an employee acting within the scope of his or her employment; (2) any tort committed by an employee in which the employer was negligent or reckless; or (3) any tort in which the employee purported to act or speak on behalf of the employer and there was reliance upon apparent authority, or the employee was aided in accomplishing the tort by the existence of agency relation.
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 783 (10th Cir.1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2429859/ | 753 S.W.2d 127 (1988)
David MASSEY, Individually, and John Craig, Individually, and Massey-Craig Motors, Inc., Plaintiffs-Appellees,
v.
Loy G. HARDCASTLE, Jr., and Robert E. Bond and Gilford Thornton and Ed Bond Motors, Inc., Defendants-Appellants.
Court of Appeals of Tennessee, Middle Section, at Nashville.
March 9, 1988.
Petition to Rehear Denied May 23, 1988.
*128 Jerry Wallace, Pulaski, Lee England, Lawrenceburg, for plaintiffs-appellees.
W.C. Keaton, Keaton, Turner & Spitzer, Hohenwald, for defendants-appellants.
Petition to Rehear Denied by Supreme Court May 23, 1988.
OPINION
TODD, Presiding Judge.
This is a suit for damages for breach of a sales contract. The Trial Court, sitting without a jury, awarded plaintiffs $228,725 damages, and defendants have appealed.
David Massey, John Craig and Massey Craig Motors, Inc., sued Loy G. Hardcastle, Jr., Robert E. Bond, Gilford Thornton and Ed Bond Motors, Inc., for breach of contract. The Trial Court rendered judgment in favor of the plaintiffs and against Loy G. Hardcastle, Jr., Robert E. Bond and Gilford Thornton, and dismissed plaintiffs' suit against Ed Bond Motors, Inc. The counterclaim of the defendants was dismissed.
Appellants have presented fourteen issues for review, of which the first four assert the statute of frauds.
David Massey and John Craig were the only stockholders in Massey-Craig Motors, Inc., a franchised Chrysler, Dodge, Plymouth automobile dealer at Lawrenceburg, Tennessee. Part of the real estate used by the corporation was owned by the stockholders and rented to the corporation. Other land used by the corporation was leased from others.
On January 8, 1986, using a form furnished by Chrysler, Mr. Estep, a representative of Chrysler Credit Corporation, caused Massey-Craig Motors, Inc., to write a letter to Chrysler Corporation stating:
Please take notice that the undersigned elects to terminate and does hereby terminate in accordance with the terms thereof, effective thirty (30) days from delivery hereof to you, any and all agreements that the undersigned has at any time entered into with you, relating to the purchase and sale of Chrysler Corporation motor vehicles, if and to the extent now in effect, including, without prejudice to the generality thereof, a certain Massey-Craig Motors, Inc. Direct Dealer Agreement currently in effect between you and the undersigned.
Said letter bears the signatures of the plaintiffs Massey and Craig. Mr. Estep sent a copy of the letter to Chrysler Credit Corporation, but the original of the letter was not mailed to Chrysler Corp. until several weeks later. On the same date, (Jan. 8, 1986), Chrysler Credit cancelled the line of credit of Massey-Craig Motors, Inc., and Mr. Estep notified Chrysler Corp. offices of the cancellation, thereby preventing further shipments of vehicles to Massey-Craig Motors, Inc.
From October, 1985 to January 1986, defendant Gil Thornton, discussed with John Craig the purchase of Massey-Craig Motors, Inc.
*129 On January 24, 1986, defendants, Bond, Thornton and Hardcastle, met with plaintiffs Massey and Craig and the Chrysler representative, Estep. At this meeting was produced the document upon which this suit is based. It is composed of two sheets of paper, one yellow and one white. On the face of the yellow sheet, defendant, Mr. Hardcastle, wrote the following:
1-24-86 4:35 p.m. 1986
Massey-Craig Mtrs.
2122 N. Locust Ave.
Lawrenceburg, TN
Buy-sell agreement between Massey-Craig (seller) and Bond Motors Inc. (buyer):
Buyer agrees to purchase assets of seller as follows:
A. Purchase new car inventory at Chrysler invoice.
B. Purchase Chrysler parts at book value.
C. Purchase additional random parts at $7,000.*
D. Seller agrees to transfer all rights to its' franchise with C-P-D to buyer.
At the close of this purchase, the seller will transfer its tenantcy to the buyer for occupancy and use of premises for ongoing business activities of the buyer.
s/ G. Thornton
*Exceptions
* If transaction of real estate continues for through Feb., Bond Mtrs. would pay Massey-Craig approx. $5,700.
480,000
40,000 check
_______
440,000 ASAP
On the reverse side of the yellow sheet, Massey wrote the following:
1. Junk in back and salvage vhs
2. Trk Bodies & wood storage Blgs in rear and whats inside.
3. Personal items.
4. Boltons computer
5. Big typewriter
Following the above quoted matter, Mr. Hardcastle wrote the following:
10% Deposit
Thereafter, appear the following signatures:
Loy G. Hardcastle
Robert E. Bond
David Massey
John W. Craig
witness: W.H. Estep
The white sheet of paper contains the following:
1. Junk and salvage veh's in rear of bldg.
2. Trk bodies and wood Bldg. & contents.
3. Personal items.
4. Sharp Financial Computer
5. Royal 410 typewriter.
6. M-C office supplies in small bldg. 6 offices.
7. Small safe.
8. Cash & deals in process.
Mr. Massey describes this information as:
just another list of exceptions, the things that Craig-Massey was to keep.
On the same date, January 24, 1986, Mr. Hardcastle gave Massey-Craig Motors, Inc., a check for $40,000.00 for "escrow deposit on dealership until all the details of the buy-sell was actually consummated and the corporation and Chrysler Credit had approved the franchise and the line of credit." It was clearly understood that this check was purely symbolic, for there were no funds on deposit out of which it might be honored.
At the time of the signing of the agreement on January 24, 1986, the defendants were unaware of the letter terminating the franchise, the existence of a lien for $16,000 delinquent state sales taxes, or $16,000 delinquent interest on floor plan security installments covering new cars on hand.
On the night of January 24, 1986, defendants learned of the two $16,000 liens, and the parties met and discussed the sales tax lien and the indebtedness to Chrysler of $16,000. Mr. Thornton reduced the amount of defendants' offer to $408,000, but no agreement was reached.
*130 Plaintiffs were quite upset that defendants should arbitrarily attempt to reduce the sales price from $480,000 to $408,000, but it appears that plaintiffs misunderstood the significance of the reduction. It appears from the document quoted above that the intended sale price of $480,000 was to be reduced to $440,000 by the ultimate cashing of the $40,000 check. When plaintiffs requested "up-front money" of $32,000 to satisfy the two $16,000 claims, defendants conceived that the advancement of such a sum would further reduce the net sales price from $440,000 to $408,000. Nevertheless, because of the misunderstanding or disagreement, the $32,000 "upfront money" was never advanced by defendants.
On the following day, January 25, 1986, plaintiffs informed Mr. Thornton that the interest and sales tax had been taken care of. At that time, said debts had not been satisfied.
On the same date, January 25, 1986, defendants assumed control of the premises of Massey-Craig Motors, Inc., under the name Bond Motor Company and continued to engage in business on said premises until February 18, 1986, at which time defendants abandoned said premises.
On March 6, 1986, Bond Motors, Inc., wrote to plaintiffs as follows:
March 6, 1986
Mr. David Massey
Mr. John Craig
c/o Massey-Craig Motors, Inc.
N. Locust
Lawrenceburg, TN
Gentlemen:
Since our request for evidence has not been received that your obligation to the Tennessee Department of Revenue for the December Sales Tax has been met along with other problems with the Dealership, we wish to break off our tentative negotiations for the assets discussed from Massey-Craig Motors, Inc.
Sincerely,
/s/ Loy G. Hardcastle, Jr., Sec.
Loy G. Hardcastle, Jr., Sec.
Bond Motors, Inc.
Thereafter, Bond Motors, Inc., received evidence that the sales tax was paid on February 12, 1986.
On March 14, 1986, the captioned plaintiffs sued the captioned defendants alleging in Count 1:
At all times mentioned herein the plaintiffs owned and still own in fee simple absolute certain property situated in Lawrence County, Tennessee, and more particularly described as follows:
(describing by metes and bounds)
By written contract dated the 24th day of January, 1986, the plaintiffs agreed to sell to the defendants and the defendants agreed to buy from the plaintiffs the above described real property for and in the sum of Four Hundred and Eighty Thousand Dollars, ($480,000.00), and included in this conveyance was the majority of the business belonging to the plaintiffs. A copy of the written agreement entered into by the parties is attached hereto and marked Exhibit No. 1, and by reference made a part hereof.
That the consideration for the execution of said contract was a check for the sum of Forty Thousand Dollars, ($40,000.00) which check cannot be negotiated for Insufficient Funds, a copy of which is attached hereto, marked Exhibit No. 2, and by reference made a part hereof.
As previously described, the contemplated sale between these parties was not only of the real estate but of the Chrysler Dealership located at the plaintiffs' place of business in Lawrenceburg, Tennessee, the sale included the new car inventory, the parts and the plaintiffs' franchise to their Chrysler Dealership. In furtherance of this agreement, the defendant and/or their agents and servants took possession of the plaintiffs' place of business on the 25th day of January, 1986, began to operate the business of a new car dealership and particularly, a Chrysler Dealership, on the plaintiffs' premises. The plaintiffs through the month of February, 1986, made repeated efforts to close and consummate the original agreement between these parties and the defendants have continuously *131 refused to proceed any further with the closing of the agreement with the payment of the purchase price and have intentionally repudiated the contract.
At all times herein mentioned, the plaintiffs have been ready, willing and able to perform the contract by conveying to the defendants good title to said property.
On February 18, 1986, the defendants abandoned the premises and intentionally closed an ongoing business which intentional closing severely damaged the plaintiffs.
Count I prays:
That the Court enter judgment in favor of the plaintiffs compelling the defendants to perform said contract by paying to the plaintiffs the sum of Four Hundred and Eighty Thousand Dollars, ($480,000), the purchase price of said real property with interest thereon at the legal and lawful rate of interest prescribed in the State of Tennessee for prejudgment.
Count II of the complaint states:
The defendants in furtherance of said contract took possession of the plaintiffs' premises on January 25, 1986, and remained in possession of said premises until February 18, 1986. By reason of the result of that possession, the plaintiffs have suffered incidental damages for the intentional and unwarranted repudiation of the original contract and those incidental damages include an accounting for inventory owned by the plaintiffs that were sold by the defendants and their agents, for rent, for utilities including electric, water and telephone and accounting to the plaintiffs for motor vehicles owned by the plaintiffs that were sold by the defendants and/or their servants and agents, and in addition, the plaintiffs had on hand a new car inventory with an outstanding balance due to Chrysler Credit Corporation, which new car inventory stood as security for that creditor's floor plan, the amount due of Three Hundred and Thirty One Thousand, Eight Hundred and Sixty Seven Dollars and Forty Two Cents, ($331,867.42), the plaintiffs have been forced to sale that inventory for Three Hundred and Twenty Thousand, Nine Hundred and Forty Five Dollars and Thirty Five Cents, ($320,945.35), or at a discount of Ten Thousand, Nine Hundred and Twenty Two Dollars and Seven Cents, ($10,922.07).
PREMISES CONSIDERED, THE PLAINTIFFS PRAY:
1. The Court enter judgment against the defendants for and in the sum of Fifty Thousand Dollars, ($50,000.00), as compensatory damages in this cause.
Count III alleges willful misconduct and prays for judgment for $500,000.
The answer of defendants state:
It is admitted by the defendants that a written "buy-sell agreement" was entered into by the plaintiffs and the defendants on or about the 24th day of January, 1986. It is denied that the majority of the consideration for the sale was in order to buy the real property described above. The sale was to include the business of the plaintiffs as well as the interest in the franchise with Chrysler Credit Corporation, and other considerations then believed to be owned by plaintiffs and inventory then believed by defendants to be owned by plaintiffs because of plaintiffs averments to that effect.
... .
... the plaintiffs through the month of February, 1986, made repeated efforts to close and consummate the original agreement between the parties, but would state in the contrary that the plaintiffs continued to attempt to renegotiate the contract entered into by them after discovery by the defendants that they did not, in actuality, own the majority of the dealership which they were attempting to sell to the defendants.
... .
Defendant would not (sic) adopt as affirmative defenses that the plaintiffs attempted to fraudulently induce the defendants to purchase the property which plaintiffs did not own. Further, at the *132 time of the agreement, it was impossible for the plaintiffs to perform the contract and remained impossible for them to perform the contract throughout the period of time alleged in the complaint. Further, the complaint fails to state a claim upon which relief can be granted.
By cross claim defendants alleged:
That at the time of the agreement between the parties the plaintiffs did not hold the interest which they claimed to hold in the dealership in Lawrenceburg, Lawrence County, Tennessee and attempted to fraudulently induce the defendants to enter into a purchase agreement with them for an exorbitant price for what the plaintiffs did not, in actuality, hold title.
That upon the discovery of the facts alleged in paragraph II, above, the plaintiffs attempted to renegotiate the agreement between the parties with defendants and, in order to, pay off certain debts which were the cause of the lack of good title to the property attempted to be conveyed, requested additional capital be advanced prior to the closing of any sale.
Because of the fraud of plaintiffs, defendants/counterplaintiffs were forced to run at their own expense the dealership in Lawrenceburg, Lawrence County, Tennessee and because of said attempt were caused the loss of money, time and property in the amount of $10,000.00
Without record permission of the Trial Court, on June 13, 1986, plaintiffs filed an amended complaint identical to Count I of the original complaint and omitting Count II.
On April 10, 1987, without record permission of the Trial Court, defendants filed an amended answer containing the following:
6.... .
They further admit that in order for the dealership to continue its operations, Bond Motors, Inc., took over the management of same in January of 1986. Bond Motors, Inc., managed the operations of the business for a period of days and until defendants became aware of certain facts relative to liens and encumbrances that existed on the business and the fact that plaintiffs had executed a termination letter of their dealership with Chrysler Corporation.
They deny that they refused to negotiate toward resolving the aforementioned problems that had come to the attention of the defendants. They admit that they refused to proceed any further with negotiations when it came apparent that the problems could not be solved on a reasonable basis.
7. They admit Bond Motors, Inc., ceased to manage the business on or about February 18, 1986, and did leave the premises. They deny the remaining allegations of Paragraph VII of the amended complaint.
8. Defendants deny that plaintiffs, David Massey and John Craig, have been legally authorized to institute this action on behalf of Massey-Craig Motors, Inc. (T.R.C.P., Rule 9.01)
... .
10. Defendants deny that they took exclusive possession of the premises; rather they shared possession with plaintiff... .
Defendants plead the following affirmative defenses:
a. It was impossible for the plaintiffs to carry out the terms of the alleged contract because its rights to its franchise with Chrysler-Plymouth Dodge had been terminated by plaintiffs on January 8, 1986, and all the other items of property were encumbered so that it could not sell and deliver unencumbered title of these items to Ed Bond Motors, Inc.
b. The alleged contract was, as shown by plaintiffs' Exhibit No. 1, to be a contract with Massey-Craig Motors, Inc. as seller. Therefore, the complaint fails to state a claim upon which any relief can be granted to the plaintiffs, David Massey and John Craig.
c. There was no meeting of the minds of the parties to the alleged contract. Plaintiffs continued to try to negotiate an agreement, but wanted to modify their original proposition by asking for front-end money, etc. so that no agreement was ever reached.
*133 d. The paper writing was incomplete as is clearly shown by reference to the allegations of the amended complaint. Most of the items alleged in the complaint are not in the paper writing.
e. The alleged contract is so ambiguous and uncertain that it cannot be reasonably construed.
f. The intentions of the parties to the alleged cannot be ascertained from an examination within the alleged contract's four corners.
g. The plaintiffs breached the terms of the alleged contract in that the title to the goods involved in the transaction was not good. The goods were subject to a tax lien of the State of Tennessee. There was a lien in favor of Chrysler Credit. There was a deed of trust on the real estate which was outstanding to secure an indebtedness due Commerce Union Bank. Most, if not all of these liens and indebtednesses were unknown to the defendants. The foregoing constituted a breach of the implied warranty as is set out and stated in T.C.A. § 42-2-312, 725.
h. Therefore, plaintiffs could not deliver good title to the alleged purchaser of the items alleged to be a part of the contract free from any security interest or other lien or encumbrance of which the alleged purchaser had no knowledge at the time the paper writing was executed. (T.C.A. 47-2-312)
i. The alleged contract was for the sale of goods of a value in excess of $500 and there being no sufficient writing same was unenforceable by reason of the statute of frauds. (T.C.A. 47-2-201)
j. The alleged contract was for the sale of personal property in an amount or value in excess of $5,000 and the subject matter not being reasonably identified, the alleged contract was unenforceable by reason of the statute of frauds. (T.C.A. 47-1-206)
k. As the alleged contract included the sale of land and same did not include a sufficient description of the land, this action is barred by the statute of frauds. (T.C.A. 29-2-101(4)).
l. As the alleged contract was not signed by the party to be charged Ed Bond Motors, Inc., or some other person by it thereunto lawfully authorized this action is barred by the statute of frauds.. (T.C.A. 29-2-101(5)).
The Trial Court filed no finding of facts or memorandum opinion. However, the Trial Judge stated orally from the bench:
The Court: ... I have determined that this particular instrument that was the basis of this lawsuit, as meager as it is, I feel like that it's adequate to take this matter out of the Statute of Frauds. That being the case with the real estate, the $5000.00 personal property and the $500.00 property, the Statutes that refer to those amounts.
Now, we've got to bear in mind, I think, that in this particular situation, we had 3 men, there are 3 defendants in this case, and they've all been in the automobile business for some length of time, I believe Mr. Bond stated that he never had been a dealer, but had been in the business for quite some length of time, and Mr. Thornton has interest in three different Chrysler-Dodge-Plymouth businesses, and Mr. Hardcastle, as I understand it, is a dealer, and this contract, the main part, was written by Mr. Hardcastle, and I think Mr. Thornton more or less dictated it, and in that the contract refers to the address of the property, it refers to the real estate, in that it states that if transaction of real estate continued for through February, Bond would pay Massey-Craig approximately $5700.00 So I think, reading the entire paper writing, that it could be concluded, or I've concluded, that the proof is adequate to show that it was the intention of the parties for Massey-Craig to sell this as a going business, the real estate, inventory, parts, equipment and the whole thing for the sum of $480,000.00
Now, I think, too, this matter of equitable estoppel has been argued, even though I'm finding that this paper writing is sufficient, I'm finding also that this would be a matter of equitable estoppel for these reasons: The plaintiffs in this case were in the process, and had *134 been for some time, of going out of business. They had sold various cars to dealers and they had even contacted part of the defendants in this case, to sell cars that they had on hand, and they were in the process of going out of business, and they had this discussion with, I believe, Mr. Thornton, a few days before January 24, of '86, and on that day, that is, January 24, 1986, when Mr. Thornton, Mr. Hardcastle and Mr. Bond were all here, and they discussed this matter, I gathered from the proof at that time that Mr. Massey and Mr. Craig had figured out a way, with the sale of this property, to get out of this business, deliver clear title to the Thornton-Hardcastle-Bond people, and whatever they couldn't pay off, just make some arrangements, I think this is evidenced from the fact that some few days after this, they paid the sales tax. They asked to use part of this $40,000.00, that wouldn't work, so they made arrangements for that. The testimony of Mr. Eastep (sic) showed that they had made arrangements in such a manner with the Chrysler Credit Corporation, that by using their used cars, which they were going to keep, and they were clear with Chrysler, that was my understanding of the proof. So I feel like, and I'm satisfied from the proof, that they had made arrangements with this particular contract to not get completely out of debt, but in order to be able to get rid of this business and go on about their business in such a manner so that they could handle it. When this agreement was entered into on the 24th, I believe the proof showed that it was the very next day, that the defendants, and by "defendants" I'm referring to Mr. Bond, Mr. Hardcastle and Mr. Thornton, all three of them had signed this agreement, and whatever their other agreement might have been among themselves, I don't think they're material to this matter, but nevertheless, they began to operate, I believe, the very next day, as Bond Motors, Inc., there was not, in fact, a Bond Motors, Inc., they did not apply for a Charter until some few days after that, but they began to do business as Bond Motors, Inc., advertised in the paper, put the sign up in front of the building, and did some business. This went on for a period of some 25 days. Then the original agreement of $480,000.00 broke down, and probably it was just a mistake of judgment, I don't feel like that under these circumstances with the defendants being in the Chrysler-Plymouth-Dodge business, and being familiar with franchises, I don't feel like that they could have just arbitrarily said, "Well, now, you can't give us a clear title, so we're not going to do this". From what I've heard, I feel like that, as I've said, that the plaintiffs had the matter worked out in such a manner as to deliver what they had contracted to deliver, to the defendants, free and clear of any encumbrances against the property, just like the some $75-or-$85,000.00 that's been testified about here, I feel like that that would not have been a lien against this property, and that other matters, with their used car business, could have been handled in such a manner so as to have delivered this particular property to the defendants free and clear of any encumbrances.
These folks were right in the middle of liquidating at this period, but by entering into this agreement, by so-called Bond Motors moving right in and starting to advertise, it put them in a little peculiar position, or you might say a big peculiar position, as far as trying to go on with what they had been doing, in other words, they now had it liquidated, closed out, with the agreement that they had with the defendants, they didn't do anything else, as far as trying to sell cars or anything else to get this matter, they had it done. But after the some 25 days, the defendants walked off from this business, took their I guess what cars they brought down from their other dealerships, and there the plaintiffs were left.
I feel, for that reason, that equitable estoppel would apply in this case, so then we come down to the matter of damages, and we've only heard from the plaintiffs, really, as far as damages are concerned, and I feel that in this particular situation, *135 the amount of damages should be the first take the contract price of $480,000.00, take away the amount that the land and the portable building brought, $224,500.00, take away the $15,000.00 that they obtained from the parts and the equipment... .
I do feel like, under the circumstances, where the defendants moved in, moved other vehicles in, actually used the plaintiffs' valuable piece of property for this period of time, that they should pay at least the rent that this corporation was paying to the plaintiffs, I'm going to set the rent at $6000.00, $3000.00 for a 2-months period. They used it a month, there's nothing in the record to indicate that they said anything to anybody when they picked up and left, I think $6000.00 would be proper for that.
... .
I was doing, Mr. England, I was taking $480,000.00 and I was taking away the $244,500.00 taking away the $15,000.00; and then I was adding the $6000.00 for two months' rent and the wholesale interest charges for those 25 days, that the defendants had possession of these automobiles and the premises.
The final judgment reads in pertinent part as follows:
The Court upon the pleadings in this cause, the entire record, the examination of witnesses in open Court, and Exhibits to their testimony, finds the issues in this case in favor of the plaintiffs and against the defendants, and therefore, accordingly,
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED, and the plaintiffs are here and now awarded as compensatory damages the sum of Two Hundred and Twenty Thousand, Five Hundred Dollars, ($220,500.00).
IT IS FURTHER ORDERED ADJUDGED AND DECREED, and the plaintiffs are awarded as incidental special damages, the sum of Six Thousand Dollars, ($6,000.00), and Twenty Seven Hundred and Twenty Five Dollars, ($2,725.00).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the counter-complaint in this cause, filed by the defendants, is dismissed, this judgment is against Loy G. Hardcastle, Jr., Robert E. Bond and Gilford Thornton, jointly and severally.
All of the captioned defendants appealed. They have presented fourteen issues, of which the first is:
1. Whether this action is barred by the statute of frauds (T.C.A. § 29-2-101(4)) because the paperwriting contains no description of the real estate to be sold.
T.C.A. § 29-2-101(4) provides in pertinent part as follows:
No action shall be brought: ... upon any contact for the sale of lands ... unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.
Plaintiffs insist that the principal property involved in the agreement sued upon was a tract of real estate described in the complaint. In order to be enforceable, the contract must conform to § 29-2-101(4).
Plaintiffs assert first that the real estate is described in the contract as "2122 N. Locust Ave., Lawrenceburg, Tennessee", which, it is alleged, is sufficient. This Court does not agree. If the document can be said to have any identifiable form, the first page thereof appears to be in the form of a letter addressed to "Massey-Craig Mtrs" at the address, "2122 N. Locust Ave., Lawrenceburg, Tn". The mailing address, or actual address of one of the parties is not a designation of the description of real estate to be bought or sold. This is especially true in the present case, where, on the face of the instrument, the words, your land, land, or real estate do not occur. The nearest so such a designation are "tenancy" coupled with the word "premises."
If the reverse side of the instrument should be regarded as part and parcel of the front side, the only reference to real *136 estate is "If the transaction of real estate continues ..."
This Court is of the opinion that the document does not conform to the requirements of § 29-2-101(4) for an enforceable contract for sale of realty.
In Rogers v. Roop, 19 Tenn. App. 579, 92 S.W.2d 423 (1936), there was a deed which described the property as
the lot, a parcel of ground, situated in Knoxville, Tennessee, known and described under house Nos. 1209 and 1211, Western Avenue. 19 Tenn. App. at 581 [92 S.W.2d 423].
This Court held that a description by street and number stating the city in which located is sufficient to satisfy the statute of frauds.
The present document does not purport to describe real estate, indeed, its references to real estate are vague in the extreme. There is a reference to "transfer its tenancy ... for occupancy and use of premises", and "transaction of real estate". This more nearly resembles an assignment of a lease than a sale; and this conforms to the facts of the case, ownership by Massey and Craig and tenancy by the corporation.
In Brown v. Mays, 34 Tenn. App. 632, 241 S.W.2d 871 (1951), there was a suit upon notes given for rent under a lease. One of the defenses was that the lease was invalid, thereby preventing a valid consideration. The lease described the property as:
located in the city of Nashville, or suburbs, and fronting 50 feet on Hillsboro Road at 2211 Hillsboro Street, and being the property of said A.J. and Claire Brown, a brick store newly erected. 34 Tenn. App. at 635, 241 S.W.2d 871
This Court held the description to be sufficient.
The present description does not name the owners of the property or refer to its improvement. It therefore does not come within the holding of Brown v. Mays.
In Kirshner v. Feigenbaum, 180 Tenn. 476, 176 S.W.2d 806 (1944) there was a suit by a lessor to recover possession of office space leased to the defendant. The leased premises were described as:
Office space in the Exchange Building located at 311 Church Street, and being Office No. 209, and storage space in basement... . 180 Tenn. at 478.
The Supreme Court held that the name of the district, town, county, state or nation is not required where the writing is sufficiently specific to enable identification of the land. The Court observed that even though there might be Exchange Buildings in other cities, the possibility that any such building might be an office building with basement storage space located on Church Street at Number 311, and having an office number 209 was too remote to raise a reasonable doubt as to the identity of the property leased.
No such identifying peculiarity is found in the present document.
The document does not identify the property to be sold as "Massey-Craig Motors, 2122 North Locust Avenue, Lawrenceburg, Tennessee" as insisted by plaintiffs. Such description is the location of Massey-Craig Motors which was not owned by that corporation, but by the individual stockholders of Massey-Craig Motors.
If, as found by the Chancellor, the document expressed an intention to sell (and buy) Massey-Craig Motors as a going business, including the real estate leased by and used by it, then there were two parcels involved in the sale: the parcel leased from Massey and Craig and the parcel leased from others. There is no insistence or admission that the second parcel was included in the transaction.
In Baliles v. Cities Service Co., Tenn. 1979, 578 S.W.2d 621, suit was brought for specific performance of a contract to sell property described as
lots 99 and 100 in Cherokee Hills for residential purposes. 578 S.W.2d at 622.
The Supreme Court held the description to be inadequate, but enforced the contract under the doctrine of estoppel where sellers had placed the buyer in possession, permitted him to construct improvements thereon and aided him in securing a loan for this purpose.
*137 In Gorbics v. Close, Tenn. App. 1986, 722 S.W.2d 672, an action was brought to enforce a contract to sell land described as:
a one acre tract of land on the northwest corner of my land... . 722 S.W.2d at 673.
This Court held the description fatally deficient and refused enforcement even though plaintiffs had placed a trailer home in the vicinity and had made certain improvements, the value of which was less than the value of the occupancy.
The document in the present case simply does not set out an agreement for the sale of a particular tract of land, and is therefore unenforceable.
Appellant's second issue is as follows:
2. Whether this action is barred by the statute of frauds (T.C.A. § 29-2-101) because the paperwriting was not signed by the buyer named in the writing, Bond Motors, Inc., nor by its authorized agent.
The phrase "signed by the party to be charged therewith" means the owner of the land. Evidence of acceptance of the contract upon the part of the purchaser may be in parol as at common law. Patterson v. Davis, 28 Tenn. App. 571, 192 S.W.2d 227 (1945), and authorities cited therein.
It may be argued with considerable logic that it is grossly inconsistent to require the signature of the seller to validate a sale of real estate but to enforce the same agreement against the buyer who signed no written memorandum. No authority has been found wherein a buyer was forced to specifically perform or pay damages without his signature. All authorities examined involved an effort by the buyer to force the seller to specifically perform. Nevertheless, the Legislature has declared the policy of the State in words which the Supreme Court has held to mean that only the seller's signature is necessary for a valid contract to sell land. Any change in the law or its interpretation must come from the Legislature or the Supreme Court. Until then, it appears that prospective buyers of land should beware of any oral discussion of a written offer to sell real estate.
No viable merit is found in appellants' second issue.
Appellant's third issue is as follows:
3. Whether this action is barred by the statute of frauds (T.C.A. § 47-1-206) because the alleged contract was for the sale of personal property valued in excess of $5,000.00, which was not reasonably identified in the writing.
T.C.A. § 47-1-206(1) provides:
Except in the cases described in subsection (2) of this section, a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars ($5,000) in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent.
The exception of subsection 2 is for sales of goods of a price of $500.00 as provided in § 47-2-201 and security interests.
Plaintiffs insist that the document quoted above conforms to subsection (1) if § 47-1-206. The sales prices are stated variously in the instrument. On the first page, the prices are:
New car inventory at invoice
Parts at book value
Random parts $7,000
C P.D. Franchise No price
On the reverse side of the first page, the stated prices are:
"Continued real estate transaction" $5,700
Thereafter, the following figures appear without identification:
480,000
40,000 check
_______
440,000 ASAP
The committee comment under § 47-1-206 states:
... troubling abuses are avoided when the dollar limit is exceeded by requiring that the subject matter be reasonably identified in a signed writing which indicates *138 that a contract for sale has been made at a defined or stated price.
It is clear from the record that the document in question purports to evidence a sale of personal property of value in excess of $5,000.00 and that it is not signed by the defendant, Ed Bond Motors, Inc. As to this defendant, the defense of § 47-1-206 is most certainly good.
As to the remaining defendants, neither the subject matter nor the price thereof is reasonably identified, so that the document does not pass muster under § 47-1-206 as to the remaining defendants.
Appellants' third issue is found to have merit.
Appellant's fourth issue is as follows:
4. Whether this action is barred by the statute of frauds (T.C.A. § 47-2-201) because the alleged contract was for the sale of goods of a value in excess of $500, which goods were not reasonably identified in the writing.
T.C.A. § 47-2-201(1) provides:
Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
To the extent that the subject contract deals with the sale of goods of price $500.00 or more, the defense of Ed Bond Motors, Inc., is good because its signature does not appear on the subject document. As to the other defendants, the paper writing is not sufficient to indicate that contract for sale has been made between the parties.
There is merit to appellants' fourth issue.
Appellants' fifth issue is as follows:
Whether the defendants are equitably estopped from relying on the statute of frauds.
This Court cannot agree with the oral finding of the Trial Court that the defendants were estopped to plead the statute of frauds by entering the premises occupied by Massey-Craig Motors and, to some degree exercising management and/or control over the conduct of business on the premises. The record explains fully the reasons for this action and the reasons for abandoning the premises.
The basic cause of this controversy was the failure of plaintiffs to fully disclose to defendants the precarious state of the affairs of Massey-Craig Motors, including:
1. Prior cancellation of Chrysler Franchise.
2. Existing encumbrances on assets.
3. Cancellation of Chrysler line of credit.
4. True title of the real estate.
If estoppel is applicable to this case at all, it is estoppel against plaintiffs for their failure to disclose information pertinent to the property which they attempted to sell.
Where defendants did occupy the premises and use or sell some of the services or property of plaintiffs, defendants should be accountable to plaintiffs for the reasonable value of the services or property so used or sold. This, however, does not support estoppel as to pleading the statute of frauds in defense of a suit for specific performance or damages for breach of contract.
Plaintiffs cite Evans v. Belmont Land Co., 92 Tenn. 348, 21 S.W. 670 (1893). In that case, the Supreme Court held that the facts of the case did not support equitable estoppel in plaintiffs' favor. Moreover, the Court said:
This remedy is always so applied as to promote justice. It is available only for protection, and it cannot be used as a weapon of assault. It accomplishes that which ought to be done between man and man, and is not permitted to go beyond *139 that. [Dickerson v. Colgrove] 100 U.S. [(10 Otto)] [578, 25 L. Ed. 618] [1879].
92 Tenn. at 284, 285, 21 S.W.2d 670.
Appellants' fifth issue is meritorious.
Appellant's sixth issue is as follows:
Whether it is impossible for the plaintiffs to perform the alleged contract because they had terminated their franchise with Chrysler-Plymouth-Dodge and encumbered the property to be conveyed.
Although it is insisted by plaintiffs that the Chrysler franchise was not cancelled by Chrysler until April 9, a copy of the cancellation by Massey-Craig was in the possession of Chrysler Credit at all times after January 8, 1986, and Chrysler Corporation had been notified by Chrysler credit to stop shipping cars to Massey-Craig. Massey-Craig had no legal or moral right to attempt to sell a franchise under the circumstances.
A buyer may be discharged if there is a breach of the contract in some substantial particular which goes to the essence of the contract and renders the seller incapable of performance as intended. German American Monogram Mfrs. v. Johnson, 133 Tenn. 571, 182 S.W. 595 (1916).
Appellants' sixth issue has merit.
Appellants' seventh and eighth issues are as follows:
7. Whether the Court erred in awarding judgment against the individual defendants when the writing on which the action was based was between Massey-Craig Motors, Inc., as seller, and Bond Motors, Inc., a corporation, as buyer.
8. Whether the complaint failed to state a claim upon which any relief could be granted to the plaintiffs against the individual defendants.
No merit is found in these issues. T.C.A. § 48-1-1405, Thompson and Green Machinery Inc., v. Music City Lumber Company, Tenn. App. 1984, 683 S.W.2d 340.
Appellant's ninth and eleventh issues are as follows:
9. Whether the paperwriting is so lacking in terms which plaintiffs allege were part of the contract and is so ambiguous and uncertain and incapable of reasonable construction that it will not support a recovery against the defendants.
11. Whether there was a contract between the parties.
This Court finds the document relied upon to be so devoid of specificity and meaning as to be no contract at all. It is possible that the parties had in their separate minds the nature of an agreement, but there is no evidence that their mental concept of the agreement was even orally agreed between then, much less expressed in a written contract.
The terms of a contract must be sufficiently definite to be enforced. V.L. Nicholson Co. v. Transcon Inv. & Financial Ltd., Inc., Tenn. 1980, 595 S.W.2d 474; Price v. Mercury Supply Co., Tenn. App. 1984, 682 S.W.2d 924, Forest Inc. of Knoxville v. Guaranty Mortgage Co., Inc., Tenn. App. 1975, 534 S.W.2d 853.
Appellants' ninth and eleventh issues are meritorious.
Appellants' tenth issue is:
Whether Massey-Craig Motors, Inc., authorized the sale or execution of the paperwriting.
No authority is cited that the two sole stockholders of a corporation cannot make a binding contract for the corporation. No such authority is known to this Court.
No merit is found in the tenth issue.
Appellants' 12th and 13th issues are as follows:
12. Whether plaintiffs breached the alleged contract and the implied warranties set out in T.C.A. § 47-2-312 and § 47-2-725 by failing to disclose the sales tax lien, Chrysler credit lien and deed of trust.
13. Whether plaintiffs violated T.C.A. § 47-2-312, requiring them to convey the property, free from any security interest, lien or encumbrance of which the purchaser had no knowledge at the time the paperwriting was executed.
*140 As already indicated, the failure of plaintiffs to make appropriate disclosure of the infirmities in the title of the seller to the various items to be sold was sufficient to repel them from enforcing their contract. See T.C.A. §§ 47-2-312(1) and 47-2-725(2).
Moreover, before a seller can claim specific performance (recovery of purchase price) or damages for refusal of performance, the seller must show a satisfactory tender of that which was to be purchased. In the present case this would include: (1) a tender of a deed conveying good title to the real estate; (2) a tender of proper documents for the transfer of a viable franchise for selling Chrysler products; (3) tender of a conveyance of all the personal property involved free of encumbrance. None of these prerequisites are shown.
The 12th and 13th issues are meritorious.
Appellant's 14th and last issue is as follows:
14. Whether the Court erred in setting the amount of the compensatory damages without regard to the fair market value of the property.
If damages be due a seller for failure of the buyer to accept performance, the measure of damages is the difference between the contract price and the fair market value of the property at the time of the breach. Yarbrough v. Stiles, Tenn. 1986, 717 S.W.2d 886; Turner v. Benson, Tenn. 1984, 672 S.W.2d 752. The record shows the fair market value of the realty on the "date of breach" to be $375,000. The record shows that, "at the time of breach" the office equipment was worth $10,000 and the parts were worth $34,000. There is no evidence of the value of other items "at the time of breach", however, on January 22, 1986, Mr. Massey gave Mr. Thornton a statement that the used car moveable building was worth $10,000 and the shop equipment was worth $20,000. The foregoing figures total $449,000.
The 14th issue is meritorious.
This Court is satisfied that the alleged contract is unenforceable as a matter of law for the various reasons set out above.
This Court is also satisfied that the $10,000 counterclaim should be disallowed and that this portion of the judgment should be affirmed.
The judgment of the Trial Court dismissing the counterclaim is affirmed. In all other respects, said judgment is reversed and the suit of plaintiffs is dismissed. All costs, including costs of this appeal are taxed against plaintiffs. The cause is remanded for any further necessary procedures.
Affirmed in part, reversed in part and remanded.
LEWIS and CANTRELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2430872/ | 289 F. Supp. 2d 678 (2003)
UNITED STATES of America Plaintiff,
v.
Harold ROEBUCK Defendant.
No. CR.2002-171.
District Court, Virgin Islands, St. Croix Division.
November 6, 2003.
*679 Azekah E. Jennings, Eausa, Ernest F. Batenga, Ausa, St. Croix, VI, for the plaintiff.
Lee J. Rohn, St. Croix, VI, for the defendant.
MEMORANDUM
MOORE, District Judge.
Only a psychic pleader could allege that because a defendant has published uncomplimentary statements concerning a judge, the latter will be unable to give his critic a fair and impartial trial. If such a fantastic procedure were permitted, a defendant could get rid of a judge by the simple expedient of publishing a scurrilous article, truthfully alleging that the article was published, and clinching the matter by asserting the bald conclusion that, since the article was uncomplimentary, the judge must of necessity be prejudiced against the publisher![1]
The scurrilous article involved in this case is a letter written by Lee J. Rohn, the attorney for defendant Harold Roebuck, and published in the St. Thomas Source, a local online newspaper, on September 3, 2002.[2] Attorney Rohn wrote the letter in response to an editorial published in the St. Thomas Source that alleged politics, and not my performance as a judge, was the motivating factor behind opposition to my reappointment for another term as district judge.[3] Attorney Rohn's letter claimed that the opposition to my reappointment *680 was driven not by politics but instead by alleged instances of judicial misconduct. The letter went on to provide the following accusations:
Judge Moore's problems lie in the allegations of inappropriate behavior while he was on the bench. These include, but are not limited to, repeatedly being reversed by the Third Circuit [Court of Appeals], repeated disagreements with the judges of the Third Circuit, rude behavior toward attorneys practicing before him, including, but not limited to, refusing to grant a trial continuance to a seven months pregnant attorney despite a medical necessity; ordering attorneys to be in his court despite the fact that they were also supposed to be before the Third Circuit at the same time; complaints by jurors that they were coerced and harassed and subjected to ex parte instructions and conversations by Judge Moore while in jury deliberations; jurors complaints of being castigated after reaching a verdict because it was contrary to what Judge Moore would have decided; keeping the court house open late to accommodate the filing of a petition to keep poor housing out of a neighborhood that Judge Moore lived in, and then granting the motion despite a conflict that required recusal; repeatedly imposing sanctions without notice and a proper ability to respond; [and] being vindictive against litigants who took a position contrary to his.
Attorney Rohn then uses the letter she voluntarily published against me to argue that I must recuse myself from presiding over Roebuck's criminal trial because those accusations have caused me to be prejudiced against her. Although it appears that this time Attorney Rohn has filed similar motions in each of her pending cases, her motions are simply a rehash of her earlier blanket application to have me disqualified from all of her cases because I do not like her, which was summarily rejected by the Court of Appeals at oral argument from the bench. See In re Recusal Motion, 118 F. Supp. 2d 622 (D.Vi. 2000), aff'd from bench at oral argument, 263 F.3d 56 (3d Cir.2001).
Here, as before, I will not allow Ms. Rohn to so crassly manipulate the justice system.
The provision Attorney Rohn relies on is 28 U.S.C. § 455 which requires that I disqualify myself in any proceeding (1) where I have a personal bias or prejudice against a party or (2) in which my impartiality might reasonably be questioned. See 28 U.S.C. § 455(a-b). I first state that I harbor no actual bias or prejudice against Mr. Roebuck. Having no actual bias or prejudice, I next must assess whether a rational, objective member of the public who knows all of the relevant facts might fairly question my impartiality.[4] The only item Attorney Rohn has submitted to suggest that I have any antipathy toward Mr. Roebuck is my March 26, 2003 order shortening his time to file a response, if any, to the government's opposition to his motion to recuse. I exercised my discretion to require an earlier filing *681 under Rule 45 of Federal Rules of Criminal Procedure to make sure that I would have time to review the defendant's response before the hearing that was then scheduled for April 4th. Absent my order, the response would not have been due until six days after the hearing, as the defendant had not yet filed his motion to continue the hearing. No rational, objective member of the public who knows all of the relevant facts could possibly conclude from this procedural ruling that my impartiality might reasonably be questioned regarding Mr. Roebuck.
Having disposed of the only legally colorable basis for a motion to recuse, I turn to Rohn's reframing of her earlier claim that I had to recuse myself from all her cases because she thought I do not like her. This time she contends that I got so angry at her after her letter was published in the St. Thomas Source that I "lost all objectivity with regard to the cases in which she was attorney of record." In making her argument, Attorney Rohn has badly misrepresented the record. First, I entered no blanket order of recusal from all of Lee Rohn's cases. After all, the Court of Appeals for the Third Circuit had summarily dismissed Ms. Rohn's similar claim that I had to recuse myself from all her cases.[5] Second, I entered recusal orders in only some, but not all, of Attorney Rohn's then-pending cases.[6] Third, I have not made any rulings in any of those cases from which I have recused myself. The Selkridge matter is one of those in which I have never entered an order of recusal. Thus, Attorney Rohn's claim that I deliberately "unrecused" myself just to be able to rule against her client is patently false. Although the magistrate judge inadvertently included Selkridge among those cases sent to the judge who had been designated to oversee the Rohn recusal cases for settlement negotiations,[7] the fact remains that I never recused myself from Selkridge.[8] I ruled on the facts and law that I believe governed the decision of the *682 case. I understand my rulings are on appeal, and, as always, the Court of Appeals will have the last word if it disagrees with my decision.
I did recuse myself from some of Attorney Rohn's then-pending cases because her personal attack in the St. Thomas Source stung when I first read it. I reiterate that these recusal orders had absolutely nothing to do with any antipathy or prejudice against any of her clients or any concern that I could not be fair and impartial in handling their cases. Several months have now gone by and although I was initially upset at the viciousness of the letter, the passage of time has allowed me to reflect, and, as the saying goes, time heals all wounds. I have concluded that this was just Lee Rohn being Lee Rohn and doing what Lee Rohn thinks she must do to win. In other words, I believe Attorney Rohn's personal attack on one of the two sitting judges in this jurisdiction was nothing more than a calculated litigation tactic that would be labeled judge shopping in most places.[9] I am saddened that Attorney Rohn seems convinced that it is necessary to litigate in this manner because she is a very successful and competent attorney, as I have always acknowledged. Nothing Lee Rohn does surprises me anymore, however, although subpoenaing all the federal judges in the jurisdiction is a high point of ingenuity and creativity in attempting to manipulate the system.[10] I do not believe, however, that an attorney should be allowed to use her calculated personal attack on a sitting judge as a technique to prevent that judge from presiding over any of her cases, especially in a small district with only two judges.
At this late date, any pain or anger I felt from Attorney Rohn's letter has long *683 since passed, especially considering that all the issues surrounding my reappointment have been resolved. Even though it has been over a year since I was first told by the White House that the President had selected someone else to fill this position, I am still here. The White House recently informed me for the second time that I will not be reappointed, advised me that this President does not believe in reappointing sitting territorial judges,[11] and reported that the President again has selected someone else. If, as Attorney Rohn claims, I am forever biased against those who voiced their opinion against my reappointment, I should recuse myself from all cases involving the United States because of the resentment and anger some might think such shabby treatment from this President's political administration could engender. I take a different view, however. Definitely knowing that one is not going to be reappointed is just as effective a guarantee of judicial independence, though clearly not as satisfying or permanent, as the guarantee of life-time appointment under Article III that protects district judges sitting the a State of the United States.[12] Now that the question of my reappointment finally has been resolved, I have no reason to have any favorable or unfavorable bias toward Attorney Rohn, the United States, or any other party who voiced their opinion on my reappointment, whether their opinion was positive or negative. Simply, I am now free to preside without the issue of reappointment even lurking in the back of my mind.
Again, no reasonable person familiar with all the facts would believe that Attorney Rohn's letter might reasonably question my impartiality regarding Mr. Roebuck or any of Attorney Rohn's other clients. See, e.g., GUIDE TO JUDICIARY POLICIES & PROCEDURES, CODES OF CONDUCT FOR JUDGES & JUDICIAL EMPLOYEES, v. II, Ch. 5, § 3.6-8 ("A judge's impartiality cannot be reasonably questioned merely because an attorney opposed the judge's Senate confirmation."). To paraphrase a noted treatise on federal practice, an attorney cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against her clients. See 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3542, at 577-78 (2d ed. 1984) ("A party cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against him ...."). The Court of Appeals for the Tenth Circuit similarly has noted that
the mere fact that a defendant has made derogatory remarks about a judge is insufficient to convince a sane and reasonable mind that the attacked judge is biased or prejudiced. The same is true regarding an objective person, knowing all the facts, assessing whether the judge's impartiality may reasonably be questioned. Any other conclusion would allow defendants to cause the recusal of judges simply by making scurrilous and disparaging remarks or charges about them. Permitting parties to manipulate the system with falsehoods or insults in such a manner would be a bizarre application of 455(a) ....
United States v. Cooley, 1 F.3d 985, 994 n. 5 (10th Cir.1993) (emphasis in original; citations and internal quotations omitted).
*684 I believe that Lee Rohn's problem with me has nothing to do with a concern that her clients do not receive fair and impartial treatment before me. Rather, I am convinced that it stems from my insistence that Attorney Rohn follow the rules, as well as from my order sanctioning her for using gutter language in depositions. Saldana v. Kmart Corp., 84 F. Supp. 2d 629 (D.Vi.1999). A deposition is an integral part of the judicial process in which a witness is compelled to appear to answer questions posed by attorneys from all parties under oath before a court reporter. Even though no judge is present, the attorneys taking the deposition are required to conduct themselves professionally as officers of the court and as if a judge were presiding. The Court of Appeals disagreed, finding that the repeated use of the word "fuck" in a deposition before a witness who was compelled under penalty of law to be there "did not rise to the level necessary to trigger sanctions" and vacated the very mild sanction I had imposed. See Saldana v. Kmart Corp., 260 F.3d 228 (3d Cir.2001).
In sum, I do not believe that an attorney should be allowed to use her calculated personal attack on a sitting judge as a technique to prevent that judge from presiding over her cases.
A judge is not required to recuse simply because a party, or an attorney for a party, personally attacked the judge in other proceedings. E.g., United States v. Olander, 584 F.2d 876, 887 (9th Cir. 1978) (defendant had been leader in efforts to impeach the judge, including newspaper and television appearances; motion to disqualify denied, and affirmed on appeal), vacated on other grounds, 443 U.S. 914, 99 S. Ct. 3104, 3105, 61 L. Ed. 2d 878 (1979). "Prior written attacks upon a judge are likewise legally insufficient to support a charge of bias or prejudice on the part of a judge toward the author." United States v. Bray, 546 F.2d 851, 858 (10th Cir.1976).
United States v. Marshall, 77 F. Supp. 2d 764, 768 (N.D.Tex.1999). Because there is no evidence or reasonable inference in this case that I am unable to provide Mr. Roebuck with a fair and impartial trial, I will deny the motion to recuse.
APPENDIX
Dear Source,
I read your editorial on Judge [Thomas K.] Moore (see "Politics appears to rule over performance"), and it is so inaccurate I have to respond.
The failure of Judge Tom Moore to be recommended for reappointment has much less to do with politics and more to do with the allegations of inappropriate behavior while he was on the bench.
First of all, the supposedly "very favorable recommendation" from the bar was anything but that. Of the over 450 bar members, less then 25 percent even bothered to return the questionnaires. Many in the bar, despite the poll being the second attempt to poll the members, still did not receive questionnaires. Of those who did, many were afraid to send them in, fearing retribution from Judge Moore. Further, the V.I. Bar Association, unfortunately, has lost touch with the attorneys. It rarely can obtain a quorum to do business, and the last meeting on St. Croix was attended by less then 15 attorneys.
Secondly, Judge Moore's problems lie in the allegations of inappropriate behavior while he was on the bench. These include, but are not limited to, repeatedly being reversed by the Third Circuit [Court of Appeals], repeated disagreements with the judges of the Third Circuit, rude behavior toward attorneys practicing before him, including, but not limited to, refusing to *685 grant a trial continuance to a seven months pregnant attorney despite a medical necessity; ordering attorneys to be in his court despite the fact that they were also supposed to be before the Third Circuit at the same time; complaints by jurors that they were coerced and harassed and subjected to ex parte instructions and conversations by Judge Moore while in jury deliberations; jurors complaints of being castigated after reaching a verdict because it was contrary to what Judge Moore would have decided; keeping the court house open late to accommodate the filing of a petition to keep poor housing out of a neighborhood that Judge Moore lived in, and then granting the motion despite a conflict that required recusal; repeatedly imposing sanctions without notice and a proper ability to respond; [and] being vindictive against litigants who took a position contrary to his.
I have been actively involved in the reappointment issue. I can assure you that the opposition to Judge Moore's reappointment is not limited to Holland Redfield. As a St. Thomas attorney expressed to me, I wouldn't be so against him if he did not get such perverse pleasure at sentencing young Virgin Islanders "It is like watching him pull the wings off a fly."
The movement not to reappoint Judge Moore is far broader than just Holland Redfield and cuts across policitical [sic] lines and is widespread in the Virgin Islands bar. There is a consensus that he does not have the judicial temperament needed for the position.
Lee J. Rohn, attorney St. Croix
ORDER
For the reasons set forth in the above Memorandum of even date, it is hereby
ORDERED that the defendant's motion for judicial recusal is DENIED.
NOTES
[1] United States v. Fujimoto, 101 F. Supp. 293, 296 (D.Hawai'i 1951).
[2] Letter of Lee J. Rohn, attorney St. Croix, to the St. Thomas Source (Sept. 3, 2002), at http://new.onepaper.com/stthomasvi/?v=d & i= & s=Commentary;Open + Forum & p =54558. The full text of the letter is attached as an Appendix.
[3] The guarantee of life-time appointment under Article III is denied to district judges presiding in territories of the United States. Judges sitting in the District Court of the Virgin Islands are not Article III judges and, therefore, lack life tenure. See Revised Organic Act of 1954 § 21, 24; 48 U.S.C. § 1611 (2002). The Revised Organic Act of 1954 is found at 48 U.S.C §§ 1541-1645 (1995), reprinted in V.I. CODE ANN., Historical Documents, 73-177 (codified as amended) (1995) ["Revised Organic Act"]. The District Court of the United States Virgin Islands is an Article IV court and the district court judges are appointed for 10-year terms. See Revised Organic Act § 24; 48 U.S.C. § 1614(a); United States v. George, 625 F.2d 1081, 1089 (3d Cir.1980) (Maris, J.).
President George Herbert Walker Bush signed my 10-year commission as a district judge of the District Court of the on June 30, 1992 and my ten-year term accordingly expired on June 30, 2002. I continue to serve until I resign or my successor is sworn in.
[4] See, e.g., Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.1987). In making these determinations, I need not accept all of Ms. Rohn's allegations as true. See United States v. Sciarra, 851 F.2d 621, 625 n. 12 (3d Cir.1988) ("There is considerable authority for the proposition that the factual accuracy of affidavits submitted pursuant to 28 U.S.C. § 455 may be scrutinized by the court deciding the motion for recusal.") (citations omitted); see also Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1227 (10th Cir.1987); In re Beard, 811 F.2d 818, 826-27 (4th Cir.1987); United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir.1985); Phillips v. Joint Legislative Comm. on Perf. & Expend. Review, 637 F.2d 1014, 1019 n. 6 (5th Cir.1981).
[5] See In re Application for Change or Reassignment of Judge, 263 F.3d 60 (3d Cir.2001); In re Change or Reassignment of Judge Pursuant to 28 U.S.C. Sec. 144 & 155, 263 F.3d 56 (3d Cir.2001).
[6] I issued no order recusing myself "from all of the approximately thirty-four cases pending before [me]." I have never recused myself from any of the following cases: Donastorg v. Innovative Communications Co., Civ. No.2002-97 (St. Croix Div.); Mahoney v. Bulhof, Civ. No.2001-154 (St. Thomas Div.); Sexton v. Equivest, Civ. No.2002-96 (St. Thomas Div.); Collins v. Castle Acquisitions, Civ. No.1999-212 (St. Thomas Div.); Khan v. Soleimani, Civ. No.2000-223 (St. Thomas Div.); Green v. Honda Motor Co., Civ. No.2002-159 (St. Thomas Div.); Soltau v. CTF St. Thomas Corp., Civ. No.1998-143 (St. Thomas Div.); Domino Oil v. Phoenix Assurance Co., Civ. No.1996-99 (St. Thomas Div.); Dabrowski v. Emerald Beach Corp., Civ. No.2001-121 (St. Thomas Div.); Phillips v. Waterbay Mgmt. Corp., Civ. No.2000-72 (St. Thomas Div.); Smith v. Merchant's Mkt., Civ. No.2002-14 (St. Thomas Div.); Selkridge v. United of Omaha (Selkridge I), Civ. No.2001-143 (St. Thomas Div.); Selkridge v. United of Omaha (Selkridge II), Civ. No.2002-73 (St. Thomas Div.).
[7] Senior United States District Judge Stanley Brotman was designated by the Chief Judge of the Circuit to deal with the Rohn recusal cases.
[8] These facts distinguish the cases Attorney Rohn relied on in support of her motion for recusal. For example, in Nelson v. Fitzgerald, 403 P.2d 677 (Alaska 1965), the Supreme Court of Alaska found that the trial judge should have recused himself from the underlying criminal matter because he had previously issued a blanket recusal from any matter involving a particular firm because the judge acknowledged existing bias toward the firm. Here, I have issued no blanket recusal nor do I acknowledge any present bias toward Attorney Rohn. Likewise, in State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85 (1919), the Supreme Court of Missouri recused a judge from sitting on a case based on a perceived lack of impartiality from the judge's rulings against the government without the benefit of any argument and not on a series of unflattering newspaper articles allegedly inspired by government counsel. Finally, in Haas v. Pittsburgh Nat. Bank, 627 F.2d 677 (3d Cir.1980), the Third Circuit Court of Appeals merely found that the trial judge did not abuse his discretion in recusing himself after a series newspaper articles questioning his impartiality, not that he was compelled to do so.
[9] In an affidavit submitted in support of her recusal motion, Attorney Rohn made the following statement: "I advised Magistrate Judge Barnard that after all of the work, time and effort that had been put into my previous efforts to obtain the recusal of Judge Moore from all of my cases because of his bias, all it took was a critical letter to the editor to get him to recuse himself from every single case."
[10] Attorney Rohn issued subpoenas on every federal judge in the Territory to compel them to testify at the April 4th recusal hearing:
[T]he Honorable Raymond L. Finch, Chief Judge of the Virgin Islands, the Honorable Thomas K. Moore, District Court of the Virgin Islands, the Honorable Geoffrey W. Barnard, Magistrate Judge, District Court of the Virgin Islands (Division of St. Thomas and St. John), and the Honorable Jeffery L. Resnick, Magistrate Judge, District Court of the Virgin Islands (Division of St. Croix). (Docket Entry Nos. 33-36; Pl.'s Ex B and B1; Def.'s Ex. E.) Defendant also served subpoenas on the law clerks of these Judges. Additionally, Attorney Rohn wrote to the Honorable Edward R. Becker, Chief Judge of the Third Circuit Court of Appeals, requesting he be deposed by telephone "to establish a factual record as to [Judge Moore's] statements as to articles I [Attorney Rohn] have written in the paper and the necessity of his recusing himself from all of my cases" which she intended to present .... (Def.'s Ex. G.)
United States v. Roebuck, 271 F. Supp. 2d 712, 717 (D.Vi.2003) (Brotman, J.). The Honorable Stanley S. Brotman, Senior Judge, sitting by designation, found that "Judge Moore cannot be compelled to testify as to the facts underlying his determination to recuse himself from Attorney Rohn's cases beginning in September 2002 ..." and granted the Government's motion for a protective order and to quash the subpoenas. Id. at 726.
[11] No other President, Democrat or Republican, has ever refused to reappoint a sitting district judge in the Virgin Islands who was willing and able to serve another term.
[12] See U.S. CONST. art III., § 1 (providing for appointment during good behavior); see also supra footnote 3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2821621/ | Electronically Filed
Intermediate Court of Appeals
CAAP-14-0000444
29-JUL-2015
08:24 AM | 01-03-2023 | 07-29-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908241/ | Maverick Drilling & Well Service v. Railroad Commission et al
IN THE
TENTH COURT OF APPEALS
No. 10-96-058-CV
MAVERICK DRILLING & WELL SERVICE CO., INC.,
Appellant
v.
RAILROAD COMMISSION OF TEXAS, ET AL.,
Appellees
From the 13th District Court
Navarro County, Texas
Trial Court # 93-00-03294-CV
O P I N I O N
Maverick Drilling and Well Service ("Maverick") appeals from an order dismissing for
want of jurisdiction its suit against the Railroad Commission of Texas ("RRC"). As Maverick
framed the issue in oral argument: The only question is whether sovereign immunity applies when
the State contracts with a citizen. Because we believe that a waiver of sovereign immunity is a
policy decision to be made by the legislature, we affirm the judgment.
PROCEDURAL BACKGROUND
In late 1991, the RRC awarded Maverick a bid to plug five oil wells. After Maverick
plugged one well, the RRC cancelled the awards on the remaining four wells.
Maverick
requested payment of $48,151.71; the Commission paid $24,251.00.
Maverick sued the RRC seeking (1) the unpaid balance for plugging the first well and (2)
"$27,650.00 which was the value of the remainder of the contract which was wrongfully
canceled." Maverick also sued Randall Earley, a RRC official, for tortious interference with its
contract. The RRC filed a Plea to the Jurisdiction asserting that Maverick had not received
legislative consent to sue the State or its agencies. Maverick conceded that it had not received
consent to sue, but asserted that in a breach-of-contract suit (1) legislative consent is not a
prerequisite and (2) sovereign immunity violates the Open Courts and Due Course of Law
provisions of the Texas Constitution.
POINTS OF ERROR
In three points, Maverick asserts that the court erred in ruling that RRC was immune from
suit.
entering into contract waives immunity
Maverick's first point asserts that the court's dismissal is erroneous because sovereign
immunity from suit is waived (and thus legislative consent unnecessary) in breach-of-contract
suits. Sovereign immunity consists of two elements: immunity from liability and immunity from
suit. Missouri Pacific R.R. v. Brownsville Navigation Dist., 453 S.W.2 812, 813 (Tex. 1970).
Unless waived, the State retains its sovereign immunity. Id.
The State waives its immunity from liability when it enters into a contract. Fristoe v.
Blum, 92 Tex. 76, 45 S.W. 998, 999 (1898). The question here is: Does the State waive its
immunity from suit when it enters into a contract? Several courts of appeals have answered that
question in the negative. Texas Southern Univ. v. Federal Sign, 889 S.W.2d 509, 511 (Tex.
App.—Houston [14th Dist.] 1994, writ granted) ("[E]ven though the State waives its immunity
from liability when it enters into a contract, it retains its immunity from suit."); Green Int'l, Inc.
v. State, 877 S.W.2d 428, 432-33 (Tex. App.—Austin 1994, writ denied, order withdrawn,
dism'd); see also University of Texas Sys. v. Courtney, 1996 WL 490783, at *2 (Tex. App.—Fort
Worth, August 29, 1996, n.w.h.) ("[T]he trial court did not have jurisdiction over Courtney's
contract claim. . . . [P]ermission of the state is required to sue the state for breach of contract.").
We recognize that the Dallas Court has stated that "the sovereign immunity doctrine does
not apply to contracts made by the State, or any of its agencies under our Constitution . . . ."
Industrial Const. Mgmt v. DeSoto Indep. Sch. Dist., 785 S.W.2d 160, 163 (Tex. App.—Dallas
1989, no writ); see also Texas Dep't of Health v. Texas Health Enterp., Inc., 871 S.W.2d 498,
506 (Tex. App.—Dallas 1993, writ denied). We likewise acknowledge Justice Kidd's well-reasoned dissent in Green. Green, 877 S.W.2d at 439-41 (Kidd, J., dissenting) ("[T]he State may
not hide behind the cloak of sovereign immunity to escape its legitimate contractual obligations.").
Our Supreme Court has agreed to review Texas Southern Univ., 889 S.W.2d 509. 39 Tex.
Sup. Ct. J. 92 (November 7, 1995). It specifically granted writ of error on three points, two of
which are germane to this appeal: (1) whether immunity from suit is waived when the State or
its agencies enter into a contract with a citizen; and (2) whether immunity from suit in a breach-of-contract suit violates the Open Courts and Due Course of Law provisions of the Texas
Constitution.
Until the Court determines otherwise, we will follow the Austin Court's reasoning in
Green. 877 S.W.2d at 433. Although the justifications for sovereign immunity have been
criticized—particularly in contractual situations—the waiver of sovereign is a matter properly
addressed to the legislature. Id. Maverick concedes that it did not obtain the State's consent to
be sued. Thus, the RRC retained immunity from suit, depriving the court of jurisdiction. Id. We
overrule point one.
open courts doctrine
Maverick's second point asserts that the court's ruling violates the open courts and due
course of law provisions of the Texas Constitution. Tex. Const. art. I, §§ 13, 19. The open-courts provision guarantees a litigant's right to redress if (1) the litigant has a cognizable common-law cause of action and (2) the restriction on the litigant's right to bring that cause of action is
unreasonable or arbitrary when the effect of the restriction is balanced against its purpose and
effect. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983).
The Austin Court stated in Green: "Sovereign immunity is a common-law doctrine; it
preceded the current Texas Constitution. Thus, we must read the open-courts provision in light
of the preexisting concept of sovereign immunity. We find no authority holding that the open-courts provision was intended to abolish or limit sovereign immunity." Green, 877 S.W.2d at
437. Further, "in light of the long-standing recognition of the doctrine of sovereign immunity,"
the Austin Court did not find that its application was an "unreasonable or arbitrary restriction of
Green's right to redress." Id. Similarly, Maverick has not met the two-prong test to establish an
open-courts violation. See Sax, 648 S.W.2d at 666. We overrule point two.
public taking
Maverick's final point asserts that it pled a cause of action for an unconstitutional taking,
which is an exception to the doctrine of sovereign immunity. "No person's property shall be
taken, damaged, or destroyed for or applied to public use without adequate compensation being
made . . . ." Tex. Const. art. I, § 17. We again rely on the Austin Court's analysis in Green.
877 S.W.2d at 433-35. The RRC has paid some monies to Maverick over the course of the
performance of the contact. The facts alleged do not indicate that the RRC had the intent to "take"
for public use under its powers of eminent domain. Id. at 435. We overrule point three and
affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed September 18, 1996
Do not publish
t would be
inequitable or unjust to allow the judgment to stand. Id.
Under general equitable principles, TASB’s right to reimbursement is subject to Ward’s
right to first be made whole. Ortiz v. Great Southern Fire & Cas. Ins. Co., 597 S.W.2d 342,
343 (Tex. 1980); Esparza, 909 S.W.2d at 552. The court found Ward was not made whole by
the settlement and TASB has not challenged that finding. Because there is evidence in the
record to support the court’s finding, it is binding on us. McGalliard v. Kuhlmann, 722
S.W.2d 694, 696 (Tex. 1986); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d
626, 629 (Tex. App.—Fort Worth 1999, no pet h.). Furthermore, the court found that Ward
had recovered the maximum amount of insurance available to compensate him for his injuries,
a finding which is also unchallenged and supported by the record. Thus, the court acted within
its discretion in refusing to require Ward to reimburse TASB from the settlement monies.
Ortiz, 597 S.W.2d at 343; Esparza, 909 S.W.2d at 552, 553.
The court correctly recognized that the subrogation right conferred on TASB by section
172.015 is governed by equitable principles. No abuse of discretion has been shown by the
court’s balancing of the equities between the parties. We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed April 26, 2000
Publish | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2430131/ | 326 S.W.2d 535 (1959)
Henrietta NELSON, Appellant,
v.
CONSUMERS COUNTY MUTUAL INSURANCE COMPANY et al., Appellees.
No. 13484.
Court of Civil Appeals of Texas, San Antonio.
June 24, 1959.
Rehearing Denied August 12, 1959.
*536 Chas. F. Nichols, San Antonio, for appellant.
Chas. H. Jackson, Jr., San Antonio, for appellees.
BARROW, Justice.
This is a suit by Henrietta Nelson, a widow, against Consumers County Mutual Insurance Company and Carl Schweers, upon an automobile policy covering collision, fire, etc. Joined in the suit also are Carl Schweers and Motor Finance Company in an action for usury in connection with the alleged financing of an automobile purchased by plaintiff from Odous C. Tindall, a used car dealer in the City of San Antonio. On motion of the Insurance Company, the court severed the usury case, and only the case against the Insurance Company and Carl Schweers on the automobile policy proceeded to trial. The suit was tried to a jury, but at the conclusion of the evidence the court withdrew the case from the jury and rendered judgment for the defendants. From that judgment Henrietta Nelson has appealed.
Appellee Carl Schweers was alleged to be an agent and underwriter for Consumers County Mutual Insurance Company and also a joint owner with one Marvin H. Hirsch, of the business known as Motor Finance Company.
The pertinent facts in this case are, that appellant on November 27, 1956, purchased a 1952 Chevrolet 5-Passenger Coupe automobile from Odous C. Tindall, and as a part of the purchase price therefor executed a note to Tindall for the sum of $660.96, secured by a chattel mortgage. Thereafter said note was transferred to Motor Finance Company, and the insurance policy was purchased from and issued by Consumers County Mutual Insurance Company, with loss payable clause in favor of Motor Finance Company "as its interest may appear." On January 19, 1957, the automobile in question was involved in a collision in San Antonio, Texas, and suffered damage. Thereafter, on February 8, 1957, appellant filed with appellee Insurance Company a proof of loss, under the terms of said policy.
Appellant having defaulted on her note and chattel mortgage, the Motor Finance Company on May 10, 1957, took possession of said automobile in its damaged condition, under the terms of the chattel mortgage. *537 The Motor Finance Company had the damage to the car repaired and presented the claim for payment of loss to the Insurance Company, as provided in the policy. The Insurance Company, upon the Finance Company's proof of loss and claim therefor, settled and paid the loss to the full extent of the cost to repair the damage on said automobile, less $50 deductible.
The controlling issues in this case are presented by appellant's fourth and fifth points. By the fourth point appellant contends that the case should be reversed because the settlement made by the Insurance Company with the Finance Company, under the power of attorney contained in the chattel mortgage, was not binding on her, because the power had been revoked. By the fifth point she contends that such settlement did not extinguish her rights under the claim she filed with the Insurance Company and the suit she filed against it.
The mortgage executed by appellant as a part of the purchase price for the automobile contained the following provision:
"Mortgagor further covenants and agrees * * * to keep said property insured against loss or damage against fire, theft, collision or upset, and against property damage and public liability at the election of Mortgagee, all in companies acceptable to Mortgagee with loss payable to Mortgagee as Mortgagee's interest may appear."
It also provided as follows:
"Mortgagor further irrevocably appoints Mortgagee his agent and attorney to receive any return premiums and to adjust, compromise, settle and release any and all insurance claims for damage to said property under any and all insurance policies above provided for, in Mortgagor's name or jointly with Mortgagor or in Mortgagee's name alone; and further appoints Mortgagee his agent and attorney to endorse and cash any insurance checks or drafts in Mortgagor's name or otherwise to collect and receive the full proceeds from any such insurance policy or policies. This appointment shall specifically pass to and vest in any transferee or other holder of this mortgage."
The policy issued to appellant contained the loss payable clause in favor of Motor Finance Company, the holder of the mortgage, and also contained the provision limiting the liability of the Insurance Company, as follows:
"Limit of Liability; Settlement Options; No AbandonmentThe limit of the company's liability for loss shall not exceed either (1) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss or (2) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, or (3) the applicable limit of liability stated in the declarations.
"The company may pay for the loss in money or may repair or replace the automobile or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is replaced, or may take all or such part of the automobile at the agreed or appraised value but there shall be no abandonment to the company."
Appellant contends that appellee Insurance Company had no right to settle with Motor Finance Company, for the reason that she had made a claim for herself and had filed suit prior to the settlement, and that her action in so doing had the effect of revoking the power of attorney contained in the mortgage. We overrule that contention. Such action on her *538 part does not have that effect. Moreover, this power was coupled with an interest in the subject matter. The contract shows on its face that it is a power invested in the mortgagee for the purpose of safeguarding its own interest and cannot be revoked by the principal or mortgagor. 2 Tex.Jur. 628, § 210.
The proceeds of this policy became the property of the mortgagee and was payable to it to the extent of the amount due on the mortgage. The expression "as its interest may appear" is defined as the indebtedness the mortgagor owes under his note and mortgage. 24-B Tex.Jur. 792. In such cases the rights of the creditor became fixed on the occurrence of the loss. Superior Lloyds of America v. Boesch Loan Co., Tex.Civ.App., 153 S.W.2d 973, error refused; Minniefield v. Consolidated Lloyds, Tex.Civ.App., 316 S.W.2d 428; 46 C.J.S. Insurance § 1183, p. 93.
Appellant makes the further contention that the Insurance Company had no authority to settle with Motor Finance Company, the mortgagee, under the power of attorney, for the reason that in making the claim the Finance Company did not purport to act as her attorney in fact, but made the claim in its own name. This contention is also overruled. The mortgagee, under the terms of the mortgage, had the authority to make the claim in its own name.
Undoubtedly, the Insurance Company had the option under the terms of the policy, either to repair the damage to the automobile or pay the damages in cash. In either event the Insurance Company's obligation was to the mortgagee, up to the amount of the debt. Appellant makes no contention that the Insurance Company failed to fully and completely repair the damaged automobile. Therefore, when the Insurance Company exercised its option to make repairs and did so, as shown by the undisputed evidence, it discharged its obligation under the policy issued to appellant and her creditor. Appellant consequently showed no basis for liability on the part of appellee Insurance Company.
The remainder of appellant's points are without merit and are overruled. The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2430434/ | 339 S.W.2d 718 (1960)
Grady Lee DERR, Appellant,
v.
ARGONAUT UNDERWRITERS INSURANCE COMPANY, Appellee.
No. 10796.
Court of Civil Appeals of Texas, Austin.
October 19, 1960.
Rehearing Denied November 2, 1960.
*719 Carter, Gallagher, Jones & Magee, Morton A. Rudberg, Dallas, for appellant.
L. W. Anderson, Dallas, for appellee.
ARCHER, Chief Justice.
This is an appeal from an order of the Trial Court granting an instructed verdict in a suit filed by appellant against appellee to recover benefits under the Texas Workmen's Compensation Insurance Act, V.A. T.S. Insurance Code, art. 5.55 et seq.
The trial was had with the aid of a jury and after plaintiff had closed his case and rested and prior to defendant's submission of any testimony, defendant filed a motion for an instructed verdict which was granted by the court.
The motion for instructed verdict, in substance, alleged that plaintiff had not proved that he had good cause for not filing his claim in time, and that plaintiff had filed a third party action and thereby abandoned his rights to Workmen's Compensation by filing a common law action against a third party.
The appeal is based on two points assigned as error and read as follows:
"1. The Trial Court erred in instructing a verdict in favor of the Defendant for the reason that the Plaintiff had produced some evidence of good cause for the late filing of his claim for compensation.
"2. The Trial Court erred in instructing a verdict in favor of the Defendant for the reason that the Plaintiff had not made an election to abandon his rights to workmen's compensation benefits."
Plaintiff alleged that on June 27, 1956 he was employed as a truck driver for the Refrigerated Transport Company driving a trailer type truck and that his employer had in force a policy of Workmen's Compensation Insurance with the defendant, and that during the early morning of June 27, 1956, plaintiff was involved in a highway accident while in the course of his employment and was seriously injured, resulting in hospitalization for a long period and received medical treatment, the total hospital and medical bills aggregated $4,370.08, all of which were paid by defendant. That on March 7, 1958 the defendant notified the hospital that it would not be liable for future bills.
Plaintiff's employer paid him wages during the time he was unable to work.
Plaintiff employed attorneys in December, 1957 to represent him in his common law claim for damages against Earnest Lloyd, a third party. Conversations were had with reference to a nonwaiver of plaintiff's compensation rights. No waiver was ever secured.
The suit against Lloyd, a third party, was filed on February 5, 1958. The attorneys sent a copy of the petition to Tom Flynn, an employee of the Stoddard Smith Agency, the defendant's general agent in Texas. Stoddard Smith informed K. L. Breeden, who testified that he was in charge of handling Workmen's Compensation matters at *720 Refrigerated Transport Company, that defendant would not consent to plaintiff pursuing the third party common law action, and took the position that plaintiff had abandoned his compensation rights; following the receipt of such information plaintiff filed his claim for Workmen's Compensation on March 15, 1958 and nonsuited in his pending third party action.
Appellee admits that plaintiff was injured and the payment of $4,370.08 for medical and hospital expenses up until January 31, 1958, and believing that plaintiff had a good cause of action against the third party, and also not desiring to raise their rates, plaintiff's employer instructed the defendant not to make any payments for compensation benefits.
The fact that appellant's employer paid the employee wages does not, as a matter of law, constitute good cause for late filing of his claim.
Texas Employers' Insurance Association v. Doss, Tex.Civ.App., 301 S.W.2d 473, er. ref. and cases cited therein.
The primary point for consideration by this Court is whether under the facts before the Trial Court there was any evidence of good cause for plaintiff's failure to file his claim for Workmen's Compensation within six months after the occurrence of his injuries.
Article 8307, Sec. 4a, vernon's Ann.Civ. St., provides that a claim for compensation should be made within six months after the occurrence of the injury, but it is provided in the Article that "for good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board" and it must be also shown that the event which is asserted to constitute good cause for the late filing of a claim continue up to the time the claim is in fact filed.
Consolidated Casualty Ins. Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299.
We then will determine if the payment of medical expenses arising as a result of the injuries through January 31, 1958 totaling $4,370.08 and subsequent refusal to make further payments, and that plaintiff knew that defendant was paying the medical expenses, constitute some evidence on which a person of ordinary prudence under the same or similar circumstances would have exercised, and had used the degree of diligence required in prosecuting his claim with ordinary diligence. If there is some evidence of good cause up to the time of filing the claim, the fact issue should be submitted to a jury to find if the plaintiff was justified in his belief that it was not necessary for him to file his claim earlier than he did.
The Compensation Act provides for care and medical treatment of injured persons, and is not limited to weekly payment for lost time or disability and for payment of such medical treatment and hospital services. Defendant would not be liable for medical payments unless liable for compensation payments.
The defendant, appellee herein, says that the question of medical payments alone as constituting good cause is rather a new and novel proposition and that appellee had not been able to find any cases directly in point, but that in this instant case defendant was not only discharging its obligation under the policy by payment of additional medical payments, but was also discharging its liability under an endorsement on the policy providing for a greater amount of medical payment and an additional premium of $15.00 collected. The endorsement is as follows:
"It is agreed that:
"I. In addition to any medical benefits provided in the Texas Workmen's Compensation Law, the company will also pay the reasonable cost of any additional medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines which in the opinion of the company *721 are reasonably necessary for the treatment of bodily injury sustained by any person who is entitled, on account of such injury, to the compensation and other benefits required of the insured by such law and afforded by the policy under coverage A or who is entitled to such benefits under other terms of the policy."
Defendant takes the further position that if it be assumed that payment of medical expenses does constitute good cause, that such good cause must exist up to the very date the claim is filed with the Board; but that the evidence showed that the last medical services furnished to plaintiff and paid by defendant was on January 31, 1958, and such could not constitute good cause up until the date the claim was filed on March 15, 1958.
In the common law action filed by Derr et al., plaintiffs, against Earnest Lloyd in the District Court of Bell County on February 5, 1958, the Argonaut Underwriters Insurance Company filed its plea of intervention on March 10, 1958 seeking to recover the sum of $4,370.08, and alleging in part:
"II. At the time of injury of Plaintiff hereinbefore mentioned, Refrigerated Transport, Inc., of Texas, was a holder of a duly executed, issued and delivered policy of Workmen's Compensation Insurance issued and delivered to it by Intervenor Argonaut Underwriters Insurance Company.
"III. By reason of the injury sustained by Grady Lee Derr in the course of his employment with Refrigerated Transport, Inc., of Texas, during the period covered by the policy of Workmen's Compensation insurance issued to the Refrigerated Transport, Inc., of Texas, by Intervenor, Argonaut Underwriters Insurance Company, as hereinbefore alleged, Intervenor Argonaut Underwriters Insurance Company became liable to pay and did pay Workmen's Compensation benefits by was of hospital and medical expenses in the total amount of Four Thousand Three Hundred Seventy Dollars and Eight Cents ($4,370.08)."
Article 8306, V.A.C.S., Sec. 6, 7, 7a and 7b, set out in detail medical benefits accruing to an injured employee covered by the Workmen's Compensation Act.
We believe that the payment of an injured employee's medical bills in large amounts and over an extended period of time, as was done in this case, raises the issue of good cause.
As has been stated, good cause for failure to file a claim with the Board is ordinarily a question of fact.
Texas Employer's Ins. Ass'n v. Crain, Tex.Civ.App., 259 S.W.2d 905, er. ref., N.R.E.; Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370.
The short period of time elapsing between the time plaintiff was notified that defendant would not be liable for further medical payments would not in itself defeat plaintiff's claim but would be a matter for the jury's consideration.
As has been noted, the defendant notified the hospital on March 7, 1958 that it would not be liable for medical payments, such information was received by plaintiff on March 11, 1958 and the claim was made on March 15, 1958.
Appellant takes the position that the Court erred in instructing a verdict for the reason that plaintiff had made an election to abandon his rights to compensation benefits.
On February 5, 1958 plaintiff filed a common law action for damages in Bell County against Earnest Lloyd, a third party. Lloyd answered and filed his plea of privilege to have the cause transferred to Tarrant County and the defendant intervened to recover compensation benefits it had paid. Lloyd by agreement withdrew *722 his plea of privilege as to Derr and Derr nonsuited on March 18, 1958, and the plea of intervention was transferred to Tarrant County.
Thereafter on June 10, 1958, Derr again filed suit against Lloyd and Argonaut filed a plea of intervention. On February 13, 1959 Derr nonsuited in the second common law action against Lloyd.
On May 6, 1959 Derr sued the Argonaut Company, which company filed a plea in abatement stating that by the filing of the two previous suits against Lloyd that Derr had made a binding election to pursue his common law remedy and was barred from prosecuting his claim for Workmen's Compensation benefits. Derr denied under oath that he had pending any third party actions. The Trial Court overruled the plea, but later reversed his ruling.
Section 6a of Article 8307 provides that an injured person may, at his option, proceed against some person liable for such injury, or against the Association but not against both and that an election to proceed against such person other than the subscriber, then he shall not be entitled to compensation.
The question is: Did the plaintiff Derr "elect to proceed at law?" We do not believe that plaintiff has elected to proceed at law, within the judicial meaning of that phrase.
At the time the plea in abatement was sustained the plaintiff did not have pending a third party suit, and the filing and nonsuits in the cases did not amount to an election of remedies. The plaintiff did not proceed to judgment based on a trial, and there is no showing that defendant, appellee herein, has sustained any character of damage or injury by reason of the prior proceedings, or that Derr received some benefit under the same.
Stowell v. Texas Employers' Insurance Company, Tex.Civ.App., 259 S.W. 311, no writ history, is cited by appellant as is Employers' Indemnity Corporation v. Felter, Tex.Com.App.1925, 277 S.W. 376, 377.
Since appellee intervened in the third party suits it was not damaged in being unable to subrogate itself to Derr's cause of action.
Appellee cites Fort Worth Lloyds v. Essley, Tex.Civ.App., 235 S.W.2d 700, er. ref. In this case the plaintiff had pending a third party action at the same time that he prosecuted his claim for Workmen's Compensation through the Board, and during his appeal to the District Court. In the instant case Derr had nonsuited in his third party actions prior to filing his claim with the Board.
The appellee contends that its rights to subrogate will be impaired now because more than two years have passed since the date of appellant's injury and will be subject to plea of limitations against the third party, Lloyd, when it attempts to recover its losses.
We believe that limitation against a negligent third party does not begin to run against the carrier until it had assumed the payment of compensation.
Fidelity Union Casualty Company v. Texas Power & Light Company, Tex.Civ.App., 35 S.W.2d 782, er. ref.; Texas Employers' Insurance Association v. Texas & Pacific Railway Company, Tex.Civ.App., 129 S.W.2d 746, writ dism., correct judgment.
The scope of review of an appellate court in which a verdict has been directed is set out in 4 Tex.Jur.2d Sec. 835, as follows:
"In reviewing the propriety of trial court action in granting a summary judgment or in directing a verdict, the reviewing court will examine the entire record for error. It must examine all the testimony in the case that is relevant to the issue, and consider the evidence in the light most favorable to the losing party, disregarding all conflicts and indulging in every intendment reasonably deducible from the *723 evidence in favor of the Appellant. * * *
"In reviewing the propriety of an instructed verdict for Defendant, the controlling question is whether there is any evidence in the record which, when considered by itself, would, if accepted by the jury, have raised an issue of fact that would have supported a judgment in favor of Plaintiff. * *"
The judgment of the Trial Court is reversed and the cause remanded for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2430429/ | 339 S.W.2d 519 (1960)
TEXAS EMPLOYERS' INSURANCE ASS'N, Petitioner,
v.
Henry SHELTON, Respondent.
No. A-7576.
Supreme Court of Texas.
October 5, 1960.
Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioner.
Gordon, Gordon & Buzzard, Pampa, for respondent.
CULVER, Justice.
The respondent, Shelton, claimed that his chest, upper abdomen, esophagus, stomach and diaphragm were injured and that he had sustained a herniation of a portion of the cardiac end of the stomach through the esophageal hiatus. The judgment of the trial court awarding him recovery as for a general injury has been affirmed by the Court of Civil Appeals. 331 S.W.2d 361.
While the case was pending before The Industrial Accident Board the Association tendered an operation by letter to the Board reading as follows:
"Pursuant to Article 8306, Section 12b Revised Civil Statutes of Texas, the insurer, Texas Employers' Insurance Association, tenders relief by *520 operation; and, in event the employee should refuse to submit to an operation, the insurer requests that the Board shall immediately order a medical examination in the manner prescribed by said Section 12b and that the Board shall then proceed in accordance with said Section 12b.
"In thus tendering surgical relief the insurer does not admit, but denies, that the employee has in fact sustained a compensable hernia, and it reserves the right, in event the matter should be appealed to the courts by either party, to contest the compensable character of the hernia."
A few days later the Association notified the Board that if it was not agreed that Section 12b was applicable then the tender of surgery was made in compliance with Section 12e. Upon being notified of this tender Shelton's attorney informed the Board that upon the advice of competent physicians the claimant regards surgery as inadvisable.
No examination to determine the matter of advisability was ordered by the Board and some time thereafter the Board, finding that no proof had been offered showing that Shelton's condition was the result of an accidental injury suffered in the course of his employment, denied his claim. Shelton appealed from the Board's final order.
The contention of the Association is that after it had tendered to Shelton an operation before The Industrial Accident Board it should have been permitted to assert that defense and to introduce evidence tending to show the benefits of that operation.
The limiting language and the reservation expressed in the Association's tender of the operation is not clear. It does not expressly assume any obligation though impliedly so as to the payment of surgical and hospital expense. It does not admit general liability in so many words nor does the letter carry that import. The Association argues that in making the tender of surgery under Section 12e it subjected itself (a) to the cost of the operation; (b) to the additional liability of paying compensation for either 26 or 52 weeks in the event there was a successful operation; (c) it may or may not have subjected itself to further liability to pay compensation in event of an unsuccessful operation.
The insurer says that "[it] persistently pursued the matter of operative relief so long as the matter was before the Board and the record makes it quite plain that it was respondent who successfully headed off petitioner's effort before the Board to reduce its potential liability by tendering operative relief." But the Board in all probability would have ordered an examination to determine the advisability had it not concluded that there was no liability on the part of the insurer, and since the insurer had not admitted liability, the Board was not authorized under its finding on the matter of liability to order an examination and operation. Evidently the Board did not consider that insurer had admitted liability otherwise it would not have denied the claim in toto.
Insurer raises the question as to whether this diaphragmatic hiatus hernia is a hernia that comes under the provisions of Section 12b and says that the trial court refused to submit to the jury an opportunity to determine that question. In our disposition of the case it is of little moment, we think, whether the injury described is one to be administered under 12b or 12e. We are of the opinion, however, that this poses a question of law rather than of fact for determination by the jury. The question for decision by the Court would not arise until liability was admitted and the tender of the operation had been acted upon by the Board.
Although it is probably not material here, yet clearly, we think, the injury alleged to have been sustained by this claimant is not such a hernia as is contemplated by Section 12b. Under that section the *521 term is used in its popular sense, and usually refers to the inguinal type. Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137. The inguinal type is one that is readily diagnosed and usually corrected by a comparatively simple operation. That is the reason for this sort of injury being specially treated by the Legislature. On the other hand this hiatus hernia, an opening through the esophagus, is described by medical testimony as a hernia that allows the contents of the abdominal cavity to go through the opening and to get into the chest cage. The condition is one that is usually demonstrated by X'ray examination. One of the medical witnesses testified that this hiatus hernia operation is a "bigger one" than required for an inguinal hernia. He also said:
"The inguinal hernia is right out practically on the skin. The diaphragm you have to go through the abdomen or thoracic cavity and pull the stomach out of the way. It is deeper situated anatomically. From the standpoint of the surgeon it is a more difficult procedure."
While this case differs factually in some respects, yet it is controlled by our opinion in Truck Insurance Exchange v. Seelbach, 339 S.W.2d 521. The tender of an operation without the admission of liability renders testimony relating to the beneficial effects of an operation inadmissible on the trial of the case on appeal.
Petitioner argues that in tendering the operation it had done all that the statute requires.
In Traders & General Ins. Co. v. Wilkinson, Tex.Civ.App., 261 S.W.2d 863, wr. ref. n. r. e., and Texas Employers' Ins. Ass'n v. Chancellor, Tex.Civ.App., 292 S.W.2d 360, wr. ref. n. r. e., an operation was tendered, the employee refused and the Board ordered the operation. The Court of Civil Appeals held in these cases that although the Board failed to follow strictly the procedural steps prescribed by the statute as a prerequisite to the entry of an order directing the employee to submit himself to the operation, nevertheless the insurance carrier was not denied the right to try the issue as to whether the operation was advisable or not on the de novo trial in the district court. We think these cases do not support petitioner's contention here.
The judgments below are affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431130/ | 276 S.W.2d 284 (1955)
Ex parte William ESTEP.
No. 27269.
Court of Criminal Appeals of Texas.
January 5, 1955.
Rehearing Denied February 23, 1955.
Maury Hughes, Howard Dailey, Dallas, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
DAVIDSON, Judge.
This is an extradition case.
Appellant stands convicted of a felony in the State of Illinois, and is a fugitive therefrom.
Upon the requisition of the Governor of the State of Illinois, the Governor of this State issued his executive warrant under which appellant is held in custody. Appellant prayed for his discharge from custody by writ of habeas corpus.
After hearing, the relief prayed for was denied and notice of appeal was given to this court.
If we understand appellant's contention, it is that, since the judgment of conviction in the State of Illinois and his entry into this State, he has been convicted of a felony in the United States District Court for the Northern District of Texas, from which conviction he has given notice of appeal and which appeal has not been determined.
Upon the facts stated, appellant contends that the extradition proceedings should not be permitted to remove him out of the jurisdiction *285 of the federal courts pending final determination of the appeal.
If the federal authorities desire to prevent the extradition, it is a matter of their own concern.
The Governor's warrant is regular upon its face and, so far as the state courts are concerned, authorizes appellant's extradition.
The judgment is affirmed.
On Appellant's Motion for Rehearing
WOODLEY, Judge.
Our attention is directed to the fact that though appellant was sentenced, on a charge of conspiracy, to a term of not less than 2 nor more than 5 years in the Illinois State Penitentiary, in addition to a fine of $2,000, the record contains a stipulation that the offense was a misdemeanor and not a felony under the laws of Illinois.
The fact that the offense is a misdemeanor is not material, however, for Section 2 of Art. 1008a, V.A.C.C.P., Uniform Criminal Extradition Act, makes it the duty of the Governor of this State to have arrested and delivered up to the executive authority of another state any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.
The record before us shows that the conviction in the Illinois Court has been affirmed on appeal People v. Estep, 346 Ill. App. 132, and writ of error dismissed by the Supreme Court of that state. 413 Ill. 437, 10 N.E.2d 762. Also it appears that certiorari has been denied by the Supreme Court of the United States. 345 U.S. 970, 73 S. Ct. 1112, 97 L. Ed. 1387.
In the face of these stipulations, appellant would have this Court deny extradition upon a finding that the conviction was invalid.
Without regard to these stipulations, we hold that this Court is not a proper forum for an attack upon the validity of a charge or conviction in the demanding state which the requisition for extradition by the governor of that state certifies to be a charge or conviction of a crime under the laws of such state. See Ex parte Peairs, Tex.Cr.App., ___ S.W.2d ___.
Appellant's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431138/ | 276 S.W.2d 813 (1955)
Cebie Woodrow HUGHES, Appellant,
v.
The STATE of Texas, Appellee.
No. 27430.
Court of Criminal Appeals of Texas.
February 16, 1955.
Rehearing Denied March 30, 1955.
Ben F. Mooring, Paris, for appellant.
Leon Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Appellant was convicted of unlawfully driving a motor vehicle upon a public highway while intoxicated, and his punishment was assessed at three days in jail and a fine of fifty dollars.
The statement of facts appearing in the record is not shown to have been filed with the clerk of the trial court as required *814 by Article 759a, section 4, Vernon's Ann.C.C.P., and therefore cannot be considered as a part of the record on appeal. Williams v. State, Tex.Cr.App., 264 S.W.2d 112.
In the absence of a statement of facts, this court cannot pass upon the appellant's contention that the evidence is insufficient to support the conviction, Shaddix v. State, 90 Tex. Crim. 431, 235 S.W. 602; Lewis v. State, Tex.Cr.App., 243 S.W.2d 706; and likewise, cannot appraise the exceptions to the court's charge, the refusal of a requested charge or the bills of exception complaining of the introduction in evidence of certain testimony. Smith v. State, 144 Tex. Crim. 172, 161 S.W.2d 795; Whistler v. State, Tex.Cr.App., 244 S.W.2d 818, and Conde v. State, Tex.Cr.App., 252 S.W.2d 195.
The complaint and information, as well as all other matters of procedure, appear regular; therefore, nothing is presented for review.
The judgment of the trial court is affirmed.
Opinion approved by the court.
On Appellant's Motion for Rehearing
WOODLEY, Judge.
It is now shown that the statement of facts was timely filed in the trial court and it will be considered.
The sufficiency of the evidence to sustain the conviction is challenged, the contention being that there is no proof that appellant drove an automobile on the occasion in question.
The State offered two witnesses.
J. B. Thomas, of the Paris Fire Department, testified that about a mile and a half north of Powderly, in Lamar County, Texas, about 9 o'clock P.M., as he was traveling south toward Paris, he got behind an automobile and followed it for about a mile before he succeeded in passing.
He testified that this car had gone off the road on the left-hand side a couple of times, and finally pulled off the right side of the road; that he took the number of the car and, after it pulled off the road, passed it and proceeded toward Paris; that he saw only one person, the driver, in the car but could not identify him and could not testify that no one else was in the car.
Thomas further testified that north of Paris he saw Highway Patrolman Murray Chapman, and gave him the license number of the car he had tried to go around.
Patrolman Chapman testified that he had occasion to see Thomas at the approximate location north of Paris described by both witnesses, and after talking with him, drove at a speed of about 50 miles per hour directly to the place some 11 miles north where he found appellant lying in the front seat of an automobile which was parked in a rural area, partially on the road and partially on the shoulder, headed south. The license number on the car was checked with the license number that Thomas had given him. No one else was found in or around the car.
Patrolman Chapman further testified that in his opinion appellant was intoxicated, and the facts relating to that subject were shown and are not questioned.
The jury was charged on the law of circumstantial evidence. The issue before us is whether the facts and circumstances stated are sufficient to support the finding that appellant drove the automobile in which he was found, and to exclude every other reasonable hypothesis.
The testimony of Thomas relating to the car he saw proceeding along the highway, the number of which he furnished the officer, together with the testimony of the officer, is deemed sufficient to show that appellant was alone in the car and was the driver thereof.
Thomas testified without objection that he took the license number of the car he had tried to pass, and gave it to Officer Chapman. Chapman's testimony to the same *815 effect could not, therefore, call for reversal.
The court did not err in admitting the testimony of the officer that the car in which he found appellant bore the same license number as that furnished him by Mr. Thomas.
The evidence is deemed sufficient to sustain the conviction and no reversible error is found.
Appellant's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1728142/ | 372 So. 2d 1173 (1979)
Nancy RAFFA, Appellant,
v.
The DANIA BANK et al., Appellees.
No. 78-957.
District Court of Appeal of Florida, Fourth District.
July 18, 1979.
Rehearing Denied August 1, 1979.
Harry G. Carratt of Morgan, Carratt & O'Connor, P.A., Fort Lauderdale, for appellant.
Clark J. Cochran, Jr., of Hainline & Billing, P.A., Fort Lauderdale, for appellee.
BERANEK, Judge.
Plaintiff/appellant sued appellee, a bank, for the wrongful conversion of plaintiff's car. This is the second appearance of this controversy before this court. See Raffa v. Dania Bank, 321 So. 2d 83 (Fla. 4th DCA 1975).
The case was tried on conflicting evidence before a jury on the claim of wrongful conversion and compensatory and punitive damages. At the conclusion of the trial the jury returned the following verdict:
*1174 "VERDICT
"WE, THE JURY, find for the Plaintiff, NANCY RAFFA, and assess her damages against the Defendant, THE DANIA BANK:
Compensatory $NONE
Punitive $25000.00
"SO SAY WE ALL.
"DATED this 7th day of March, 1978.
(Signature).
FOREMAN"
The defendant filed a motion for judgment in accordance with its prior motion for directed verdict and a separate motion for new trial based on an alleged impropriety in the verdict. The court initially entered final judgment in plaintiff's favor for $25,000 punitive damages. Subsequently, the court reversed itself and granted the motion for judgment in favor of defendant in accordance with defendant's prior motion for directed verdict. Final judgment was entered in favor of defendant against the plaintiff. Defendant's motion for a new trial was never ruled upon in view of the grant of the motion for directed verdict.
The law is well settled that punitive damages require an underlying award of compensatory damages. McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So. 2d 221 (1943); Sonson v. Nelson, 357 So. 2d 747 (Fla. 3d DCA 1978). A verdict which finds no compensatory damages whatsoever and punitive damages of $25,000 is within this prohibition. At trial neither plaintiff nor defendant asked to have this improper verdict corrected while the jury was still impaneled and might have done so. Also, no party asked for an instruction to the effect that punitive damages could not be assessed without at least a finding of some compensatory damages nor did any party ask for an instruction to the jury on nominal damages.
On appeal plaintiff/appellant seeks to have the $25,000 punitive damages judgment reinstated and the defendant seeks affirmance of the directed verdict eventually entered in its favor. It should be noted that the defendant's directed verdict was not the result of the impropriety of the verdict. It was instead based on the trial court's finding that plaintiff's proofs had been lacking.
We hold the directed verdict in favor of the defendant to be erroneous. The jury found in favor of plaintiff on the issue of liability and there was evidence which, if believed, supported this verdict of liability. We thus reject defendant's contention and find the evidence was sufficient to support the jury's verdict on the issue of liability in favor of plaintiff. Laird v. Potter, 367 So. 2d 642 (Fla. 3d DCA 1979).
We also cannot accept plaintiff/appellant's position that the correct disposition of this matter is to reinstate the $25,000 punitive damages. Such a disposition would violate the established law previously stated to the effect that punitive damages may not be assessed without a finding of compensatory damages. We, therefore, cannot condone a judgment based on an improper and inconsistent verdict absent some showing that defendant waived the right to complain about the improper verdict. Since the defendant filed both a motion for judgment in accordance with its motion for directed verdict (improperly granted by the trial court) and a motion for new trial based solely on the impropriety of the verdict there has been no waiver. The trial court never ruled upon the motion for new trial because a ruling was unnecessary in view of the action in granting the directed verdict. We do not find the absence of such a ruling to constitute a waiver of the motion for new trial on defendant's part.
Based on the above, we hold the trial court erred in granting defendant's motion for judgment in accordance with its motion for directed verdict and entering judgment thereon. This judgment is vacated and the matter remanded to the trial court with directions to grant the motion for new trial filed by the defendant.
REVERSED AND REMANDED WITH DIRECTIONS.
ANSTEAD and DAUKSCH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431414/ | 920 S.W.2d 51 (1996)
PLAZA CONDOMINIUM ASSOCIATION, INC. and Ziegler & Schneider, P.S.C., Successor to T.J. Brandt (Deceased), Appellants,
v.
WELLINGTON CORPORATION, Appellee.
No. 95-SC-211-DG.
Supreme Court of Kentucky.
April 25, 1996.
Joseph L. Baker, Sharon S. Elliston, Ziegler & Schneider, P.S.C., Covington, for Appellants.
James G. Woltermann, John S. "Brook" Brooking, Adams, Brooking, Stepner, Woltermann & Dusing, Florence, for Appellee.
*52 LAMBERT, Justice.
We are called upon to construe portions of the Horizontal Property Law Act, KRS 381.805, et seq., and in particular the provision which prescribes the contributions required of co-owners toward common expenses, KRS 381.870. Appellants contend that it was unlawful for appellee, the developer, to grant itself a 75% reduction from its pro rata share of common expenses, thus increasing the cost to other owners. Appellee concedes the reduction but insists that the statute permits a departure from strict pro rata division and further contends that in the event its reduced expense payment is determined to have been unlawful, the claim appellants assert is barred by laches.
In 1986, appellee, the Wellington Corporation, recorded a master deed creating a 51-unit condominium project known as Riverside Plaza in Kenton County, Kentucky. At or about the same time, appellee incorporated an entity known as Plaza Condominium Association, Inc., which appears in this litigation as appellants. The condominium association was the council of co-owners as provided for in the statutes. KRS 381.810(4) and KRS 381.870. The initial board of directors consisted of the developer and two of its lawyers. The by-laws adopted by the initial board of directors granted enhanced voting rights to the developer so that appellee was given five votes for each unsold unit during the first three years while other owners had only one vote per condominium unit. The effect of this enhanced voting right during the first three years was to give the developer virtual autonomy, although it is contended that such control was neither challenged nor exercised.
The master deed and the by-laws of the association provided that the developer, appellee herein, would be required to pay only 25% of pro rata expenses. This circumstance prevailed from the inception of the project, July 1986, until December of 1991 when appellants amended the by-laws to require appellee to pay 100% of the monthly assessment. Based on the disparity between the payments made by appellee and by all other condominium owners, appellant sought recovery of the approximate sum of $67,000 plus interest from the commencement of litigation and attorney's fees.
Initially, we must review KRS 381.870. This statute provides that
[a]ll co-owners are bound to contribute in accordance with their percentage of common interest toward the expenses of administration and of maintenance, repairs and replacement reserves of the general common elements, and, in the proper case, of the limited common elements of the regime, and toward any other expenses lawfully assessed under the master deed and/or by the council of co-owners.
Id. The statute also provides "for adjustments by the council of co-owners for contributions *53 proportioned upon a consideration of a combination of floor area, the number of occupants, demand on public utilities and accessibility to limited common elements." Id.
The courts of this Commonwealth have not heretofore spoken to the proper construction of this statute. Cf. Monarch v. Lodge Condominium Council of Co-Owners, Inc., Ky.App., 684 S.W.2d 317, 319-20 (1985) (holding that a co-owner could seek specific performance against the council of co-owners to complete repairs to a condominium). In our view, however, the statute is not unduly complex. The overriding principle is that all co-owners, by whatever means their ownership arose, are to contribute according to the percentage of their interest. A departure from such percentage contribution is permitted upon consideration of the statutory factors, but an owner may not escape his or her share of the expenses by waiver. One seeking an adjustment based upon the statutory factors is obligated to demonstrate the reasonableness of the reduction sought. The statute begins with the proposition that all owners shall contribute pro rata and any owner seeking to depart therefrom bears the burden of demonstrating entitlement to a reduction.
When the foregoing is applied in the case at bar, the 75% reduction granted the developer cannot be harmonized with the statute. In view of the statutory scheme, it is virtually inconceivable that such a substantial reduction for one owner could be justified. The Court of Appeals recognized this as follows:
Needless to say, the provision in the master deed itself for favorable treatment of the developer's unoccupied units did not comply with this statute. It also does not appear that the adjustment made by the council, when made, was actually proportioned upon a consideration of the statutory factors, particularly in view of the fact that only vacant units belonging to the developer were given favorable assessment treatment.
Plaza Condominium Assoc. v. Wellington Corp., Ky.App., 93-CA-001049-MR, 93-CA-001216-MR, slip op. at 3-4 (Feb. 17, 1995).
Most of the expenses for which co-owners are bound to contribute are fixed and occupancy has little to do with generating such costs. Thus, pro rata distribution is the rule. For a limited class of expenses, however, occupancy is relevant to costs and the statute permits a limited adjustment to reflect this circumstance. Upon remand, the evidence shall be considered in light of the statutory factors and an appropriate reduction, if any, granted appellee.
In the Court of Appeals, appellants' contentions with respect to statutory construction were essentially accepted. However, that court determined that appellants had been guilty of laches by virtue of unreasonable delay to the disadvantage of appellee. The court believed that failure to contest the developer's favorable treatment from July of 1986 until commencement of this litigation was enough to bar the claim.
The parties intensely debate whether there was an unreasonable delay and, if so, whether it was justified by the actions of appellee. The trial court and Court of Appeals found no reasonable justification for the delay and we cannot say they were wrong on that point. However, necessary to a successful plea of laches is the additional element of prejudice as a result of the delay. The trial court found such prejudice by concluding that if the developer had been given more timely notice of the claim, it "simply would have recouped that cost by increasing the sale price for each of the individual condominium units." The Court of Appeals did not disagree.
On this point we cannot agree with the courts below. There is no reason to believe that appellee sold any of its condominium units for less than the market would bear. In general, market forces determine the price of real property and the owner of property has no ability to recoup additional costs simply by "adding it on to the sale price." We are confident that any cost which could have been added on was added on. The trial court's finding that the developer "simply would have upwardly adjusted the purchase price of the condominium units to offset that additional expense" is clearly erroneous. To *54 the extent the Court of Appeals accepted that view, it, too, was in error.
Appellants' claim is for money damages and no statute of limitations has yet run. As such, the delay in the present case is not of such consequence as to harm appellees to the extent that this claim should not be heard. It is not necessary to engage in an extensive review of the doctrine of laches. It is sufficient to say that this doctrine serves to bar claims in circumstances where a party engages in unreasonable delay to the prejudice of others rendering it inequitable to allow that party to reverse a previous course of action. See Kendall v. Mussman, Ky., 247 S.W.2d 502, 503-04 (1952). Prior to the expiration of the limitation period, however, one claiming a bar based on delay must also show prejudice. This proposition was well articulated in Denison v. McCann, 303 Ky. 195, 197 S.W.2d 248, 249 (1946), quoting City of Paducah v. Gillispie, 273 Ky. 101, 115 S.W.2d 574, 575 (1938), as follows:
`Laches' in its general definition is laxness; an unreasonable delay in asserting a right. In its legal significance, it is not merely delay, but delay that results in injury or works a disadvantage to the adverse party. Thus there are two elements to be considered. As to what is unreasonable delay is a question always dependent on the facts in the particular case. Where the resulting harm or disadvantage is great, a relative brief period of delay may constitute a defense while a similar period under other circumstances may not. What is the equity of the case is the controlling question. Courts of chancery will not become active except on the call of conscience, good faith, and reasonable diligence. The doctrine of laches is, in part, based on the injustice that might or will result from the enforcement of a neglected right.
(citations omitted). Here we have determined that while appellants may have been guilty of delay in asserting their rights, appellee suffered no significant prejudice, certainly none of such consequence as to equitably bar appellants' claim.
Upon our determination that reversal of the courts below is required, we must also determine what remedy should follow. The case should be remanded for additional evidence, if the parties so desire. Thereafter, the trial court should render new findings of fact and conclusions of law. In making such findings of fact, the court shall consider the principles as set forth herein with regard to the construction of KRS 381.870. If appellee is able to show its entitlement to relief based on the statutory factors, the court may grant a reasonable adjustment. Otherwise, as we have said herein, pro rata contribution is the rule which should be applied.
At the commencement of this litigation, appellants obtained an assessment lien against four units which were still owned by appellee. An agreement was reached between the parties which granted a mortgage upon one unit and the lien was released upon the other three. The trial court, holding that appellants were entitled to no payments from appellee under the statute, or because of the doctrine of laches, ordered release of the mortgage. Appellants now insist that this was error.
By its terms, the date of maturity of the mortgage was the earlier of September 15, 1996, or "the date of the final and unappealable judgment" in this action. It is obvious that neither occasion has yet arrived and our determination that this cause must be reversed and remanded requires that we likewise reinstate the mortgage upon the condominium unit. The agreement which resulted in this mortgage lien was fully negotiated by the parties and they agreed that it should be construed in favor of appellants. This Court's decision in O.P. Link Handle Co. v. Wright, Ky., 429 S.W.2d 842 (1968), holds that "it is not the function of the judiciary to change the obligations of a contract which the parties have seen fit to make." Id. at 847 (quoting Williston on Contracts § 610A (3d ed.)).
As a final part of their claim, appellants' seek attorney's fees. Under KRS 381.990(5), such fees are available if a party violates the by-laws of the council of co-owners as set forth in KRS 381.860. The statutes relating to attorney's fees simply do not apply in circumstances where a co-owner claims a right pursuant to the by-laws, even *55 though such claim may be determined to be invalid.
As set forth above, this cause is remanded to the Kenton Circuit Court for further proceedings consistent herewith.
STEPHENS, C.J., and GRAVES, KING, LAMBERT, and STUMBO, JJ., concur.
WINTERSHEIMER, J., dissents by separate opinion.
BAKER, J., not sitting.
WINTERSHEIMER, Justice, dissenting.
I must respectfully dissent from the majority opinion because the Court of Appeals properly affirmed the decision of the circuit court based solely on the doctrine of laches in the delay of the Association in bringing the action so as to significantly prejudice the opposing party. Laches is a failure to do something which should have been done or to enforce a right at a proper time.
The Association has abandoned its original argument to the Court of Appeals in regard to laches and now seems to claim that the doctrine does not apply at all because the action includes a legal claim for a money judgment as well as equitable foreclosure under the terms of KRS 381.883.
As the Court of Appeals stated, the legality of the discount provision is highly questionable, and it may not comply with the statutes governing condominium-property regimes. Certainly some sympathy can be engendered for the Association, and the underlying issue, that is the legality of Wellington's scheme, may merit criticism. However, this kind of horizontal property case, as a condominium dispute between owners, is governed by contract law. It must be assumed that all parties to the original agreement were competent and consenting. The claim of manifest injustice is unconvincing. In addition, this case has problems with preservation as well as delay.
The responsibility of this Court is to review the decisions of the other courts, not to discover new facts. Consequently, on balance, I cannot say that the Court of Appeals committed reversible error in deciding the case on the basis of laches or that the circuit court was clearly erroneous in its evaluation of the facts and application of the law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431416/ | 920 S.W.2d 452 (1996)
HYMAN FARM SERVICE, INC. and Harold Hyman, Appellants,
v.
EARTH OIL & GAS CO., INC., Appellee.
No. 07-95-0003-CV.
Court of Appeals of Texas, Amarillo.
March 28, 1996.
*453 McCleskey, Harriger, Brazill & Graf, L.L.P., Jim Hund, Sims, Kidd, Hubbert & Wilson, L.L.P., John C. Sims, Lubbock, for appellants.
Faddoul & Glasheen, P.C., Kevin Glasheen, Lubbock, Carrissa A. Cleavinger, Muleshoe, for appellee.
Before REYNOLDS, C.J., and DODSON and QUINN, JJ.
DODSON, Justice.
Hyman Farm Service, Inc. (Hyman Farm Service) and Harold Hyman (Hyman) appeal from a judgment awarding Earth Oil & Gas, Inc. (Earth Oil & Gas) $86,655.82, on its claims for damages stemming from Hyman Farm Service's failure to pay federal excise taxes on fuel purchased from Earth Oil & Gas. By ten points of error, appellants assert (1) the trial court erred in awarding judgment on the fraud theory because the cause of action, if any, sounds in contract, not in tort; (2) and (3) there is no evidence or alternatively factually insufficient evidence of fraud; (4) the trial court erred in awarding judgment against Hyman individually because the evidence conclusively establishes the transactions were between Hyman Farm Service and Earth Oil & Gas; (5) the trial court erred in denying appellants' motion to transfer venue; (6) and (7) there is no evidence or alternatively factually insufficient evidence that Hyman Farm Service agreed to pay the federal taxes; (8) the trial court erred in denying the motions for mistrial and new trial because the same ten jurors did not agree upon answers in the charge which formed the basis of the court's judgment; (9) the trial court erred in awarding punitive damages because the cause of action, if any, sounds only in contract; and (10) the trial court erred in awarding punitive damages against Hyman Farm Service because there is no finding that Hyman Farm Service committed a tort.
Because the trial court did not err in its venue determination, the record discloses some evidence of fraud, and the same ten *454 jurors did not agree upon answers to the questions in the court's charge which formed the basis of the court's judgment, we reverse and remand to Lamb County. As we also conclude there is no evidence of contract and no finding to support the imposition of punitive damages against Hyman Farm Service, we sever those claims and render corresponding take nothing judgments.
The record shows that Hyman Farm Service is a fertilizer business in Dimmitt, Texas, owned in part by Harold Hyman. The appellee, Earth Oil & Gas, located in Earth, Texas, and owned in part by Marvin Been, also sells fertilizer, as well as fuel and other agricultural supplies. In 1985-86, Earth Oil & Gas began buying fertilizer for resale from Hyman Farm Service, and during the following year, Hyman Farm Service began buying fuel from Earth Oil & Gas.
The parties' dispute centers around responsibility for, and nonpayment of, federal excise taxes on fuel for certain years in which they transacted business. Until March 31, 1988, those taxes were controlled by 26 U.S.C.A. § 4041, which contained an agricultural exemption for fuel used by certain farmers. In order to receive the benefit of the exemption, the producer (Earth Oil & Gas) was required to obtain an affidavit from the end user (Hyman Farm Service). Harold Hyman held a permit issued by the State which allowed Hyman Farm Service to buy diesel fuel free of state taxes, and Earth Oil & Gas obtained a copy of the state permit in compliance with the state exemption requirement. However, Earth Oil & Gas did not obtain the required federal exemption affidavit, but for disputed reasons, they did not bill for, and Hyman Farm Service did not pay, the federal taxes.
On March 31, 1988, Congress eliminated the federal exemption, and Earth Oil & Gas began billing, and receiving payment from Hyman Farm Service for the federal excise taxes. This billing pattern continued until January 1, 1989, when Congress reinstated the exemption, and Earth Oil & Gas ceased billing Hyman Farm Service for the taxes.
In 1992, the Internal Revenue Service (IRS) informed Earth Oil & Gas that it had to collect and pay unpaid federal excise taxes for fuel sold to Hyman Farm Service from January 1990, to December 1991. Marvin Been, and his brother Jerry, requested that Hyman Farm Service pay the taxes, but ultimately paid the tax bill after Harold Hyman could not obtain a loan and indicated he would not pay. After paying the IRS, Earth Oil & Gas filed suit against Hyman Farm Service and Harold Hyman in Castro County to recover amounts it had paid. Earth Oil & Gas claimed Hyman Farm Service had agreed to pay the federal excise taxes to the IRS, and asserted causes of action for breach of contract, fraud, and quantum meruit. Earth Oil & Gas subsequently nonsuited the case pending in Castro County and refiled in Lamb County, its place of business.
Hyman Farm Service and Harold Hyman filed a motion to transfer venue to their respective place of business and residence, Castro County. They asserted that no part of the cause of action accrued in Lamb County, Tex.Civ.Prac. & Rem.Code Ann. § 15.001 (Vernon 1986), and additionally that venue was conclusively fixed in Castro County by the first filing. The trial court denied the motion, and the case proceeded to trial. After a bifurcated trial (for exemplary damage claims), Earth Oil & Gas was awarded judgment on the verdict, and Hyman Farm Service and Harold Hyman appeal.
In addressing the points of error necessary for a proper disposition of this appeal, we begin with points one and nine in which appellants contend the trial court erred in awarding judgment and punitive damages based upon the fraud theory, because the cause of action, if any, sounds in contract, not in tort. These points are not properly before us.
Appellants have not preserved these points for review because the issue was not raised in their motion for instructed verdict, and none of the objections to either portion of the charge (liability/actual damage, or exemplary damage) comport with their assertion on appeal that the fraud issue should not have been submitted to the jury because the cause of action, if any, sounds in contract, not in tort. Tex.R.App.P. 52(a); Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992). Consequently, *455 we overrule points one and nine without further discussion.
By point of error two, appellants contend the trial court erred in denying their motion for instructed verdict because there is no evidence that either of them was guilty of fraud in the purchase of fuel from Earth Oil & Gas. We disagree.
An instructed verdict is proper when no issue of fact is presented by the evidence, or where no verdict other than the one requested could properly be sustained. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam). We review the denial of an instructed verdict by a legal sufficiency or "no evidence" standard of review. City of Alamo v. Montes, 904 S.W.2d 727, 732 (Tex.App.Corpus Christi 1995, no writ). In reviewing a legal insufficiency point, we examine the record by considering only the evidence and inferences favorable to the judgment, Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992), and uphold the trial court's decision if there is more than a scintilla of supporting evidence. Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.El Paso 1992, no writ).
Appellants contend the record contains no evidence that Hyman made a false representation or that Earth Oil & Gas relied upon the alleged misrepresentation. They assert the trial court erred in submitting the following fraud question to the jury:
QUESTION 2
Did Harold Hyman commit fraud against Earth Oil & Gas, Inc.?
The jury was instructed that fraud occurs when: a party makes a material misrepresentation; the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion; the misrepresentation is made with the intention that it should be acted on by the other party, and; the other party acts in reliance on the misrepresentation and thereby suffers injury. It was also instructed that misrepresentation means a false statement of fact, or a promise of future performance made with an intent not to perform as promised.
At the outset, it must be noted that the Supreme Court has approved the above elements as constituting a fraud cause of action. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex.1992). Therefore, by application of the preceding substantive case law and standard of review, we conclude the testimony of Marvin Been as to his initial conversations with Hyman regarding Hyman's particular uses of the fuel, and method and payment of taxes, Marvin Been's testimony of his conversation with Hyman after the IRS declared the taxes owed, together with Jerry Been's testimony of his conversation with Hyman about paying the IRS, constitute some evidence of misrepresentation and reliance. The trial court did not err in submitting an issue on whether Harold Hyman committed fraud, and point two is overruled.
By point of error four, appellants contend the trial court erred in rendering judgment against Harold Hyman individually because the evidence conclusively establishes that the dealings which form the basis of the claims of Earth Oil & Gas were transactions with Hyman Farm Service. We disagree.
In addition to Hyman Farm Service, Harold Hyman was sued individually for his misrepresentations. Under longstanding Texas law, corporate agents can be held individually liable for fraudulent or tortious acts committed while working for a corporation. Light v. Wilson, 663 S.W.2d 813, 815 (Tex. 1983); Holberg v. Teal Const. Co., 879 S.W.2d 358, 360 (Tex.App.Houston [14th Dist.] 1994, no writ); Guilbeau v. Anderson, 841 S.W.2d 517, 519 (Tex.App.Houston [14th Dist.] 1992, no writ). Consequently, the trial court did not err in rendering judgment that Harold Hyman was individually liable for fraud. Point four is overruled.
In point of error five, appellants contend the trial court erred in denying their motion to transfer venue to Castro County because (1) no part of the cause of action accrued in Lamb County, and (2) venue was conclusively established in Castro County by the first filing. Again, we disagree.
*456 Appellants' assertion that venue was conclusively established in Castro County is based upon an erroneous application of case law to the facts at hand. While it is true that once a venue determination has been made, that determination is conclusive if the party nonsuits and subsequently refiles the same cause of action against the same parties, Hendrick Medical Center v. Howell, 690 S.W.2d 42, 44 (Tex.App.Dallas 1985, no writ), it is not true that merely filing a suit conclusively establishes venue. Appellants do not contend, and the record does not show, that a venue determination was ever made in the first suit filed in Castro County. Therefore, we conclude venue was not conclusively fixed by the first filing, and address the remaining assertion that no part of the cause of action accrued in Lamb County.
The venue provision relied upon by Earth Oil & Gas, provides that "all lawsuits shall be brought in the county in which all or part of the cause of action accrued or in the county of defendant's residence if the defendant is a natural person." Tex.Civ.Prac. & Rem.Code Ann. § 15.001 (Vernon 1986). If the entire record, including the trial record, discloses any probative evidence that venue was proper in Lamb County, we must uphold the trial court's determination. Tex.Civ.Prac. & Rem. Code Ann. § 15.064(b) (Vernon 1986); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).
Earth Oil & Gas asserted, among other causes of action, that Harold Hyman was guilty of fraud. When the claim is one involving fraud, venue may be sustained in the county where the words are heard by the person defrauded. Harshberger v. Reliable-Aire, Inc., 619 S.W.2d 478, 482 (Tex.Civ. App.Corpus Christi 1981, writ dism'd); see also Miller v. Kendall, 804 S.W.2d 933, 942 (Tex.App.Houston [1st Dist.] 1990, no writ). In the instant case, Marvin Been was at his place of business in Lamb County when he contacted Harold Hyman and had the conversation in which he heard the misrepresentations. Because we discern, as stated in point of error two, that the record discloses some evidence of fraud, and those fraudulent misrepresentations were heard in Lamb County, we conclude venue was proper in Lamb County. Point five is overruled.
By point of error six, appellants contend the trial court erred in denying their motion for instructed verdict because there is no evidence that Earth Oil & Gas and Hyman Farm Service agreed that Hyman Farm Service would pay the IRS for the taxes on fuel purchased from Earth Oil & Gas. As stated in point two, we will review the denial of the motion under a legal sufficiency standard of review, and uphold the judgment if there is more than a scintilla of supporting evidence.
The term "agreement" was undefined in the charge, but all parties have indicated, through their pleadings, objections to the charge, and arguments in the briefs, that the "agreement" issue in the charge inquired into whether a contract was formed. Therefore, we will address point six as being whether legally sufficient evidence exists that the parties formed a contract with respect to the payment of the federal taxes.
Hyman Farm Service and Hyman assert that no agreement was formed because the parties failed to agree on the essential terms, and never reached a mutual understanding. In discussing the tax situation with Hyman Farm Service, Marvin Been had the following exchange with his counsel:
* * * * * *
Q. What did Harold Hyman tell you about his exemption, whether he was exempt from the State or Federal Taxes?
A. He told me that he was exempt from taxes on diesel fuel. He never stated State tax or Federal tax. He said that he was exempt. After about two or three months, I had to ask him how he was handling the Federal tax. I knew that he was supposed to fill out fuel reports on the State tax, and I wondered how he was handling the Federal tax. And he told me they were handling it through the office. I don't know what office, I assumed the accountant's office.
* * * * * *
*457 Q.... did Harold Hyman buy fuel from you in 87 tax-free, and continue to?
A. Yes.
Q. Did you sell it to him based on his representation that he was tax exempt?
A. Yes.
* * * * * *
By this testimony, viewed in a light most favorable to the verdict, we can find the existence of a mutual understanding. Hyman said he would pay the taxes, and Been understood that Hyman would pay the taxes. However, for that understanding to be a valid contract, it must have contained the requisites for contractual formation: an offer, acceptance of that offer, and consideration. Nickerson v. E.I.L. Instruments, Inc., 874 S.W.2d 936, 939 (Tex.App.Houston [1st Dist.] 1994, writ denied). Marvin Been's testimony, although evidence of a discussion as to the payment of the taxes, is no evidence that either party made an offer with respect to handling the taxes, or that any such offer was ever accepted. Point six is sustained.
By point of error eight, appellants claim the trial court erred in denying their motion for mistrial and motion for new trial because the same ten jurors did not agree upon answers to the questions in the charge which form the basis of the court's judgment. They assert, pursuant to Texas Rule of Civil Procedure 292, that even in a bifurcated trial, the same ten members of the jury must agree "as to each and all answers made." Tex.R.Civ.P. 292. We agree.
We have never been squarely presented with this issue, and similar cases are sparse at best. However, this court is of the opinion that in light of Rules 174(b) and 292,[1] the concurrence of the same ten jurors is required in a bifurcated trial.
Rule 174(b) provides in relevant part, that a court may order a separate trial of any separate issue or claim in order to avoid prejudice. Likewise, the process of bifurcation exists to ensure that the jury does not consider the defendant's net worth in making the liability determination. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 29-30 (Tex.1994). The Corpus Christi Court of Appeals relied upon Rule 174(b) in stating, albeit in dicta, that a bifurcated trial encompasses "separate trials" which are full and final trials on the issues, and thus does not require the concurrence of the same ten jurors. Greater Houston Transp. v. Zrubeck, 850 S.W.2d 579, 587 (Tex.App.Corpus Christi 1993, writ denied). We cannot agree.
The Supreme Court, in Moriel, stated that although it remained resolute that piecemeal trials should be avoided, punitive damage cases should be the exception to the rule. Transportation Ins. Co. v. Moriel, 879 S.W.2d at 30, n. 29. In this regard, we recognize that piecemeal is defined as "one piece at a time; in pieces or fragments; or done, made or accomplished piece by piece, or in a fragmentary way." Webster's Ninth New Collegiate Dictionary (1988). Furthermore, the Supreme Court has explained that a severance and a separate trial are entirely different procedures.
A severance divides the lawsuit into two or more separate and independent causes. When this has been done, a judgment which disposes of all parties and issues in one of the severed causes is final and appealable. An order for a separate trial leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same hearing. The order entered at the conclusion of a separate trial is often interlocutory, because no final and appealable judgment can properly be rendered until all of the controlling issues have been tried and decided.
Hall v. City of Austin, 450 S.W.2d 836, 837-38 (Tex.1970).
We conclude, then, that the Supreme Court in Moriel did not sanction a severance procedure which the Corpus Christi Court incorrectly defined as a separate trial. Rather, the Supreme Court intended to allow a true "separate trial"; such being one trial with separate parts, a piecemeal trial. Therefore, it is within this framework that we address appellants' assertion, that where *458 one juror fails to sign the initial verdict, and yet is one of the ten to sign and agree to the verdict on punitive damages, the final verdict is not in compliance with Rule 292.
Rule 292 states, "A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve ..." (emphasis added). This language has also been held to be a mandatory requirement that "the same ten jurors must answer each and all of the issues upon which the court bases its judgment...." McCauley v. Charter Oak Fire Ins. Co., 660 S.W.2d 863, 866 (Tex.App.Tyler 1983, writ ref'd n.r.e.).
We believe the requirement of a concurrence of jurors in any cause encompasses the entirety of a cause of action, whether tried in one trial or tried in separate trials. Because a finding of punitive damages in a bifurcated trial is of no consequence standing alone, and must be predicated upon a cause of action, it likewise is also subject to the stricture of Rule 292. Consequently, the judgment rendered in this case was based upon a defective verdict, and cannot stand. Point eight is sustained.
By point of error ten, appellants assert the trial court erred in awarding punitive damages against Hyman Farm Service because there is no finding by the jury that Hyman Farm Service committed a tort, and absent such a finding, there is no legal basis for the award. We agree.
In order to recover exemplary damages against a corporation for the acts of an agent, the plaintiff must plead, prove, and obtain findings that (1) the corporation authorized the tortious act, (2) it recklessly employed an unfit person who committed the act, (3) it ratified or approved the act, or (4) the employee was employed in a managerial capacity or was a vice principal of the corporation, and was acting within the scope of his employment. Browning-Ferris Industries, Inc. v. Lieck, 845 S.W.2d 926, 945 (Tex. App.Corpus Christi 1992), rev'd on other grounds, 881 S.W.2d 288 (Tex.1994). Missouri Pacific R. Co. v. Lemon, 861 S.W.2d 501, 517 (Tex.App.Houston [14th Dist.] 1993, writ dism'd).
In the liability/actual damage portion of the charge, the fraud issue answered by the jury only asked whether Harold Hyman was guilty of fraud. No mention was made of Hyman Farm Service. Although the exemplary damage portion of the charge asked the jury to assess damages, if any, against both Harold Hyman and Hyman Farm Service, no issue was submitted upon which the jury could find any of the four alternative predicates for corporate liability. Consequently, no finding exists upon which Hyman Farm Service may be held liable for punitive damages. Point ten is sustained.
As our disposition of the above points of error requires that we reverse and remand the case for a new trial, we deem unnecessary a discussion of the remaining factual sufficiency contentions. Tex.R.App.P. 90(a).
Accordingly, we sever the claim for breach of contract as to all parties, and for exemplary damages with respect only to Hyman Farm Service, and render judgment that Earth Oil & Gas take nothing on those claims. We reverse the remainder of the trial court's judgment and remand the cause to Lamb County for a new trial on the issue of fraud, and if applicable, exemplary damages with respect to Harold Hyman individually.
NOTES
[1] All references herein to Rules 174(b) and 292 are to the Texas Rules of Civil Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431419/ | 920 S.W.2d 901 (1996)
STATE ex rel. Mary Lee BRECKENRIDGE, et al., Relators,
v.
Hon. J. Miles SWEENEY, Judge, Circuit Court of Greene County, Respondent.
No. 78522.
Supreme Court of Missouri, En Banc.
April 23, 1996.
Rehearing Denied May 28, 1996.
Joan Tanner, Paul J. Passanante, St. Louis, for Relators.
John L. Oliver, Cape Girardeau, William C. Love, Springfield, for Respondent.
ORIGINAL PROCEEDING IN MANDAMUS
LIMBAUGH, Judge.
In this original action in mandamus, we revisit the issue of pretensive venue discussed in State ex rel. Malone v. Mummert, 889 S.W.2d 822 (Mo. banc 1994), this time in the context of a medical malpractice action. Relators filed an application for writ of mandamus to compel Respondent, Judge J. Miles Sweeney, to vacate his order transferring the underlying case from Greene County to Butler County. Although the Court of Appeals denied the application, this Court issued an *902 alternative writ of mandamus. Jurisdiction is based on article V, section 4, of the Missouri Constitution. The alternative writ of mandamus in now made peremptory.
I.
On March 30, 1989, Sue Breckenridge, then pregnant, began labor at Doctor's Regional Hospital in Butler County. Between 10:05 P.M. and 10:10 P.M., her umbilical cord prolapsed making it imperative that the baby be delivered as soon as possible. In response to this crisis, Dr. E.C. Carlson, the doctor in charge, requested a surgical team be called in to deliver the baby via caesarean section. Using that procedure, the baby, Mary Breckenridge, was delivered at approximately 10:55 that night. She now suffers from cerebral palsy due allegedly to oxygen deprivation resulting from the umbilical cord prolapse. Relators, plaintiffs in the underlying action, contend that the condition was caused by an unnecessary and unreasonable delay in the surgical delivery.
On February 7, 1990, the plaintiffs filed a malpractice action against the hospital in Butler County. The plaintiffs later dismissed the case, but refiled it in Greene County. They named Terry Sumpter, who was nurse anesthetist for the surgical team, Dr. Carlson, and the hospital, as defendants. Because Sumpter was a resident of Greene County, the Breckenridges alleged that venue was proper in Greene County. Following the institution of the Greene County case, Sumpter filed a Motion to Dismiss and/or Transfer Venue, and Carlson filed a separate Motion to Transfer venue.
On July 11, 1995, Respondent held that Sumpter had been pretensively joined and ordered that venue be transferred back to Butler County. Following the denial of a motion to reconsider, Relators brought this petition for writ of mandamus.
II.
A writ of mandamus will lie only where the relator seeks to enforce a clear, unequivocal, preexisting, and specific right. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994). The oftrepeated refrain of this Court is that the purpose of the writ of mandamus is to execute, not adjudicate. Id. Pretensive venue issues have been addressed by this Court through a writ of mandamus. See State ex rel. Malone v. Mummert, 889 S.W.2d 822 (Mo. banc 1994); State ex rel. Shelton v. Mummert, 879 S.W.2d 525 (Mo. banc 1994); and State ex rel. Cross v. Anderson, 878 S.W.2d 37 (Mo. banc 1994).
Where the defendants in a lawsuit are a mix of corporations and individuals, some or all of whom reside in different counties, then the lawsuit "may be brought in any county in this state where a defendant resides." § 508.010, RSMo 1986. It is undisputed that Sumpter lived in Greene County at the time of the petition. Therefore, venue is proper in Greene County, unless Sumpter was pretensively joined as a defendant.
The party claiming that a defendant has been pretensively joined bears both the burden of proof and the burden of persuasion. Malone, 889 S.W.2d at 824. This Court has held that:
Venue is pretensive if (1) the petition on its face fails to state a cause of action against the resident defendant; or (2) the petition does state a cause of action against the resident defendant, but the record, pleadings and facts presented in support of a motion asserting pretensive joinder establish that there is, in fact, no cause of action against the resident defendant and that the information available at the time the petition was filed would not support a reasonable legal opinion that a case could be made against the resident defendant. The standard is an objective one, appropriately denominated as a realistic belief that under the law and the evidence a [valid] claim exists.
State ex rel. Shelton v. Mummert, 879 S.W.2d 525 (Mo. banc 1994) (quoting State ex rel. Toastmaster v. Mummert, 857 S.W.2d 869, 870-871 (Mo.App.1993)), see also Malone, 889 S.W.2d at 824-825. Respondent challenges venue in Greene County on two grounds: 1) that the petition fails to state a claim, and 2) that the information known to plaintiffs when suit was filed did not support *903 a reasonable legal opinion that a valid claim existed. Malone, 889 S.W.2d at 825.
A.
Respondent first claims that the petition, as it relates to Sumpter, is either "(a) totally frivolous, or (b) constitutes a series of unsupported legal conclusions," and, as such, fails to state a claim. The petition to which Respondent's criticism is directed, however, is the original petition filed in Greene County, rather than the second amended petition, which was on file at the time of the motion to transfer venue. Assuming that the original petition, as characterized by Respondent, is defective, the second amended petition indisputably contains factually specific averments sufficient to state a claim for relief.
Respondent's challenge to the original petition stems from reliance on State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820 (Mo. banc 1994), which stated: "By the terms of the [applicable venue] statute, venue is determined as the case stands when brought, not when a motion challenging venue is decided." This passage from DePaul is not on point. The venue statute and, in turn, the Court's reference to the statute in DePaul pertain to the residence of parties defendant to a lawsuit, not the condition of the pleadings. There is no challenge in this case to the residency of defendant Sumpter, but instead the challenge is to the sufficiency of the pleading against him. The statute requires only that challenges to venue based upon a party's residence must be determined as of the time suit was filed.
In the absence of a statutory mandate, we have no reason to penalize plaintiffs for defects in the substance of the original petition, as opposed to penalizing them for joinder of parties defendant whose residence defeats venue. To do so, moreover, would be inconsistent with the long-standing policy to freely grant leave to amend. We hold, therefore, that a challenge of pretensive venue based on defective pleadings should be determined when the challenge is adjudicated and that the trial court should consider the state of the pleadings at that time. In so holding, we do not depart from the different requirement that the pleadings, whether original or amended, must be premised on information known to plaintiffs when the suit was originally filed.
B.
Respondent's second ground for challenging venue is that the information available to the Breckenridges at the time they filed the original petition did not objectively give rise to a cause of action. Resolution of this point depends ultimately on plaintiff's evidence that defendant Sumpter was called to the hospital at approximately 10:10 P.M. or just a few minutes thereafter. Prior to the filing of the Greene County case, the plaintiffs obtained a "confidential medical statement" from their expert witness, Dr. Hubert Ritter, in which he opined that both Sumpter and Dr. Carlson deviated from the standard of care by their delay in the Csection surgery. This statement of Sumpter's liability ordinarily would have insulated the plaintiffs from a claim of pretensive venue. However, Dr. Ritter, during a subsequent deposition, qualified his earlier statement by commenting that it was based on the assumption made by plaintiffs that Sumpter had been contacted at 10:10 P.M. or shortly thereafter. That assumption is supported by information known to the Breckenridges when the Greene County suit was filed. By all accounts, the medical emergency was identified at 10:05 to 10:10 P.M., and the order went out to call in the three-person surgical team at 10:10 P.M. The inference from this information is that the team was called out immediately and should have commenced surgery well before the actual commencement at 10:45 P.M.
Respondent counters with deposition testimony from Sumpter, himself, that the call was not received until 10:24 or 10:25 P.M. Sumpter's deposition, however, was not taken until after the filing of the Greene County suit. Even if Sumpter's testimony is true, the Breckenridges should not be charged with prior knowledge of the testimony.
Under these circumstances, we hold that the information available at the time the Greene County petition was filed supported a reasonable legal opinion that a case could be made against defendant Sumpter.
*904 III.
One final procedural hurdle remains, although unaddressed by the parties. Respondent, having ordered the case transferred to Butler County, no longer has jurisdiction. The petition for writ of mandamus should have been directed to the presiding judge in Butler County, where the case is now lodged. In similar situations, this Court has substituted the proper respondent, see Malone, 889 S.W.2d at 826-27. Therefore, following Malone, the presiding judge of Butler County is substituted as Respondent and ordered to transfer the case to Greene County.
The alternative writ of mandamus is now made peremptory.
HOLSTEIN, C.J., BENTON, PRICE, COVINGTON and WHITE, JJ., and McHENRY, Senior Judge, concur.
ROBERTSON, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431460/ | 920 S.W.2d 720 (1996)
METROPOLITAN LIFE INSURANCE COMPANY, Robert J. Crimmins, Harry P. Kamen, Frank Lynch, Richard Mandell, Charles Sahner, Steven F. Branton, Wayne Guest, and Jere Chandler, Relators,
v.
The Honorable Tony LINDSAY, Judge of the 280th District Court of Harris County, Texas, Respondent.
No. 01-95-00603-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 29, 1996.
Rehearing Overruled February 29, 1996.
*721 Carl Jordan, Anne M. Pike, Randall Wilson, Houston, for appellant.
Craig Lewis, Houston, for appellees.
Before ANDELL, COHEN and WILSON, JJ.
OPINION
ANDELL, Justice.
The issue presented by this petition is whether the trial court abused its discretion by denying relators' motion to compel arbitration under the Federal Arbitration Act[1] (FAA).
I. BACKGROUND
The relator, Metropolitan Life Insurance Company (MetLife), is a mutual insurance company and several of its executives. The real parties in interest are all former Met-Life salesmen (the employees). In their petition, the employees allege that MetLife created a scheme to market life insurance as a "savings plan" or a "retirement plan" without ever mentioning the term "life insurance." The petition alleges that some of the employees were fired when they questioned or threatened to "blow the whistle" on the sales *722 technique program. Some of the employees claim that they were financially ruined when MetLife turned on them and accused them of improper marketing practices. The employees' petition states causes of action for fraud, conversion, defamation, tortious interference with contract, civil conspiracy, intentional infliction of emotional distress, negligence, gross negligence, unjust enrichment, and breach of contract.
II. STANDARD OF REVIEW
A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). The relator must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision. Id. There is no right of interlocutory appeal under the FAA; thus, review by petition for writ of mandamus is appropriate. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271-72 (Tex.1992).
There is a strong national policy favoring arbitration. Life of Am. Ins. Co. v. Aetna Life Ins. Co., 744 F.2d 409, 412-13 (5th Cir.1984). Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983). An order to arbitrate a particular grievance should not be denied unless it can be said with "positive assurance" that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960). Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Moses H. Cone, 460 U.S. at 24-25, 103 S. Ct. at 941; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Longoria, 783 S.W.2d 229, 230 (Tex.App.Corpus Christi 1989, no writ).
III. THE ARBITRATION CLAUSES
Twenty-eight of 31 employees are registered with the National Association of Securities Dealers (NASD) and executed a Form U-4 agreement that contains the following arbitration clause:
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in Item 10 as may be amended from time to time....
Because the employees are registered with the NASD, the rules of that organization govern which disputes must be resolved by arbitration. The NASD Code of Arbitration Procedure provides for arbitration of:
any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members;
(2) between or among members and associated persons;
(3) between or among members or associated person and public customers, or others;....
NASD Code § 1 (emphasis added).
The NASD Code also provides that an arbitrable matter under the section above must be arbitrated at the request of a member (such as MetLife):
Any dispute, claim, or controversy eligible for submission under part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) *723 with such member, shall be arbitrated under this Code, at the instance of:
(1) a member against another member;
(2) a member against a person associated with a member or person associated with a member against a member; and
(3) a person associated with a member against a person associated with a member....
NASD Code § 8(a) (emphasis added).
IV. THE HEARING
The trial court held a hearing on MetLife's motion to compel arbitration on May 4, 1995. At the hearing, the employees argued that their claims were not arbitrable because they fell within the insurance exception of § 1 of the NASD Code. The employees contended that the insurance exception applies because the case deals with how MetLife marketed and sold insurance. The trial court denied the motion to compel arbitration without assigning any reason for doing so.
V. THE ISSUES
This case presents two major issues: (1) Are the plaintiffs who signed the Form U-4 (the signatory plaintiffs) required to arbitrate their claims against MetLife, and (2) should the case of the plaintiffs who did not sign the Form U-4 (the nonsignatory plaintiffs) be stayed pending resolution of the arbitration proceedings?
1. Is arbitration required for the signatory plaintiffs?
MetLife argues that this case is not covered by the insurance exception because it is essentially an employment dispute, not litigation over its insurance practices. MetLife admits that this suit involves its insurance practices, but argues that the ultimate issue is whether it treated its employees fairly.
The plaintiffs respond that the entire basis of their lawsuit concerns MetLife's insurance practices. They argue, therefore, that the insurance exception applies and arbitration is not required. The plaintiffs cite no cases to support their interpretation, but rely instead on the plain language of the insurance exception.
No Texas case has interpreted the insurance exception, but several federal courts have addressed the issue.[2] In Killion v. MetLife, CA 3:94-CV-1536-R, slip op. at 7 (N.D.Tex. Nov. 23, 1994), the plaintiff was a branch manager who was fired by MetLife. An issue in the case was a marketing plan by MetLife that targeted health care professionals. Killion argued that the insurance exception applied. The trial court rejected the argument and stated, "Plaintiff cites no authority for his position, which has been rejected in other courts." Id.
In Voith v. MetLife, No. 4:CV-94-0364, slip op. at 11-12 (M.D.Pa. Dec. 6, 1994), the plaintiff sued MetLife for defamation after a representative for MetLife was quoted as saying that the plaintiff was fired for "improperly representing life insurance as retirement plans." The plaintiff claimed that the insurance exception applied because his defamation claim was based upon MetLife's alleged unlawful insurance practices. The court held that the actual basis for his defamation claim related to his employment and was subject to arbitration. Id.
In Young v. MetLife, CA No. 94-3274, slip op. at 2 (E.D.Pa. Sept. 12, 1994), the plaintiff alleged that he was wrongfully discharged after he reported fraudulent insurance practices by MetLife. The court held that the insurance exception did not apply because plaintiff's claims stemmed from the alleged conduct of his supervisors in discharging him after he questioned their business practices. The court further found that the "crux of this matter is an employment dispute that falls within the scope of the arbitration agreement." Id.
In Trumbetta v. Metropolitan Life Ins. Co., CA No. 94-3275, slip op. at 6 n. 3, 7, 1994 WL 481152 (E.D.Pa. Sept. 1, 1994), the plaintiff, a sales agent for MetLife, sued the company for wrongful discharge, defamation, and several other causes of action. The *724 plaintiff claimed that the insurance exception applied. The court rejected that argument, stating:
While it is true that the plaintiff makes some general allegations in the complaint that MetLife is engaging in certain unlawful insurance practices, the basis of his claims stem from actions taken by the defendants against the plaintiff since he did not participate in their alleged scheme. Thus, whether or not the defendants actually engaged in any unlawful insurance practices is irrelevant to this dispute. The thrust of plaintiff's complaint is that the defendants harassed and persecuted him such that he lost business and this ultimately was constructively discharged [sic].
....
Although the plaintiff in this case made some general allegations concerning the defendant's business practices, I find that the actual basis for each of his claims is the conduct of his supervisors that led to his constructive discharge. Thus, I find that the plaintiff's claims all relate to his employment and termination and are subject to arbitration.
Id.
We agree with the reasoning of the cases cited above. This case is essentially an employment dispute, not a case about MetLife's insurance business. At a trial on the merits, the trial court will not necessarily be required to determine whether the marketing practices were in fact illegal; rather, the court must decide whether MetLife required the plaintiffs to follow the marketing practices or whether the plaintiffs followed these practices without authority from MetLife. Thus, the primary issue is how MetLife treated its employees. MetLife's marketing practices are only a secondary issue.[3] Therefore, we find that the trial court abused its discretion by denying MetLife's motion to compel arbitration.
2. Should the proceedings of the nonsignatory plaintiffs be stayed during arbitration?
MetLife also contends the trial court abused its discretion by refusing to stay the case of the nonsignatory plaintiffs while the arbitration with the signatory plaintiffs is pending. The issue this Court must decide is whether section 3 of the FAA[4] mandates a stay of the entire case in this situation, or whether a stay is discretionary.
There is a split in the federal courts of appeal on this issue. MetLife urges us to follow the example of the Seventh Circuit, which has held that section 3 requires a stay of the entire case, even as to parties who have not signed an arbitration agreement. See Morrie Mages & Shirlee Mages Found. v. Thrifty Corp., 916 F.2d 402, 407 (7th Cir. 1990). The Fifth Circuit, however, has held that section 3 does not apply to parties who are not contractually bound by an arbitration agreement, though the court in its discretion may order a stay of the entire case. See Complaint of Hornbeck Offshore Corp., 981 F.2d 752, 755 (5th Cir.1993).
a. Seventh Circuit cases
In Morrie Mages, the purchaser of a small business who had agreed to arbitrate disputes with the seller instead sought to avoid arbitration by filing suit against the seller's affiliate, which had signed as a guarantor. The guarantor, though not a party to the arbitration agreement, moved for a stay under section 3. The Seventh Circuit held that section 3 required a stay of the entire action *725 even though the guarantor was not a party to the arbitration agreement.
Section 3 of the FAA plainly requires that a district court stay litigation where issues presented in the litigation are the subject of an arbitration agreement.
....
[The guarantor], as a party to litigation involving issues subject to an arbitration agreement, is entitled to a stay under section 3 of the FAA regardless of its status as a party to the arbitration agreement.
Morrie Mages, 916 F.2d at 407.
In Kroll v. Doctor's Assocs., 3 F.3d 1167, 1169 (7th Cir.1993), the plaintiff was the franchisee of a "Subway" sandwich shop who sued the franchisor and an employee of the franchisor. There was an arbitration agreement between the franchisee and the franchisor, but the employee was not a party to that agreement. The court held that the employee was nonetheless entitled to a stay under § 3.[5]
In Fox v. Stratton Oakmont Inc., No. 93 C 2228, slip op. at 11-12, 1993 WL 433777 (E.D.Ill. Oct. 22, 1993), two plaintiffs (Fox and Fox, Ltd.) sued the defendants over the defendants' handling of their brokerage accounts. There was an arbitration agreement between Fox and the defendants, but Fox, Inc. was not a party to that agreement. The court held that section 3 required a stay of litigation where the issues presented in the litigation are the subject of an arbitration agreement, even as to parties to the litigation that are not also parties to the arbitration agreement. Id. The court noted that the result was particularly appropriate where "the plaintiff that is required to arbitrate and the second plaintiff that is not so bound share the same complaint with the same issues." Id.
b. Fifth Circuit cases
In Complaint of Hornbeck, 981 F.2d at 753, Tunisia chartered a barge and tow from Coastal who, in turn, chartered the tow from Hornbeck. The Coastal/Hornbeck charter contained an agreement to arbitrate. While under tow in the Atlantic Ocean, the barge sank. Hornbeck filed an action in federal court under the Limitation of Liability Act.[6] Tunisia filed a claim for its lost cargo in Hornbeck's limitation action, and Coastal filed a claim for indemnity and contribution from Hornbeck. Id. The Fifth Circuit held that section § 3 did not require a stay of Tunisia's claim against Hornbeck because Tunisia was not a party to the arbitration agreement. Id. at 755.
Because [Tunisia] is not a party to the arbitration clause in issue, however, its claims against Hornbeck are unaffected by any stay granted under § 3. Accordingly, we do not address its contentions regarding the § 3 stay. We note, however, that on remand, it will lie within the district court's discretion to stay the claims between the nonarbitrating parties pending outcome of the arbitration simply as a means of controlling its docket.
Complaint of Hornbeck, 981 F.2d at 755 (citations omitted).
In Matter of Talbott Big Foot, Inc., 887 F.2d 611 (5th Cir.1989), the decedent was killed aboard a ship owned by Patterson. Patterson filed a limitation action and the decedent's family filed claims in the proceeding. The plaintiffs also filed a direct action against Patterson's insurer. Although there was an arbitration agreement in the insurance policy between Patterson and the insurer, the plaintiffs were not parties to that agreement. The Fifth Circuit held that section *726 3 did not require a stay of the plaintiffs' case pending resolution of the arbitration. Id. at 614.
[The FAA] does not require arbitration unless the parties to a dispute have agreed to refer it to arbitration. Likewise, the mandatory stay provision of the Act does not apply to those who are not contractually bound by the arbitration agreement. Obviously, the [plaintiffs], who are not parties to the [insurer's] policy, have not agreed to arbitrate their claims or defer their action while the insurer and insured arbitrate coverage disputes. Thus, the Federal Arbitration Act, the source of the federal policy favoring arbitration, has no application to require [plaintiffs] to arbitrate or to stay their lawsuits.
Matter of Talbott Big Foot, 887 F.2d at 614. However, the court noted that although a mandatory stay was not required, a discretionary stay may be appropriate. Id.
In Coastal (Bermuda) Ltd. v. E.W. Saybolt & Co., 761 F.2d 198 (5th Cir.1985), the district court on its own motion stayed the plaintiff's case against a defendant who was not a party to the arbitration agreement at issue. Though the appeal was dismissed for lack of jurisdiction, the Fifth Circuit addressed the propriety of the district court's stay order.
[S]ince this case does not present any issues referable to arbitration under an agreement between Coastal and Saybolt, § 3 cannot be the source of the district court's authority to stay a claim between those parties. "[T]he arbitrability of a dispute is to be decided by the courts on the basis of the contract entered into by the parties."
Coastal (Bermuda) Ltd., 761 F.2d 198, 203 n. 6 (citations omitted). The court also noted that the district court, in its discretion, could stay the case, but cautioned that a discretionary stay should be granted only in cases of "genuine necessity." Id.
The Fifth Circuit opinions appear more in line with the direction of the United States Supreme Court. In Moses H. Cone Mem. Hosp. v. Mercury Const., 460 U.S. 1, 20, 103 S. Ct. 927, 939, 74 L. Ed. 2d 765 (1983) the Court stated:
Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement.
....
In some cases, of course, it may be advisable to stay litigation among the nonarbitrating parties pending the outcome of the arbitration. That decision is one left to the district court (or the state trial court under applicable state procedural rules) as a matter of its discretion to control its docket.
Moses H. Cone, 460 U.S. at 20 n. 23, 103 S. Ct. at 939 n. 23 (emphasis added).
As we stated earlier, mandamus is appropriate only if the facts and the law allow but one decision. The existing law on this issue gave the trial judge two options: (1) follow the Seventh Circuit and stay the entire case pending resolution of the arbitration, or (2) follow the Fifth Circuit and allow the nonsignatory plaintiffs to continue their lawsuit against MetLife. We cannot say the district court abused its discretion by refusing to stay the litigation of the nonsignatory plaintiffs.[7]
We conditionally grant the writ of mandamus. We order the trial court to vacate its order of May 4, 1995, and to enter an order compelling arbitration between MetLife and the signatory plaintiffs. We are confident that the respondent will comply with this order, and a writ of mandamus will issue only if she fails to do so.
NOTES
[1] 9 U.S.C.A. § 1 (West 1970).
[2] We note that most of the cases that address this issue are unreported opinions from the federal district courts and are not binding authority. However, we have reviewed those opinions and find their reasoning persuasive.
[3] We note that the employees' petition does not state a cause of action for wrongful discharge for failure to perform an illegal act. See Hauck v. Sabine Pilots, Inc., 672 S.W.2d 322, 323-24 (Tex. App.Beaumont 1984). Therefore, we need not decide whether such a case would be an employment dispute or a suit about insurance.
[4] Section 3 states:
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C.A. § 3 (West 1970).
[5] The Kroll court noted that in Morrie Mages, the nonarbitrating party's liability was derivative, i.e., the guarantor would not be liable unless the guarantee (a party to the arbitration agreement) was liable. In Kroll, the nonarbitrating employee's liability was not derivative. Nevertheless, the Kroll court decided that the case against the nonarbitrating employee should be stayed because the suit involved an "issue referable to arbitration."
[6] 46 U.S.C.A.App. §§ 181-195 (West 1958 & Supp.1995). The Act allows a shipowner to limit its liability for damage arising from a maritime casualty to the value of the vessel together with her pending freight, if the casualty occurs without the privity or knowledge of the shipowner. 46 U.S.C.A. § 183(a) (West 1958). After the shipowner files a limitation action, the limitation court stays all related claims against the shipowner and requires all claimants to assert their claims in the limitation action.
[7] Of course, nothing in this opinion will prohibit the trial court from reconsidering a discretionary stay on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431456/ | 920 S.W.2d 734 (1996)
Fahim NAWAS, individually and as next friend of Elias Nawas, a Minor Child, Appellants,
v.
R & S VENDING, Dr. Pepper Bottling Company of Texas, and Trails of Ashford Apartments, Appellees.
No. 01-95-00569-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 29, 1996.
Rehearing Overruled April 16, 1996.
*735 S. Aftab Sharif, Houston, for Appellants.
Paul A. Hoefker, Houston, for Appellees.
*736 Before OLIVER-PARROT, C.J., and MIRABAL, O'CONNOR and WILSON, JJ.
OPINION
OLIVER-PARROT, Chief Justice.
This case involves an appeal from the trial court's dismissal for want of prosecution[1] and its subsequent denial of appellant's motion to reinstate. Instead of refiling the case, appellant, Fahim Nawas, individually and as next of friend of his minor child, Elias Nawas, brought this appeal. We affirm.
In two points of error, Nawas argues that the trial court abused its discretion by dismissing the case for want of prosecution and for denying the motion to reinstate.
Summary of Facts
On July 19, 1993, Fahim Nawas, the father of Elias Nawas, a 17-year-old minor child, filed an original petition on the child's behalf claiming personal injuries as a result of a vending machine falling on the child in the laundry room at the Trails of Ashford Apartments. On June 17, 1994, a scheduling order was sent to all attorneys of record setting the case for trial during the two-week period beginning January 16, 1995. On December 22, 1994, Nawas' attorney, S. Aftab Sharif, filed a Motion for Continuance asserting that he had not received the scheduling order and that he had learned about the trial setting for the first time on December 14, 1994. The prejudice asserted by Sharif was that he had not yet designated expert witnesses and that he had a business trip to London planned from January 18 to January 23, 1995, and a four-week vacation in Pakistan planned for February 24, 1995.
After a hearing was held on January 9, 1995, the Motion for Continuance was denied. A pretrial conference was set for noon on January 13, 1995, at which time the issues of the lack of receipt of notices and the complexity of the case were to be discussed. The conference was held as scheduled and the only evidence presented at the conference on the issue of notice was the testimony of the trial court coordinator who testified that, according to the court's records, scheduling orders were sent to all attorneys of record.
The trial judge also inquired into the nature of Nawas' case. The medical records on file revealed that the minor plaintiff's left knee was fractured in the accident, but had healed normally. Interrogatory answers indicated that the medical expenses incurred totaled $2,610. The judge postponed the trial setting to January 23, 1995, to allow Sharif additional time to prepare for trial, and to designate an expert. The pretrial conference was adjourned until January 17, 1995.
Neither Nawas nor his attorney, Sharif, appeared for the pretrial conference on January 17, 1995. The trial coordinator was informed 30 minutes prior to the conference that Sharif was suffering from food poisoning. The judge requested that an affidavit supporting these facts be then faxed to the court. However, the court did not receive the affidavit until a week later. Consequently, the judge reset the pretrial conference to be held immediately before trial on January 23, 1995.
On January 23, 1995, neither Nawas nor his attorney appeared for the pretrial conference or trial. The trial coordinator had been informed that Sharif had just returned from London, was suffering from an illness and would be unavailable for trial. The judge "determined as a fact that Plaintiff's attorney Mr. Sharif was attempting to avoid [the] denial of his Motion for Continuance by simply refusing to come to trial."
The judge sent notice to all attorneys that the case would be reset one last time for January 24, 1995, and that failure to appear would result in a dismissal for want of prosecution. Again, neither Nawas nor his attorney of record appeared, but were represented by a different attorney for the purpose of requesting another continuance, which was denied.
Point of Error One
In their first point of error, appellants argue that the trial judge abused his discretion *737 by dismissing the case for want of prosecution.
Specifically, appellant contends that the cause was not on file for an unreasonable amount of time such that a discontinuance was warranted, that they diligently pursued the prosecution of this case and that there would be no prejudice to appellees in a delay of this case by granting the continuance.
Throughout their brief, appellant failed to provide citations to the record in support of their arguments and their recitation of the statements of fact. The Texas Rules of Appellate Procedure require that an appellate brief include a fair, condensed statement of facts pertinent to the points of error raised, with references to the pages in the record where these facts may be found. Tex.R.App.P. 74(f). An appellate court is not required to search a record without guidance from an appellant to determine whether assertions regarding the facts of the case are valid. Anheuser-Busch Companies, Inc. v. Summit Coffee Co., 858 S.W.2d 928 (Tex. App.Dallas 1993, writ denied). Notwithstanding appellant's failure to provide proper citations to the record, we will address appellant's two points of error.
The standard of review in a dismissal for want of prosecution and a denial of a motion to reinstate is whether the trial court has committed a clear abuse of discretion. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Ellmossallamy v. Huntsman, 830 S.W.2d 299, 300 (Tex.App.Houston [14th Dist.] 1992, no writ); Brown v. Howeth Inv., Inc., 820 S.W.2d 900, 903 (Tex.App.Houston [1st Dist.] 1991, no writ). An abuse of discretion occurs if the trial court acts without reference to any guiding rules or principles or acted in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).
The Texas Rules of Civil Procedure afford a trial court discretion to dismiss a case for want of prosecution if a party seeking relief fails to appear for any hearing or trial of which the party had notice. City of Houston v. Thomas, 838 S.W.2d 296 (Tex. App.Houston [1st Dist.] 1992, no writ); Tex.R.Civ.P. 165a(1). The trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting and the existence of reasonable excuses for delay. City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.App.Houston [1st Dist.] 1992, no writ).
After appellants' failure to appear at two hearings and one trial setting, the judge sent by fax a notice to all attorneys of record that the case would be reset one last time to 10:00 a.m. on January 24, 1995, and that failure to appear would result in dismissal for want of prosecution. The record reflects that neither appellants nor their attorney appeared for this final pretrial hearing and trial; however, another attorney appeared on their behalf solely for the purpose of requesting another continuance, which was denied. The trial coordinator was informed on January 30, 1995, prior to the motion to reinstate, that Sharif had left the country for vacation on January 28, 1995.
The judge concluded as a result that Sharif's failure to appear was either intentional or a result of conscious indifference toward the court. The final two paragraphs of the court's order granting the dismissal for want of prosecution clearly express the court's findings. There, the court stated:
15. Dismissal for want of prosecution is a serious matter, and one that I have not considered lightly, especially as the problem appears to be not so much with the Plaintiffs as with their attorney. However, the Plaintiff [sic] are bound by the acts of their agent, and must be deemed to have agreed to his actions.
16. This is the first time in 5 years as a trial judge that I have had to overrule a motion for continuance based upon attorney illness, but I have never before been presented with an attorney so clearly able to trot around the globe despite his protestations of illness. Under the circumstances herein, if the case cannot be dismissed for want of prosecution, then any attorney who decides not to go to trial for his personal convenience may do so by simply refusing to appear, without fear of the consequences. This cannot be tolerated. *738 Having postponed the trial twice, and given Plaintiffs ever [sic] opportunity and warning that they must appear, their failure to do so requires that this case be, and it is hereby, dismissed for want of prosecution.
The court gave fair warning to the parties that their failure to appear for the January 24th trial setting would result in dismissal of the case. Appellants state in their brief that the excuse for their failure to appear was that Sharif had once again become too ill to represent his clients at trial and was instructed by his doctor to take seven days rest with three days complete bed rest.
Appellants and their attorney failed to appear for hearings and trial settings for which they had notice. In light of the history of the case as set forth above, we cannot say the judge acted in an arbitrary or unreasonable manner in dismissing the case for want of prosecution. We overrule appellants' first point of error.
Point of Error Two
In their second point of error, appellants argue that the trial court abused its discretion in denying their motion to reinstate.
A case may be reinstated upon a finding by the trial court that the failure of a party or his attorney to appear was not intentional or the result of conscious indifference but was due to an accident or a mistake or that the failure has been otherwise reasonably explained. Tex.R.Civ.P. 165a(3). Reinstatement must be granted if the trial court finds that the failure of the party or his attorney was not intentional or the result of conscious indifference. Brown v. Howeth Investments, Inc., 820 S.W.2d 900, 902 (Tex. App.Houston [1st Dist.] 1991, writ denied).
The record does not contain a copy of the trial court's order denying the motion to reinstate, nor does it contain transcripts from the hearing on the motion to reinstate. However, in the dismissal order, the trial court found as a matter of fact that appellant and appellants' counsel's failure to appear at the final trial setting was intentional or a result of conscious indifference.
To support their argument, appellants cite a number of cases wherein appellate courts have reversed dismissals when reasonable explanations were provided for the failure to appear. See Torres v. Rios, 869 S.W.2d 555 (Tex.App.Corpus Christi 1993, no writ); see also Clark v. Pruett, 820 S.W.2d 903 (Tex.App.Houston [1st Dist.] 1991, no writ). Here, appellants have provided no such explanations.
In support of their motion to reinstate, appellants provided the affidavits of two physicians to support Sharif's contention that he failed to appear at the hearings and trial settings due to illness. However, though Sharif claims to have been advised by his physician on January 23, 1995, to rest for seven days and was therefor unable to attend the January 24, 1995, trial setting, he was able to leave the country on vacation on January 28, 1995, two days shy of the seven days rest his physician allegedly had advised.
Examining the record as a whole, it cannot be said that the judge clearly abused his discretion in refusing to grant appellants' motion to reinstate. There is sufficient evidence in the record to support the judge's conclusions that appellant and his counsel intentionally or as a result of conscious indifference failed to appear for scheduled hearings and trial.
We overrule appellant's second point of error and affirm the judgment of the trial court.
O'CONNOR, J., dissents.
O'CONNOR, J., requested a vote to determine if the case should be heard en banc, pursuant to Tex.R.App.P. 79(d), (e) and TEX.R.APP.P. 90(e).
OLIVER-PARROTT, C.J., and MIRABAL, WILSON, HEDGES and TAFT, JJ., voted against en banc consideration.
COHEN, HUTSON-DUNN and ANDELL, JJ., did not participate.
DISSENTING OPINION FROM DENIAL OF EN BANC REVIEW
O'CONNOR, Justice.
I dissent. I would reverse and remand for trial. This case was barely 18 months old at the time of dismissal.
*739 In its docket control order mailed to the parties on June 17, 1994, the trial court set the case for trial for a two-week period beginning January 16, 1995. Two of the parties in this case did not receive that order, the plaintiffs and one of the defendants. The plaintiffs actually learned their case was set for trial on December 14, 1994, when the defendant who did not get the order called to ask the plaintiffs to agree to a continuance. The plaintiffs consented to that defendant's motion for continuance, and filed their own motion. In their motion for continuance, the plaintiffs alleged they had not yet designated expert witnesses, and that their lawyer had a planned business trip to London from January 18 to January 23, 1995 and a four-week vacation in Pakistan beginning February 23, 1995. The trial court overruled the motion for continuance on January 9, 1995. At a hearing on January 13, the trial court postponed the trial until the week of January 23, 1995, and gave the plaintiffs until January 17, 1995, to designate an expert.
Neither the plaintiffs nor their attorney appeared at the pretrial conference hearing set for January 17 or for the trial setting on January 23. The court coordinator called the plaintiffs' lawyer's office on January 23 and was told he had just returned from London and was suffering from food poisoning. The court refused to believe that the attorney was ill and set the case for trial on the following day. On January 24, another attorney appeared for the plaintiffs and asked for a continuance based on the illness of the plaintiffs' counsel. The court signed an order dismissing the case on January 30.
After the court dismissed the case, the plaintiffs filed a motion to reinstate based on the illness of their attorney. In the motion, the plaintiffs stated that the attorney had been seriously ill. Attached to the motion were two medical affidavits. One was the affidavit of a doctor who stated he examined the plaintiffs' attorney on January 17, and that he had food poisoning. The other affidavit was by a doctor at Ben Taub Hospital that he examined the plaintiffs' attorney on January 22 and 23, and he was ill and he advised him to stay in bed and take prescribed medication. The court overruled the motion to reinstate and entered a lengthy order explaining its reasons for its ruling.
Reason for denying first motion for continuance
The primary reason the court gave for denying the first motion for continuance was that the court coordinator testified at a hearing that she mailed the notice to all parties. The court concluded that it was incredible that some of the parties received the notice and the plaintiffs did not. Thus, the court found that the plaintiffs received notice of the hearing several months before the trial setting.
The fact of mailing creates a rebuttable presumption that it was received. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994). When the plaintiffs filed an affidavit verifying that he did not receive the notice, that information rebutted the presumption that the notice was not received. Id.; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.1987). The presumption of receipt is not evidence and vanishes when opposing evidence is introduced that the notice was not received. Cliff, 724 S.W.2d at 780; see also Roob v. Von Beregshasy, 866 S.W.2d 765, 767 (Tex.App.Houston [1st Dist.] 1993, writ denied) (court could not disregard the appellant's verified and uncontradicted motion for continuance in which he stated he did not receive the notice).
The Cliff case is instructive because it mirrors the facts (but not the result) in this case. In Cliff, the trial court rendered a post-answer default based on a notice sent to the plaintiffs of a trial setting. The plaintiffs filed an affidavit that they did not receive the notice. The Supreme Court reversed and remanded to the trial court because the affidavit was sufficient to overcome the presumption of receipt. Id. We should do the same.[1]
*740 Reason for refusing to reinstate
The reason the trial court gave for refusing to reinstate the case was that it did not believe the plaintiffs' attorney was too ill to attend the hearing on January 17 and the trial on January 24. The trial court held that the lawyer's illness was too close to his vacation to be believable. The defendants did not file controverting affidavits that challenged the veracity of those affidavits.
I do not believe the trial court had the option to disbelieve the medical doctors' affidavits. When a party files an affidavit from a doctor who verifies that the person is too ill to attend trial, unless the evidence is controverted, the court cannot disbelieve the affidavits. The trial court did not have the discretion to reject the uncontroverted facts in the doctors' affidavits. See Roob, 866 S.W.2d at 767; Verkin v. Southwest Center One, Ltd., 784 S.W.2d 92, 94 (Tex.App.Houston [1st Dist.] 1989, writ denied).
Technical faults of the brief
The majority takes the plaintiffs to task for not providing citation to the record. The record in this case consists of a transcript, and it is only 77 pages long. I would hold that the issue of dismissal is so simple that the failure to cite to the transcript is not an error that should be considered by the Court.
Summary
I believe the trial court abused its discretion in refusing to reinstate this case.
NOTES
[1] The trial court's order granting dismissal did not state whether the dismissal was with or without prejudice; therefore, it is presumed to be without. See Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex.App. Houston [1st Dist.] 1993, no writ).
[1] Under Tex.R.Civ.P. 245, the parties are entitled to 45 days notice of the trial setting. The plaintiffs did not get the required notice and the trial court should have granted the motion for continuance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431464/ | 920 S.W.2d 46 (1996)
COMMONWEALTH HEALTH CORPORATION and the Medical Center at Bowling Green, Appellants,
v.
Donna CROSLIN, Phillip Croslin and Donna Croslin As Next Friend and Parent of Courtney Nicole Croslin, Michael E. Caudill and William S. Haynes, Jr., Appellees.
No. 95-SC-319-DG.
Supreme Court of Kentucky.
April 25, 1996.
Murry A. Raines, Regina Abrams, Bowling Green, for Appellants.
Jeffrey C. Swann, William C. Pool, Louisville, for Healthcare Recoveries, Inc.
Susan S. Durant, Shelby C. Kinkead, Jr., Lexington, for Amicus Curiae Southeastern Group, Inc., d/b/a Blue Cross Blue Shield of Kentucky and Southeastern.
Roy Kimberly Snell, LaGrange, for Amicus Curiae Kentucky Academy of Trial Attorneys.
Michael E. Caudill, William S. Haynes, Bowling Green, for Appellees.
STEPHENS, Chief Justice.
Appellee, Donna Croslin, was seriously injured in a two car collision in which the second driver was killed. At the time of the accident she was employed by The Medical Center at Bowling Green, a subsidiary of Commonwealth Health Corporation [hereinafter CHC]. CHC provided a health insurance plan which was enacted pursuant to the Employment Retirement Income Security Act, 29 U.S.C. § 1001, [hereinafter ERISA]. The insurance plan paid approximately $120,000 on behalf of Croslin. The plan contained a subrogation provision which required reimbursement of those payments if Croslin made any recovery from the legally responsible party.
Croslin filed a complaint in Warren Circuit Court naming the estate of the deceased *47 driver and his employer as defendants. Less than one month later, CHC filed a motion to intervene in the action specifically seeking subrogation of the approximately $120,000 paid on behalf of Croslin. Subsequently, CHC settled separately with the defendants for $83,000. When Croslin learned of the settlement, counsel filed an Assertion of Attorney's Lien pursuant to KRS 376.460 and KRS 304.39-070, seeking to recover attorney's fees and court costs.
The trial court passed on this motion pending the outcome of the underlying litigation between Croslin and the named defendants. Croslin settled her claim with the defendants shortly after trial began. The trial court, after conducting a hearing on the issue of attorney fees and court costs, awarded attorney's fees in the amount of twenty-five percent (25%) of the settlement sum received by CHC and required CHC to pay one-half of the court costs. The award was based upon a finding that appellees Caudill and Haynes, attorneys for Croslin, had performed work that greatly benefitted CHC by establishing liability, reasonable medical expenses and causation in the underlying litigation. The trial court found that "the doctrines of implied contract and quantum meruit mandate that CHC reimburse" appellees for court costs. The award of attorney fees was based upon provisions of the Motor Vehicle Reparations Act.
CHC appealed the trial court award to the Court of Appeals. The Court of Appeals affirmed the trial court's award of fees and costs but disagreed on the reasoning. At both the trial court and in the Court of Appeals, CHC had argued, among other things, that ERISA preempted the state claim for fees. The Court of Appeals, after the parties filed their initial briefs, raised, sua sponte, the question of whether the state court had subject matter jurisdiction pursuant to 29 U.S.C. § 1132(e). Appellants, in their supplemental brief, conceded subject matter jurisdiction. Appellees addressed only the question of preemption under 29 U.S.C. § 1144. After careful review of the pertinent statutes, we conclude that ERISA, 29 U.S.C. § 1132(e), vests exclusive jurisdiction of this matter in the federal courts.
As an initial matter, it is important to note that defects in subject matter jurisdiction may be raised by the parties or the court at any time and cannot be waived. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L. Ed. 126 (1908). Further, we are aware of the general principle that state courts have jurisdiction over cases arising under federal law "absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state court adjudication." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S. Ct. 2870, 2875, 69 L. Ed. 2d 784 (1981). It is well understood that "Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly." Id. at 479, 101 S. Ct. at 2876. Congress has explicitly confined jurisdiction over the above-styled action in 29 U.S.C. § 1132(e). Section 1132(e)(1) states:
Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.
There is no question that this case does not fall within the exception defined in "subsection (a)(1)(B)." It is equally clear that the outcome of this action depends upon an interpretation of the employee benefit plan which is subject to ERISA. Therefore, the above styled action is a "civil action brought under this subchapter."
Appellant maintains that § 1132(e) does not apply because CHC does not qualify as a participant, beneficiary or fiduciary as required by the statute. We agree that appellant does not qualify as any of the above named entities, however, they are not the only parties to this action. It is a matter of record that the attorney's lien filed against CHC bears Donna Croslin's name, as does the instant case. Further, it is uncontested that Donna Croslin was a participant in the employee benefit plan offered by CHC. Thus this action was "brought by . . . a participant" *48 as required by § 1132(e). This action falls squarely within the mandate of § 1132(e) for exclusive jurisdiction in the federal court.
It is understood that if a court does not have subject matter jurisdiction, the court has no "power to do anything at all." Duncan v. O'Nan, Ky., 451 S.W.2d 626, 631 (1970). Therefore, the trial court order awarding attorney's fees and costs is void. Utilizing our inherent power to do so, we order this case dismissed, sua sponte, for lack of subject matter jurisdiction. See, Storer Communications v. Oldham County, Ky.App., 850 S.W.2d 340 (1993).
For the foregoing reasons, we reverse the Court of Appeals and remand this case to the trial court with directions to enter a judgment which is consistent with this opinion.
All concur.
BAKER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431466/ | 920 S.W.2d 809 (1996)
Keith WHITE and Paula White, Individually, and as Parents and Natural Guardians of Brandi White, a minor, Appellants,
v.
LIBERTY EYLAU INDEPENDENT SCHOOL DISTRICT, Appellee.
No. 06-95-00057-CV.
Court of Appeals of Texas, Texarkana.
Argued March 26, 1996.
Decided April 2, 1996.
Rehearing Overruled April 2, 1996.
*811 Phillip J. Duncan, Duncan & Rainwater, Little Rock, AR, Nick Patton, Texarkana, for Appellants.
John R. Mercy, Atchley, Russell, Waldrop, Texarkana, for Appellee.
Kelly B. Tidwell, Texarkana, for Guardian Ad Litem.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
OPINION
BLEIL, Justice.
Keith and Paula White appeal a take-nothing judgment entered following a jury trial in their personal injury suit against Liberty Eylau Independent School District. The Whites challenge the trial court's submission of certain jury instructions and definitions, as well as the court's failure to submit alternative instructions they requested. They also attack the legal and factual sufficiency of the evidence supporting the jury's verdict. Although we conclude that the trial court erred in instructing the jury, we hold that the error does not warrant reversal and affirm the judgment.
On April 1, 1991, Keith and Paula White's car was struck by a school bus carrying students of Liberty Eylau Independent School District. The driver of the bus, Dorothy Brantley, was employed by the Bowie County Schools Transportation Department and was also a sixth-grade teacher with the school district. Keith and Paula White were both injured in the accident. In addition, the accident caused Paula, who was six months pregnant, to begin premature labor. Later that day, she gave birth by Caesarean section to Brandi White, who also sustained injuries in the accident.
The Whites sued Brantley, Bowie County Schools Transportation Department, and Liberty Eylau Independent School District. After jury selection, but before opening statements, the Whites settled with Brantley and the transportation department. The court then granted the school district's motion for summary judgment on the ground that Brantley was not acting within the scope of her employment as an employee of the school district at the time of the accident. On appeal by the Whites, this court reversed, holding that the summary judgment evidence raised fact issues as to whether the school district and the transportation department jointly controlled the operation of the buses. White v. Liberty Eylau Sch. Dist., 880 S.W.2d 156 (Tex.App.Texarkana 1994, writ denied).
At trial on remand, the jury found that Brantley was not acting as an employee of the school district at the time of the accident, thereby absolving the school district of liability for the Whites' injuries. The Whites now challenge this finding.
The court submitted the following question and instructions to the jury:
On the occasion in question, was Dorothy Brantley acting as an employee of Liberty-Eylau Independent School District?
An "employee" is a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
To be an employee of Liberty-Eylau Independent School District, Dorothy Brantley must have been acting within the scope of her general authority at the time of the accident in furtherance of the district's business, and for the accomplishment of the object for which she was employed.
A person may be the servant of two employers at one time as to one act if the service to one does not involve an abandonment of the service to the other. The test of dual employment is whether both employers had the right to control and direct the employee's actions at the time of the accident.
The trial court is to submit such instructions and definitions as shall be proper to enable the jury to render a verdict. Tex.R.Civ.P. 277. However, the trial court has considerable discretion in determining the necessity and propriety of explanatory *812 instructions and definitions. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Louisiana & Arkansas Ry. Co. v. Blakely, 773 S.W.2d 595, 598 (Tex.App.Texarkana 1989, writ denied). An instruction or definition given by the trial court is improper only if it misstates the law as applicable to the facts. M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 631 (Tex.App.Houston [14th Dist.] 1992, writ denied). The court may refuse to give a requested instruction that is not necessary to enable the jury to render a verdict, even if the instruction is a correct statement of the law. Paschall v. Peevey, 813 S.W.2d 710, 713-14 (Tex.App.Austin 1991, writ denied); Blakely, 773 S.W.2d at 599.
The Whites contend that the court erred in submitting the definition of "employee" contained in the first sentence of the instructions. They argue that the reference in the definition to an independent contractor was improper, since neither party contended that Brantley was an independent contractor. They note that an interrogatory submitted by the jury to the court during deliberations asked for a definition of independent contractor. The Whites claim that this demonstrates that the jury was needlessly confused by this issue.
The definition contained in the challenged sentence was taken verbatim from the Texas Tort Claims Act, the statute under which this suit was brought. TEX.CIV.PRAC. & REM.CODE ANN. § 101.001(1) (Vernon 1986). The instruction was thus not an incorrect statement of the law, and the trial court did not abuse its discretion in submitting it to the jury.
The Whites also challenge the following jury instruction which preceded the questions in the court's charge:
You are instructed that Liberty-Eylau Independent School District is a separate government entity from Bowie County Schools Transportation Department. Liberty-Eylau Independent School District entered into an interlocal contract with Bowie County Schools Transportation Department for transportation services. A person acting under an interlocal contract does not, because of that action, hold more than one civil office of emolument or more than one office of honor, trust or profit.
(Emphasis added.) The Whites objected to the final sentence of this paragraph as irrelevant and an improper statement of the law as applied to the facts of this case.
The language which the Whites challenge is taken verbatim from section 791.004 of the Interlocal Cooperation Act. TEX.GOV'T CODE ANN. § 791.004 (Vernon 1994). The enactment of this section was clearly motivated by article 16, section 40 of the Texas Constitution: "No person shall hold or exercise at the same time, more than one civil office of emolument...." TEX. CONST. art. XVI, § 40. By enacting section 791.004, the legislature, pursuant to authority given it by article 3, section 64(b) of the constitution, quite clearly intended merely to establish that a person acting in two or more official capacities pursuant to an interlocal contract does not violate article 16, section 40 of the constitution. TEX. CONST. art. III, § 64, art. XVI, § 40. Given the statute's clear purpose, it was improper for the trial court to include its language in the jury instructions. Whether Brantley, or any other person involved in the events surrounding this case, was unconstitutionally holding two public offices was not even remotely at issue. In light of the facts of the case, this instruction could have been taken by the jury to imply that Brantley could not legally have held more than one public office at a time, thereby precluding a finding that she was an employee of both the transportation department and the school district. The instruction given by the court was thus a misstatement of the law as applicable to the facts of this case. See Brummerhop, 840 S.W.2d at 631.
An error in the jury charge is reversible only if, in light of the entire record, it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX.R.App.P. 81(b)(1); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995). The erroneous instruction given here appeared in the charge before, and on a separate page from, the question concerning Brantley's employment with the school district. Furthermore, as quoted above, the third paragraph of instructions and definitions *813 which directly accompanied the relevant question contained language explaining that it was possible for a person to be an employee of two employers at one time as to one act. This two-sentence instruction, which was requested by Brantley and which appeared immediately after the question, was sufficient to alleviate any prejudice caused by the previous erroneous instruction. Because this error in the jury charge probably did not cause the rendition of an improper judgment, it was not reversible error.
The Whites contend that the court erred in refusing to grant their request to submit to the jury the following instruction:
If there is evidence when the accident occurred that there was joint control of the bus driver by Liberty-Eylau Independent School District and the Bowie County Transportation Department, then you may find that the bus driver is an employee of both.
This was one of three sentences in Brantley's requested instructions addressing the issue of dual employment. The court included in the charge the first two requested sentences on this issue, as set out above, but it refused to submit the third sentence, holding that it was duplicative of the other two. Since these other instructions, which were submitted to the jury at Brantley's request, commented directly and substantially on the issue of dual employment, the trial court did not abuse its discretion in failing to include the additional sentence.
The Whites maintain that the court also erred in refusing the following requested instruction:
Although state funds from which drivers are paid are sent directly to the transportation department, if you find the school district has assigned its right to the funds to the department, you may find that Liberty Eylau paid the salary of the bus drivers transporting its students.
The Whites emphasize that the language of this requested instruction is essentially a restatement of a point made in this court's prior opinion reversing the summary judgment initially granted in this case. White, 880 S.W.2d at 160. While it may be true that the instruction is a correct statement of the law, the trial court is not required to give an instruction merely because it states correct legal principles. Paschall, 813 S.W.2d at 713-14; Blakely, 773 S.W.2d at 599. The trial court could have determined the issue addressed by the instruction to be an evidentiary and not an ultimate issue in the case. Its refusal of the instruction thus was not an abuse of discretion.[1]
The Whites contend that the evidence establishes as a matter of law that Brantley was an employee of the school district at the time of the accident. The Whites preserved this legal insufficiency point of error by moving for a directed verdict on this issue. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991). They also contend that the jury's finding that Brantley was not an employee of the school district is against the great weight and preponderance of the evidence, a factual insufficiency point.
In reviewing an appellant's claim that the evidence is legally insufficient, we examine the record for any evidence that supports the finding, and overrule the point of error if any such evidence exists. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). By contrast, in reviewing a claim that the evidence is factually insufficient, we examine the entire record to determine if the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The fact that a point of error challenges a jury's failure to find, rather than a finding, does not *814 alter either of these standards of review. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 649-51 (Tex.1988).
The Texas Tort Claims Act makes a governmental unit liable for personal injuries caused by the wrongful act or omission or negligence of an employee acting within the scope of his employment. TEX. CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986). The act defines "employee" as:
[A] person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.001(1). A person may be the servant of two employers at one time as to one act if the service to one does not involve an abandonment of the service to the other. Restatement (Second) of Agency § 226 (1958). To be an employee, a person must be under the control and direction of the alleged employer. White, 880 S.W.2d at 159.
The jury answered "no" to the following question: "On the occasion in question, was Dorothy Brantley acting as an employee of Liberty-Eylau Independent School District?" The evidence showed that Liberty Eylau Independent School District joined with twelve other school districts to create the Bowie County Schools Transportation Department. The transportation department's board of directors consists of the superintendents of each of the participating school districts. The state of Texas appropriates funds to all school districts for student transportation purposes according to a formula which takes into account the number of students in the district and the mileage of the bus routes. The thirteen districts that participate in the Bowie County Schools Transportation Department combine their state appropriations to fund the department's services.
Paul Huddleston, director of special services for the school district at the time of the accident, testified that he was a paid employee of the school district and was not an employee of the transportation department. Huddleston testified that in some respects he handled the day-to-day supervision of the buses used by the school district. He testified that when drivers could not report for work, they would call him, and he would assign a replacement from the substitute list. He testified that the substitute list was prepared by him and approved by Jim Norman, director of transportation for the transportation department. Huddleston testified that he interviewed all applicants for bus driver positions and then made recommendations for hiring to Norman. He also testified that, when necessary, he made recommendations to Norman for discharge of drivers and that his recommendations concerning hiring and firing were usually followed. Huddleston testified that teachers with the school district were encouraged to become school bus drivers if they wished. He testified that Norman was in charge of disciplining employees for their performance as drivers.
Huddleston further testified that he attended each board meeting of the Bowie County Schools Transportation Department. He testified that he was partially involved in setting the bus routes and, when necessary, made recommendations for route adjustments. He also testified that, when not in operation, the buses used by the school district were either parked at the school or taken home by their drivers. He testified that the buses were routinely fueled by a person under his supervision, at a gas pump located on Liberty Eylau school premises. He testified that this person was paid in part by the school district, but mostly by the transportation department. Finally, Huddleston testified that the school district used two kinds of buses. For regular school routes, it used buses owned by the transportation department, but for extracurricular activities, it primarily used other buses, which were owned by the school district. The same drivers would often drive for both regular school routes and for extracurricular trips, but for regular routes, the drivers were paid by the transportation department, while for extracurricular activities, they were paid separately and directly by the school district. *815 He testified that the accident in this case occurred on a regular route.
Norman testified that he currently serves as the transportation director of the Bowie County Schools Transportation Department and that he did so at the time of the accident. He testified that he controls the day-to-day operations of the regular bus routes in the participating school districts. He testified that he receives recommendations from the school districts for the hiring of drivers, but makes the final decisions himself. He testified that the transportation department board, composed of the superintendents of each participating district, does not involve itself in day-to-day operating details, but instead primarily sets broad policy for the department, leaving routine management tasks to his care. He testified that all changes in bus routes must be presented to him and that he provides each district with a list of approved substitute drivers.
Norman further testified that the transportation department's office is separate from the offices of any participating school district. He testified that the bus drivers on the regular routes are paid by the transportation department and that the department withholds taxes and conducts medical examinations and pre-employment driving and criminal record checks for each of its employees. Finally, Norman testified that he, not Paul Huddleston, was the immediate supervisor of the person who routinely fueled the school district's buses at the time of the accident.
In light of the contrasting testimony present in the record, the jury could reasonably have concluded that Brantley was not under the control and direction of the school district while driving her regular bus route. The jury's failure to find that Brantley was an employee of the school district at the time of the accident therefore was not so against the great weight and preponderance of the evidence as to be manifestly unjust.
We hold that although the trial court erred in submitting the jury instruction concerning dual office-holding under an interlocal contract, this was not reversible error. We overrule all other points of error and affirm the judgment of the trial court.
GRANT, Justice, dissenting.
I believe that the erroneous jury instruction made a confusing issue more confusing to the jury. I would hold that this instruction was harmful error.
NOTES
[1] The Whites also challenge the following instruction given as part of the court's charge:
When words are used in this charge in a sense which varies from the meaning which is commonly understood, you are given a proper legal definition which you are bound to accept in place of any other definition or meaning. In other words, where a term is defined, you are bound by that definition. If it's not defined, then that term has its commonly-understood meaning.
This instruction was not a misstatement of the applicable law, and the court therefore did not err in giving it. See Green Tree Acceptance, Inc. v. Combs, 745 S.W.2d 87, 89 (Tex.App.San Antonio 1988, writ denied). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431471/ | 920 S.W.2d 512 (1995)
James C. SAVAGE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 94-SC-752-MR.
Supreme Court of Kentucky.
October 19, 1995.
Rehearing Denied May 23, 1996.
Bruce P. Hackett, Deputy Appellate Defender of the Jefferson District Public Defender, Louisville (Daniel T. Goyette, Jefferson District Public Defender, of counsel), for Appellant.
Chris Gorman, Attorney General, Perry T. Ryan, Assistant Attorney General, Frankfort, for Appellee.
FUQUA, Justice.
Appellant was convicted in the Jefferson Circuit Court of robbery in the first degree and was sentenced to twenty years' imprisonment. Appellant now appeals to this Court as a matter of right.
Around midnight on the morning of February 8, 1994, the Dairy Mart on Berry Boulevard in Louisville was robbed by a short white man with brown hair and a mustache who was wearing a brown or dark tan jacket, dark pants, and dark shoes. The man, whose face was partially visible through the two-inch slits cut into the plastic grocery bag he was wearing over his head, brandished a twelve-inch knife and forced the two clerks to open the safe where the night's revenue had been placed. The robber made off with $2,000 to $3,000, dropping some of the rubber-banded stacks of cash and food stamps in the store and in the parking lot. The clerks observed the robber go into an apartment complex across the street. The police were notified and arrived shortly thereafter.
*513 On the way to the scene, a police officer observed the appellant, fitting the physical description of the robber, leave the apartment complex across the street from the store. The appellant approached the officer's car and asked, "What's going on, sir?" Believing the appellant might be the robber, even though he was wearing different clothes, the officer had the appellant place his hands on the car. During a pat-down search, the officer felt a hard object, discovered to be a cigarette lighter, and a large "wad" of cash. The stack of cash contained $842 and $122 in food stamps. The appellant was brought to the Dairy Mart and each of the clerks separately identified the appellant as the man who robbed the store. One of the clerks identified marks on some of the stacks of cash she had made when she bundled the cash. The appellant was charged with and convicted of first-degree robbery and now appeals his conviction and subsequent twenty-year sentence.
The appellant advances two arguments on appeal. The first is that the trial court erred when it refused the defense request to instruct the jury on the lesser-included offense of receiving stolen property under $300. The second is that the trial court erred when it refused to suppress the in-court and out-of-court identification of the appellant by the robbery victims.
The first argument can be found meritless by simple mathematics. Of the $842 in cash and $122 in food stamps, the appellant claims $200 from one sister, $100 from an aunt, and $35 from another sister were all loans for the appellant to purchase a car. This accounts for only $335 of the $842, leaving $507 unaccounted for. The $122 in food stamps was claimed to be winnings from a dice game. The appellant cannot therefore claim that a reasonable juror could have concluded that he received stolen property valued at less than $300, as the $507, some of it in marked stacks, exceeds the amount required for a felony conviction under KRS 514.110. The trial court was correct in refusing to give an instruction on this lesser-included offense.
An instruction on a lesser included offense should not be given unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser included offense.
Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78 (1977). See Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 298 (1993). The appellant has failed to present any evidence that could support a reasonable juror finding that he was in possession of less than $300 in stolen money. The decision of the trial court not to grant such an instruction was appropriate. The trial court did, however, give an instruction for the felony offense of receiving stolen property over $300.
The appellant's second argument on appeal is that the trial court erred by allowing the in-court and out-of-court identification by the store clerks. There was a pretrial suppression hearing on the admissibility of the out-of-court identification. This "identification" occurred minutes after the robbery and consisted of an officer standing with the appellant in the parking lot while each clerk separately identified the appellant as having similar characteristics to those of the robber. The court expressly ruled that neither of the clerks actually made an identification, but observed that there were shared characteristics between the appellant and the robber. Such a "show-up" identification may be unreliable and suspect, but such show-ups are nonetheless necessary in some instances because they occur immediately after the commission of the crime and aid the police in either establishing probable cause or clearing a possible suspect, and the police do not need to delay the process in order to allow the suspect to have counsel present. Stidham v. Commonwealth, Ky., 444 S.W.2d 110, 111-112 (1969). As the show-up procedure is suggestive by its nature, the court "must then assess the possibility that the witness would make an irreparable misidentification, based upon the totality of the circumstances and in light of the five factors enumerated in [Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972)]." Wilson v. Commonwealth, Ky., 695 S.W.2d 854, 857 (1985). The five Biggers factors were met, and will be discussed in turn.
The first Biggers factor in the "totality of the circumstances" test is the opportunity to *514 view. The lights in the store were on, and even though the robber was wearing a bag over his head, his face was not entirely obscured. His stature, mustache, and hair color were all observable. The second factor is the witnesses' degree of attention. During the robbery, both clerks were able to view the robber for varying lengths of time and gave similar descriptions of the perpetrator. The third factor is the accuracy of prior descriptions. Before the show-up, the clerks provided the police with a description of the robber that later proved to match the appellant short, Caucasian, mustache, brown hair, no glasses. The fourth factor is the level of certainty at confrontation. The clerks based their identification on the physical factors mentioned above which were readily observable with or without the bag mask. In overruling the motion to suppress, the court pointed out that the clerks in the show-up had not made an identification but had simply said that the robber and the appellant shared characteristics. The fifth factor is time between the crime and the confrontation. The time period between the robbery and the show-up was less than thirty minutes.
By analyzing the five Biggers factors, the totality of circumstances indicate that the appellant's due process rights were not violated. The in-trial identification was reliable, even though the pretrial identification may or may not have been suggestive, as shown by the same five Biggers factors discussed above. See Jones v. Commonwealth, Ky. App., 556 S.W.2d 918, 921 (1977). The admission of such evidence did not violate the appellant's due process rights. Furthermore, the in-court identification by the clerks of the stolen money found on the person of the appellant at the time of arrest provided evidence for the jury to consider whether the appellant was the robber.
For the foregoing reasons, the decision of the Jefferson Circuit Court is hereby affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431754/ | 575 S.W.2d 659 (1978)
Clairece WOOLEY et vir., Appellant,
v.
Dr. Raymond J. WEST and Orthopedic Associates, Appellees.
No. 18035.
Court of Civil Appeals of Texas, Fort Worth.
December 21, 1978.
Rehearing Denied January 25, 1979.
Wilson, Berry, Jorgenson & Fuqua, Ken W. Fuqua, Dallas, for appellant.
Simon, Pebbles, Haskell, Gardner & Betty and Richard U. Simon, Jr. and Anne Gardner, Fort Worth, for appellees.
*660 OPINION
SPURLOCK, Justice.
Medical malpractice case. Patient sued her orthopedic surgeon for damages from alleged negligence in performing a laminectomy. The jury in its answers to special issues failed to find negligence or damages. Therefore error, if any, in the court's judgment is harmless since Mrs. Wooley complains only about the lack of liability findings in her favor.
Affirmed.
Dr. Raymond West performed back surgery on Clairece Wooley to remove a ruptured disc and to fuse the spinal column at the L-5 level. Complications arose during the procedure, including excessive bleeding and the loss of a portion of a cottonoid sponge. Dr. West searched for the missing piece of sponge for approximately one and one-half hours but abandoned his search on the advice of the anesthesiologist that to continue would endanger Mrs. Wooley's life.
Shortly after surgery, Mrs. Wooley developed partial loss of bladder and bowel control. The loss has since improved somewhat with time. She also developed what is commonly known as a "foot drop". She is unable to elevate her right foot. This means her foot drags when she attempts to walk and she is unable to do so without the assistance of some device. This condition has been diagnosed as permanent. She also complained of severe back pain.
A second operation was performed on Mrs. Wooley's back by Dr. Marvin Overton. He removed the piece of cottonoid lost in the first procedure. He discovered bone chips in the dura and that the L-5 nerve had been almost completely severed. Dr. West admitted unintentionally nicking the dura during the laminectomy. However, he stated he did not believe he severed the L-5 nerve but could not be certain he did not.
The trial court submitted the case to the jury on special issues. By their answers the jury failed to find Dr. West negligent in failing to retrieve the piece of cottonoid, in performing the fusion after the cottonoid was lost, or in opening the dura. They found that he had allowed bone chips to enter the dura and that he partially severed the L-5 nerve but failed to find either was negligence. Special issues 9-12 asked what amounts of money from a preponderance of the evidence would reasonably compensate Mrs. Wooley for her injuries. The jury's answer to each damage issue was "$0", therefore they found no damages.
On appeal Mrs. Wooley asserts seven points of error. They are as follows:
"I. The trial court erred in its instructions on Dr. West's duty, for the reason that said instruction was an impermissible comment on the weight of the evidence.
"II. The trial court erred in refusing to instruct the jury on res ipsa loquitur.
"III. The trial court erred in excluding testimony on the `conspiracy of silence.'
"IV. The trial court erred in refusing to declare Dr. Marvin Overton a hostile witness.
"V. The trial court erred in refusing to submit to the jury an issue on Dr. West's failure to obtain a consulting opinion.
"VI. The trial court erred in refusing plaintiffs' trial amendment on Dr. West's failure to obtain a consulting opinion.
"VII. The jury's answer to special issue no. 7 is against the great weight and preponderance of the evidence."
After carefully analyzing each point, we conclude that none of them in any manner attacks the findings of no damages. Instead, each point presents a complaint relating to liability or evidence thereof. Where there is no point on the jury's finding of no damages, error, if any, on liability issues is harmless. Lewis v. Isthmian Lines, Inc., 425 S.W.2d 893 (Tex.Civ.App.Houston [14th Dist.] 1968, no writ). Mitchell v. Chaparral Chrysler-Plymouth, 572 S.W.2d 359 (Tex.Civ.App.Fort Worth 1978, writ application pending).
Since we have concluded that all of Mrs. Wooley's points of error relate to liability, and she failed to raise a point on damages, we need not consider any of her points. However, we have, nevertheless, severally *661 considered each point of error presented in complaint of the judgment and each is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431582/ | 734 S.W.2d 467 (1987)
COMMONWEALTH of Kentucky, Appellant,
v.
Joe E. HAYES, Appellee.
Supreme Court of Kentucky.
July 2, 1987.
Rehearing Denied September 3, 1987.
*469 David L. Armstrong, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellant.
Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellee.
LEIBSON, Justice.
This case reads like a plot to a comedy of errors by Shakespeare. It presents a series of extraordinary procedural blunders which will unfold during the course of this opinion, revealed not by the record on appeal, but by review of events that have transpired since the judgment. The mystery could only be unraveled by review of the record compiled in the Circuit Court after sentencing occurred.
The appellee, Joe E. Hayes, was convicted of trafficking in a controlled substance (dilaudid), for which he was sentenced to a $10,000 fine, no imprisonment. Further, he was convicted as a second-degree persistent felony offender, for which the jury recommended a fifteen year sentence, which the trial court did not impose, no doubt because the persistent felony offender statute, KRS 532.080(1), does not authorize an enhanced sentence of imprisonment as a persistent felony offender when there has been no sentence of imprisonment assessed for the underlying offense. Subsequently, the Court of Appeals ordered that the trial court should dismiss the persistent felony offender charge, and this order has not been challenged in the present motion for discretionary review.
However, the Court of Appeals also ordered dismissal of the final judgment imposing the $10,000 fine assessed for the underlying offense. We have accepted discretionary review of this portion of the Court of Appeals' decision, and reverse.
The premise for the appellee's attack on the portion of the judgment imposing the fine is that the appellee is entitled to relief from the obligation to pay because subsequent to the entry of judgment he was returned to federal prison in Indiana to serve out the remainder of a term of imprisonment which had previously been imposed upon him by a U.S. District Court for an unrelated federal offense. Hayes had been brought to Kentucky from this federal prison to stand trial for the present offense.
The bottom line on this appeal is that the appellee does not complain of trial error, or of any error as such related to his sentencing for the crime for which he stands convicted; instead, on direct appeal from the judgment, Hayes seeks to be relieved of the obligation to pay the fine thereby imposed on grounds of allegedly irregular post-sentencing incarceration procedures.
We could cut this Gordian knot simply by pointing out that a direct appeal is limited to trial and sentencing errors in the record, and does not encompass relief generated from subsequent events which may render the judgment unenforceable. The appellee has been granted relief on grounds which were not part of the direct appeal. If the appellee were entitled to relief from enforcement of the judgment because of what happened subsequently, and this is not to suggest that he was, his pathway would have been by writ of habeas corpus or by proceeding under Rule 60.02. This rule provides in pertinent part that in a proper case a court may relieve a party from its final judgment upon grounds that the judgment "has been satisfied, released or discharged."
Both the writ of habeas corpus and the CR 60.02 procedure contemplate a hearing, the taking of evidence to prove the post-judgment circumstances that justify relief, and an appeal on the record from that hearing. The claim was made at oral argument in the present case that this process should be shortcircuited in the interest of "judicial economy." This is nonsense. There must first be a record justifying relief before it can be granted. There is none here.
On Discretionary Review the facts before us are that a judgment of conviction and a sentence to pay a fine have been set aside for reasons which could not even be considered on this appeal. The various cases relied upon by the appellee and utilized by the Court of Appeals in reaching *470 its decision involve either CR 60.02 relief or writ of habeas corpus, not direct appeal. Balsley v. Commonwealth, Ky. 428 S.W.2d 614 (1968), Davis v. Harris, Ky., 355 S.W.2d 147 (1962), and Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962). For reasons that we will subsequently discuss, these cases would be distinguishable from the present case even if the appellee had followed the correct procedure. But, it is not a correct procedure, and the Court of Appeals erred in granting relief on grounds unrelated to the direct appeal.
Our obligation to provide a reasoned opinion requires us to go further than simply cutting through to the bottom line. Therefore, we will undertake to further unravel the procedural knots in this case, one loop at a time.
In addition to imposing a $10,000 fine, as recommended by the jury, for the offense of trafficking in a controlled substance, the final judgment further ordered that the sentence thus imposed "is to run consecutively with the sentence of 5 years imposed on defendant by judgment of the Jefferson Circuit Court pursuant to indictment # 83CR1435 & US District Court (Western District of Kentucky) Under indictment # 8300126-01-L." The judgment then ordered the Sheriff to "deliver the defendant to the custody of the Department of Corrections. . . to resume serving his sentence under" these two previous unrelated convictions. From this point on, the record on direct appeal is silent, and we must go elsewhere for subsequent events.
Shortly after being lodged with the Kentucky Department of Corrections, Hayes was returned to federal prison where he remained until May 2, 1986, whereupon he was returned to Kentucky prison authorities. About the time Hayes was returned to federal authorities the trial court signed a document styled "Detainer Warrant" presumably delivered to federal authorities, stating that:
"Due to the fact that the fine of $10,000 was imposed, we need the defendant to return to Jefferson Corrections Department at which time he is released from your Institution."
This document was and is a nullity. There is no authority, statutory or otherwise, for such a document. There is authority, KRS 440.330, for the Governor to release a prisoner to another state for trial, conditioning such release upon his return to the custody of this State "immediately after trial in the demanding state, or the completion of sentence therein, as the case may be." Id. This statute "entrusts to the Governor alone the surrender of persons under state custody to the authorities of other jurisdictions." Thomas v. Schumaker, Ky., 360 S.W.2d 215, 216 (1962). The cases cited in the Court of Appeals' opinion, Balsley, Thomas and Davis, supra, stand for the proposition that an unauthorized release to a foreign jurisdiction, that is, the transfer of custody without statutory authority, constitutes "arbitrary treatment barring further enforcement of the sentence under which the prisoner was being held by this state at the time of the transfer." Balsley, supra at 616.
None of this is connected to the facts of the present case. In the present case the sentence imposed a fine, not imprisonment, and Hayes was not serving time for this offense when he was transferred back to federal prison. He was, as previously stated, returned to prison to continue serving time for previous unrelated offenses. Hayes had not been adjudicated in default of payment of the fine. Indeed, he could not, and cannot be, imprisoned for nonpayment of the fine until after compliance with the "show cause" procedure set out in KRS 534.060.
Thus Hayes' release to federal authorities, whether authorized or unauthorized, has no possible bearing on the sentence to a fine imposed in this case. It may well be that such release was authorized without a detainer warrant from the Governor because Kentucky was the "receiving state" not the "sending state" in the extradition proceeding that took place when Hayes was brought back from federal prison to circuit court to stand trial for the present offense. See KRS 440.450, the "Interstate Agreement on Detainers." Under this statute Hayes had a right to be *471 tried within 120 days of arrival in this state, and Kentucky was then obligated to return him to federal prison. However, in any event, the threshold factor before a prisoner can question an obligation to serve out the remainder of a sentence is proof that he has commenced serving out that sentence and his service has then been interrupted in an unauthorized manner. None of this relates to payment of the fine in this case. Indeed, there has not as yet been any effort to enforce payment of the fine against him.
The Commonwealth complains in our Court, with ample justification, that the issue used by the Court of Appeals to decide the case was never raised in the trial court. The issue raised in the trial court was whether the provisions of the Interstate Agreement on Detainers (KRS 440.450) had been complied with when the appellee was returned from federal prison to Kentucky to stand trial. This claim was properly overruled in the trial court, and abandoned on appeal. The issue subsequently argued successfully in the Court of Appeals, was post conviction compliance with KRS 440.330. It was not an issue, never was, and never could have been included in the issues litigated in the trial court and subject to appeal.
But this comedy of errors does not stop here. We have examined the post-appeal record which is still in the possession of the Jefferson Circuit Court. Twelve days following rendition of the Court of Appeals' opinion, while its decision was still subject of further appellate review, presumably in response to that opinion, the trial court entered an order purporting to dismiss "the $10,000 fine and enhanced conviction." This order was, of course, in violation of the general rule that the trial court loses jurisdiction over matters that have been appealed until the finality date of the appellate decision. Johnson Bonding Co. v. Ashcraft, Ky., 483 S.W.2d 118 (1972); Hertel v. Edwards, 201 Ky. 456, 257 S.W. 36 (1924).
Appellee's counsel has referred us to Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979) and Johnson v. Commonwealth, Ky., 609 S.W.2d 360 (1980), which hold that the Commonwealth, including a trial judge, is bound to carry out an agreement that it makes with a defendant regarding the manner of his trial. Counsel urges this principle as authority to support the trial court's unauthorized post-judgment order of dismissal. This order was not an agreement, nor was it entered pursuant to any type of agreement of record. Even were we to assume otherwise, until such time as finality attaches to this appeal, any such action was beyond the authority of the circuit court.
The circuit court record indicates that the Commonwealth had a pending motion, which has never been acted upon, for a hearing to determine guidelines for payment of the fine. It may be that this motion generated confusion over whether the fine was still viable. Further, the record suggests that the Attorney General's office and the Commonwealth Attorney's office in Jefferson County may well have shared in the confusion. At least it appears that there was little, if any, effort made by the prosecutorial authorities to resist when the trial court was urged to dismiss this conviction. Nevertheless, the trial court had no jurisdiction over the final disposition of this case at the time when the order of dismissal was entered, so its order of dismissal was a nullity. Therefore, our decision to reverse the Court of Appeals and to affirm so much of the judgment of the trial court as convicts Hayes of the offense of trafficking in a controlled substance and sentences Hayes to pay a fine of $10,000 is not moot. That portion of the judgment is still viable.
That portion of the judgment appealed from convicting the appellee of trafficking in a controlled substance and sentencing him to a fine of $10,000 is affirmed. The decision of the Court of Appeals to the contrary is reversed. The within action is remanded to the circuit court for further proceedings consistent with this opinion.
STEPHENS, C.J., and GANT, LAMBERT and LEIBSON, JJ., concur.
*472 STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur in results only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431734/ | 575 S.W.2d 904 (1978)
STATE of Missouri at the relation of William A. SCHNEIDER, Individually and on behalf of himself and all other qualified voters of the City of Town and Country, Missouri and City of Town and Country, Missouri, a Municipal Corporation, Relators-Appellants,
v.
Robert G. STEWART, Acting Supervisor of Liquor Control of the State of Missouri, Respondent, and
Malvern, Inc., a Missouri Corporation, Intervenor-Respondent.
No. KCD 29932.
Missouri Court of Appeals, Kansas City District.
December 27, 1978.
*907 Edward W. Sumner, Jr., Sumner, Hanlon, Sumner, Macdonald & Nouss, P. C., John J. Inkley, Jr., John E. Hilton, Clayton, for relators-appellants.
John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
Merle L. Silverstein, Steven J. Stogel, Richard S. Bender, Rosenblum, Goldenhersh, Silverstein & Zafft, St. Louis, for intervenor-respondent.
Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
SHANGLER, Presiding Judge.
The relators Schneider and City of Town and Country brought their common law writ of certiorari to contest the jurisdiction of respondent Acting Supervisor of Liquor Control Stewart to issue restaurant-bar licenses for the sale of liquor by the drink to Malvern, Inc. as a Resort under § 311.095. The writ issued and the respondent Stewart certified to the circuit court the records upon which the licenses issued. The respondent Stewart then moved to dismiss the proceedings for want of status by relators to challenge issuance of the licenses. The motion was taken under advisement and then rendered moot in the circuit court by the determination of the writ of certiorari on the merits. The grant of licenses to Malvern thus continues in effect. In the course of proceedings, Malvern sought and was granted intervention as a party and now responds to the appeal of relators Schneider and City.
On appeal the relators contend that the record before the Supervisor, as a matter of law, failed to prove that Malvern was a Resort within any of the definitions of § 311.095, RSMo Supp.1975,[1] and that the *908 determination by the court under the writ that the grant of licenses by the Supervisor was not unlawful, arbitrary or capricious or an abuse of discretion was error. If we assume that traditional certiorari was open to and employed by the relators,[2] we conclude nevertheless, that they were without interest to assert or, on objection, to continue the action. We determine also that, as to relator Schneider, the remedy by § 536.150 of the Administrative Procedure and Review Act precludes access to common law certiorari [LaFayette Federal Savings & Loan v. Koontz, 516 S.W.2d 502, 504[1-3] (Mo.App.1974)] which does not issue in the presence of other adequate remedy. State ex rel. Iba v. Mosman, supra, 133 S.W. l.c. 41; 14 Am.Jur.2d § 16, Certiorari.
The petition for common law writ of certiorari was brought in three counts: Count I by Schneider as an individual and as owner of property within the City; Count II by Schneider on personal behalf and for the benefit of all other qualified voters of the City; Count III by the City of Town and Country to quell a public nuisance from the unlawful sale of liquor within the municipality. The purport of Count II is that of a class action but the proceedings went to judgment without attempt by relator Schneider to prove the requirements of Rule 52.08(a) for a class action or by entry of order that the additional requirements of Rule 52.08(b) were met and that the action, thus, was maintainable. We deem Count II abandoned. State ex rel. Niess v. Junkins, 572 S.W.2d 468 (Mo.banc 1978).
The respondents Supervisor and Malvern iterate on appeal the substance of their motion to dismiss before the circuit court, that neither relator Schneider nor the City has sufficient interest in the grant of Resort licenses to accord status for judicial review of that agency decision. The relators contend that on principles of common law pleading to certiorari, as well as provisions of the Rules of Civil Procedure, a respondent who makes return to the command of the writ without complaint of want of capacity to sue makes appearance to the action on the merits and waives all *909 attendant irregularity. State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631 (1925). The practice at common law [which persists] requires a respondent summoned by certiorari either to make return as mandated or to move quashal of the writ before return. That derives from the function of the motion to dismiss as a demurrer which confesses all facts well pleaded and searches the record to determine whether the petitioner is entitled to the relief of the writ. State ex rel. Modern Finance Company v. Bledsoe, 426 S.W.2d 737, 740[5-8] (Mo.App. 1968). We need not confront the continued validity of such a common law form in the presence of a code of Rules of Procedure promulgated to secure "the just, speedy and inexpensive determination of every action" [Rule 41.03] because, whether intended as a pristine common law action [as the pleadings and arguments of the relators suggest] or as a method for judicial review of an administrative determination under § 536.150 [as the judgment of the court and arguments of respondents suggest], the matter of standing does not relate to legal capacity to sue, a defense waived unless timely asserted [Rule 55.27(a)], but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief. It is a matter, in a sense, jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal. Briss v. Consolidated Cabs, 295 S.W.2d 391, 392[1, 2] (Mo.App. 1956).
The want of adversary interest in the subject matter in suit operates to deny status for judicial relief, not only against judicial action, but against administrative action as well. 2 Am.Jur.2d, Administrative Law, § 575. The question as to whether a particular person has status to contest the administrative action becomes one of law and depends upon an amalgram of considerations: the nature and extent of the interest of the person who asserts status, the character of the administrative action, the terms of statute which enable the agency action, among them. The determination, ultimately, rests on policy as well as law so that which consideration among the several shall predominate to allow or deny status for judicial review depends upon the discerned legislative values. State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669, 676[12-17] (banc 1956); Bank of Belton v. State Banking Board, 554 S.W.2d 451, 453[1], 456[4] (Mo.App.1977); In re St. Joseph Lead Company, 352 S.W.2d 656, 659[3] (Mo.1962).
The relator Schneider contends for status for judicial review by common law certiorari of the grants of Resort liquor licenses to Malvern. We have expressed conclusion that the proper remedy for that noncontested agency action was by the review provisions of § 536.150 of the Administrative Procedure and Review Act. We discuss the liminal question of status for judicial review because, whether by the method of statutory certiorari or the common law writ, the interest requisite for access to a court of review was in either case the same, and in either case absent.
The Liquor Control Law [Chapter 311, RSMo1969] vests the Supervisor with exclusive authority to determine whether an applicant for a license for sale of liquor at retail meets the qualifications of the statute. Section 311.210; State ex rel. Floyd v. Philpot, 364 Mo. 735, 266 S.W.2d 704, 710[4, 5] (banc 1956). The review provisions of that enactment [§ 311.700] accord to "[a]ny party" aggrieved by the final decision of the Supervisor judicial review to the circuit court. It is clear that the method of review delineated by § 311.700 is the only remedy available to a licensee for review of the agency decision and precludes access to § 536.150 or any other provision of the Administrative Procedure and Review Act. Brogoto v. Wiggins, 458 S.W.2d 317, 318[2, 3] (Mo.1970). It does not follow, however, as respondents contend, that a person not a party to the application for license, but otherwise aggrieved by the final order of the Supervisor, has no recourse to the courts for infringement of right.
The requirement of Article V, § 22 of the Constitution of Missouri for direct review by the courts of final orders of an *910 administrative agency[3] is made to depend upon whether the decision affects a private right, and not a private right of a party. The Administrative Procedure and Review Act, which furthers the constitutional purpose, accords review to "any person . . aggrieved by a final decision in a contested case" [§ 536.100[4], emphasis added]whether or not a party to the administrative proceedings [State ex rel. Pruitt-Igoe District Community Corp. v. Burks, 482 S.W.2d 75, 77[1] (Mo.App.1972); In re St. Joseph Lead Company, supra, l.c. 655] and for the review of a noncontested case [§ 536.150] also speaks in terms of any person, not party. These sections derive from the same constitutional authority and give effect to the single desideratum that all final administrative decisions which affect private rights shall be subject to direct review by the courts. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 357 (Mo.banc 1958).
Questions remain whether relator Schneider has the nominal and substantive interests [cognate, in this consideration] to assert common law certiorari to review the grant of liquor licenses by the Supervisor to a third party. A stranger to the record subject to review by certiorari, although not a party in form, may have the writ if he was a party in substance. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, 272[1, 2] (Mo.banc 1948). The status of a relator for certiorari not a party to the original proceedings, therefore, depends upon an interest in the subject matter sought for review. A party in substance is one who has suffered injury to a substantial interest from a judicial determinationand, it is clear, the license function of the Supervisor of Liquor Control involves exercise of judicial discretion. State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 207 S.W.2d 49, 53[4-11] (1947).
The relator pleads only that the licenses to Malvern authorized by the Supervisor "ha[ve] caused said relator's residence to become depreciated in value and said relator has thereby sustained damage by such unauthorized action." That contention of injurywhich rests on no proof other than the assertionis not sufficient to constitute Schneider a party in substance to the license proceedings. The question is one of aggrievement, whether the administrative decision adversely affects an interest the law protects. Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054, 1058[4]. The interest may be less than a legal wrong done, but the administrative decision must act directly on an interest of the person who claims status for review distinct from the effect on the general public. Stickelber v. Board of Zoning Adjustment, 442 S.W.2d 134, 137[2] (Mo.App.1969); Cooper, State Administrative Law, supra, pp. 535 et seq.
These principles, valid in the statement, are subject to variant considerations of policy, statute, administrative action, among others, which accord status for judicial review in one set of circumstances and withholds status in another. State ex rel. Rouveyrol v. Donnelly, supra, 285 S.W.2d l.c. *911 676[12-17]. The provision of Article V, § 22 that all final decisions of any administrative officer which are judicial or quasi-judicial and affect private rights shall be subject to direct review of the courts and the enactment of the Administrative Procedure Act to that purpose for any person aggrieved manifest a fundamental policy to facilitate status for judicial review for injury from agency action. In re St. Joseph Lead Company, supra, l.c. 659[3-5]. These enablements, however are subject to the method of review provided by law [Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (banc 1946); § 536.100] which frequently delimit the class of persons entitled to judicial review and so incidentally define the substance of the interest protected.
A licensee under the Liquor Control Law has only those legal rights granted by the licenseincluding review by the method of § 311.700 for a party to the proceedings aggrieved by a final order of the Supervisor.[5] That remedy for review is mandatory and excludes access by an applicant-licensee to the Administrative Procedure and Review Act. Brogoto v. Wiggins, supra, l.c. 318. The restrictive procedure which confines a party to review by § 311.700 is an expression of the public policy which places the liquor traffic under the ban of the police power because of the threat to the public morals the occupation poses. State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453, 461[3] (banc 1911); Pinzino v. Supervisor of Liquor Control, 334 S.W.2d 20, 27[6-8] (Mo.1960). It is, for these reasons, an enterprise set apart from others and subject to a comprehensive and strict code of regulation. Sections 311.010-311.880; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809, 812[2, 3] (banc 1946). A person who qualifies may apply to the Supervisor for a license to sell liquor [§ 311.090] which the Supervisor may, without hearing, grant or deny at a reasonable discretion. Section 311.060; Kehr v. Garrett, 512 S.W.2d 186, 191[4-7] (Mo.App. 1974). This scheme entrusts to the Supervisor the protection of the public interest [State ex rel. Collins v. Keirnan, supra, 207 S.W.2d l.c. 53] and excludes from judicial review all but a party aggrieved by the license decision. Section 311.700.
A person not a party to the license proceedings does not come under the regulation of the Liquor Control Law and so stands differently for review. A person not a party, aggrieved by the agency action, is not precluded by § 311.700 from access to the Administrative Procedure and Review Act. The relator Schneider, therefore, was entitled to the judicial review of § 536.150 upon demonstrated record that the grant of the licenses to Malvern directly affected an interest in a manner personal and distinct from injury to the public. The pleadings and proof by certiorari do not establish such an interest. The contention that the residence of relator Schneider was depreciated in value by the unauthorized grant of licenses by the Supervisor pleads an interest not direct, but quite remote, and an injury [so we assume] shared by all within the City. There lacks even pleading of such rudimentary facts as the locale of Malvern in relationship to the Schneider residence or how the activity of the licensee bears especially on the relator and the use of that property. We do not suggest such proof sufficient for *912 the review status Schneider asserts, but only that the contention of interest for aggrievement is altogether speculative. In terms of the aggrievement requirement of the Administrative Procedure and Review Act, the relator was in the position of a member of the public without special interest to contest the authority of the Supervisor. In terms of common law certiorari, the relator was not a party in substance to the administrative proceedings and so without status for review by that writ. Cooper v. Hunt, 103 Mo.App. 9, 77 S.W. 483, 485 (1903).
There remains determination of Count III of the petition brought by the City of Town and Country as common law certiorari to contest the legality of the Supervisor grants of licenses to Malvern. The law has developed, perhaps anomalously, that the provisions of § 536.150 of the Administrative Procedure Act [Rule 100.08] for the judicial review of a noncontested case do not applyin the absence of express statutory authorityto accord status to a political subdivision of the state [in this case, a school district] to dispute an underassessment of real property by a county board of equalization. State ex rel. St. Francois County School District R-III v. Lalumondier, 518 S.W.2d 638 (Mo.1975). The court noticed that Article V, § 22 speaks of review of administrative decisions which affect private rights, but that the claim of the school board subdivision was a contention of public right which came neither within the constitutional definition of private right nor that of any person entitled to judicial review of a noncontested case under § 536.150. An apparent anomaly, however, allows a public body in interest status for judicial review of a contested case under §§ 536.100-536.140. In re St. Joseph Lead Company, supra. In that case a county was accorded status for judicial review of a State Tax Commission decision to reduce assessments on the rationale that the diminished revenue from the agency action would impair the public operations of the county should the administrative decision stand. The court reasoned [contradistinctively from Lalumondier] that the private rights of Article V, § 22 established a minimum standard of review and not a limitation on the legislative power to provide for the judicial review of public rights, so that the enactment of §§ 536.100-536.140 that any person aggrieved by agency decision in a contested case [without distinction between private and public right] has status for judicial review. In re St. Joseph Lead Company, supra, l.c. 659[3-5]. See Casenote, 40 M.L.R. 653 (1975).[6]
We apply the Lalumondier rule to deny status to the relator City for judicial review under § 536.150 of the noncontested Supervisor grants of licenses to Malvern and assume that the common law certiorari was the procedure open for review of these agency actions. We conclude, nevertheless, that the City was not a party in substance to the administrative proceedings and may not maintain the common law writ.
We acknowledge, as commentators suggest, that the special interest prerequisite to aggrievement, and so status for judicial review, subserves the notion of administrative finality whereby the actions of agencies, to whom the legislatures have confided the duty of government, shall be insulated from capricious attack. The rationale is expressed in F. Davis, Standing of a Public Official to Challenge Agency Decisions, supra, p. 165 (1964):
Whenever an administrative decision or ruling is formally challenged in the courts, both its authenticity and reliability are exposed to doubt, and the agency in question may be seriously hampered in the discharge of its business. When such challenges can be reduced by restricting the number and classes of persons who can make them, the administrative process enjoys greater freedom from harassment. *913 The imposition of a strict "standing" test to those who would seek to nullify or reverse administrative actions or decisions has the effect of limiting the number of persons who can petition for such relief. The requirement also reduces the number of quarters from which attacks may be launched. In this sense the "standing" requirement contributes to that stability of government and reliability of rulings which the doctrine of administrative finality was meant to advance.
The commentators agree that since administrative action affects the function of government as well as the affairs of persons, the public interest is best served by a procedure which allows a political unit or geographical subdivision of government[7] status to contest an agency decision which affects interests distinct from the body politic of the State at large. F. Davis, Standing of a Public Official to Challenge Agency Decisions, supra, pp. 173-4, 183-4; Cooper, State Administrative Law, supra, pp. 545 et seq.; K. Davis, Administrative Law Treatise, pp. 281 et seq. This is the sense of In re St. Joseph Lead Company, supra, and the intimation of Hertz Corp. v. State Tax Commission, 528 S.W.2d 952, 954[3] (Mo. banc 1975); see, also, Town of Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 96 A.2d 806, 808 (1953); Jersey City v. Hague, 18 N.J. 584, 115 A.2d 8 (1955).
Whether or not, in light of St. Joseph Lead Company, we must understand Lalumondier authoritatively to foreclose review by a subdivision of government from a noncontested order of an administrative body, remedy by traditional certiorari remains open to a party in substance to the decision.
The relator City contends for certiorari on assertions that the grant of licenses by the Supervisor was unlawful because Malvern was not a Resort within § 311.095 and so the sale of intoxicating drinks on those premises was a public nuisance subject to abatement within § 311.740 of the Liquor Control Law.
A city, to protect the health, safety and welfare of its citizens, has undoubted authority to quell a condition per se a public nuisance at the common law or declared so by statute. Campbell v. City of Frontenac, 527 S.W.2d 643, 645[3, 4] (Mo. App.1975); § 79.370, RSMo1969, Joyce on Nuisances § 379 (1910). In a case where premises are used in violation of the Liquor Control Law, § 311.750 expressly empowers a city to bring a action to enjoin the public nuisance. A proceeding to abate the unlawful manufacture or sale of intoxicating drinks under §§ 311.740 and 311.750, however, does not bring into issue the lawfulness of the administrative decision to grant a license, but that the premises operate without license altogether [State v. Keiter, 394 S.W.2d 399 (Mo.1965)] or with abuse of license. State ex rel. Davenport v. Henry, 270 S.W.2d 88 (Mo.App.1954). A license which issues under color of authority of the Supervisor for premises where the conduct of business poses no threat to the health, safety and welfare of the citizenry does not come under the ban of §§ 311.740 and 311.750. McQuillin, Municipal Corporations, §§ 24.179 et seq.
A liquor license regularly issued by the Supervisor is not subject to collateral impeachment. State ex rel. Collins v. Keirnan, supra, 207 S.W.2d l.c. 53[4-11]. The pleading of the City, although in the guise of common law certiorari to review the administrative decision to grant licenses to Malvern, asserts substantively the abatement of a nuisance by reason of noncompliance with § 311.095 of the Liquor Control Law. This amounts to a collateral attack on the license, a function not allowed certiorari, and a proceeding otherwise discountenanced by our law. State ex rel. Collins v. Keirnan, supra. We do not doubt that a *914 municipality has a unique interest, not shared by the populace of the state at large, to protect its citizens from dangers from the licentious use of premises for the manufacture or sale of intoxicating drinkssuch to accord aggrievement for certiorari or other direct review of the administrative decision to license[8]but the pleadings do not present such an interest. Nor, for that matter, do the pleadings assert facts of that certain threat of injury requisite for the injunction of a public nuisance under § 311.740, the statute the certiorari pleads.
Count III fails to plead a justiciable controversy between the City and the decision of the Supervisor. The authority of a court in a common law certiorari review of administrative grant of liquor license is either to quash the writ or to quash the decision of the Supervisor. State ex rel. Bruno v. Johnson, 270 S.W.2d 99, 103[5] (Mo.App.1954). In this case, the circuit court issued the writ, heard the merits, found against the relator, but entered no order of quashal of the writ. The general decision to deny relief on the writ was proper; neither relator Schneider nor relator City pleaded an interest as a party in substance to the administrative proceedings, and so had not status for the common law writ.
Accordingly, the proceedings are remanded to the circuit court with directions to quash the writ of certiorari on all counts and as to all parties, and as modified, the judgment is affirmed.
All concur.
NOTES
[1] To the extent relevant, § 311.095 provides:
"[R]esort means any establishment having at least forty rooms for the overnight accommodation of transient guests, having a restaurant or similar facility on the premises at least sixty percent of the gross income of which is derived from the sale of prepared meals or food, or means a restaurant provided with special space and accommodations where, in consideration of payment, food, without lodging, is habitually furnished to travelers and customers . . .." etc.
[2] The relators assert under a common law writ of certiorari. The writ issues to confine an inferior tribunal within the limits of a proper jurisdiction and to relieve a party from injury where there appears, as a matter of law from the record, that the inferior tribunal lacked, abused or was in excess of jurisdiction in the proceedings. State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 963 et seq. [11-18] (1940). The writ takes the record as it comes and does not take account of the evidence which relates to the merits only. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, 476[3] (banc 1912).
The Administrative Procedure and Review Act [Chapter 536], § 536.150 [present Rule 100.08], on the other hand, accords judicial review by original writ of certiorari of an administrative decision not subject to administrative review [noncontested cases] where the administrative decision determines the legal right, duty or privilege of any person. The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal [Iba v. Mosman, 231 Mo. 474, 133 S.W. 38, 41 (banc 1910); Neaf, supra, n.2, 139 S.W.2d l.c. 963], but allows for evidence and determinations of fact towards adjudication of whether the administrative decision "in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion." In short, § 536.150 constitutes the certiorari court with the function of an administrative tribunal in a contested case which hears evidence, makes a record and enters a decision on the facts found [State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182[1] (Mo.App.1974)]a role extraneous to the common law writ of certiorari. State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 73[10-12] (banc 1949).
The judgment of the circuit court rendered in the form:
"[T]he Court finds that there is nothing in the record to indicate that this action on the part of the Acting Supervisor of Liquor Control was unlawful, arbitrary or capricious . . [or] that he has in any way abused the discretion granted him by law"
suggests review under § 536.150 of the Administrative Procedure and Review Act [Chapter 536] rather than by traditional certiorari and miscegenates the two procedures.
[3] "All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law . . .." [This provision has been redesignated Article V, § 18 effective January 2, 1979].
[4] The headnote to § 536.100 prepared by the revisor of statutes reads: Party aggrieved entitled to judicial review. The catchword party does not suit the subject matter of that section which, as enacted, entitles any person aggrieved by a final administrative decision to judicial review. The headnote of a statute is a mere convention, an indicium of statutory content as perceived by the revisor. It imports no legislative authority and does not affect construction of the statute. Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97, 101[4-6] (Mo.App.1972).
The Missouri Administrative Procedure and Review Act derives from the model State Administrative Procedure Act which, in express terms accords and intends status for judicial review to any person aggrieved. Model State Administrative Procedure Act (1946) § 12(1); [Revised Model State Administrative Procedure Act (1961) § 15(a)]; Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, l.c. 804[8, 9] (Mo.); Davis, Standing of a Public Official to Challenge Agency Decisions, Ad.L.Rev., Vol. 16, p. 174 n.68 (1964); Cooper, State Administrative Law, p. 537 (1965).
[5] Other schemes for judicial review of agency action outside the Administrative Procedure and Review Act enlarge, rather than restrict, citizen access to the courts. For instance, an order by the Public Service Commission as to which telephone company competitor shall service an area may be reviewed under § 386.510 on the mere complaint of a customer or other local partisan interest even without proof of direct affect on any property right of the one who claims status for review. State ex rel. Summers v. Public Service Commission of Missouri, 366 S.W.2d 738, 741[1-5] (Mo.App.1963). The entrenched principle that a private citizen must show injury distinct from that of the general public to show aggrievement [May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748, 756[2, 3] (Mo.1958); Everett v. County of Clinton, 282 S.W.2d 30, 34[4] (Mo. 1955)] does not strictly apply to such a judicial review. More accurately, perhaps, the private and public interests in the agency decision coincide more nearly for an authoritative determination of such questions. Cooper, State Administrative Law, supra, p. 543.
[6] In Kansas City v. Reed, 546 S.W.2d 727, 731[1-4] (Mo.App.1977) the rule in Lalumondier was applied by this court without discussion of In re St. Joseph Lead Company to deny the City of Kansas City status for judicial review of a decision of the Liquor Control Board of review of that city under Article V, § 22 and § 536.150.
[7] The status recognized for a political or geographical unit of government is quite apart from any contended interest of a subordinate official to challenge the decision of a superior administrative board. The lack of status of such an official for judicial review in that capacity has been put to rest by Kostman v. Pine Lawn Bank and Trust Company, 540 S.W.2d 72 (Mo.banc 1976) and earlier decisions.
[8] As, for instance, where the grant of a liquor license results in an excessive number of such establishments compatible with the public health, welfare and safety. Board of Police Commissioners v. Reynolds, 86 R.I. 172, 133 A.2d 737 (1957). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431737/ | 575 S.W.2d 518 (1978)
Marylin Church COMMONS, Appellant,
v.
The STATE of Texas, Appellee.
No. 54485.
Court of Criminal Appeals of Texas, Panel No. 2.
May 17, 1978.
Opinion on Motion for Rehearing January 17, 1979.
*519 Kerry P. Fitzgerald, John Cravens, Dallas, for appellant.
Henry Wade, Dist. Atty., William M. Lamb, Dan Guthrie and Coleman Sylvan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
Opinion on State's Motion for Rehearing January 17, 1979.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction of the misdemeanor offense of fraudulently substituting price tags in violation of V.T.C.A., Penal Code, § 32.47. The jury assessed punishment at a probated fine of $50.00.
The record reflects that appellant, while shopping in a Skaggs-Albertson store in Dallas County, removed a $1.79 price tag from a box containing liquid Tylenol and substituted therefor a $.99 price tag which she had taken from a box of Tylenol tablets. When she checked out at the cashier's stand, she was charged $.99 for the liquid Tylenol. A Dallas police officer, Murray Jackson, who was working as a security officer in his off-duty hours for this Skaggs-Albertson store, observed appellant substitute the price tags, kept her under surveillance until she checked out of the store, and then apprehended her.
The relevant portion of the information upon which appellant was tried follows:
"... did unlawfully then and there knowingly and intentionally with intent to injure, defraud and harm, another, Murray Jackson, remove and substitute a writing, to wit: price tag, which was not a governmental record."
It is apparent that when price tags are switched on merchandise, as was the case here, it is the owner of the merchandise who is injured, defrauded and harmed because *520 it is the owner who stands to receive less for his goods as a result of the fraudulent act.
Here the information alleges that appellant substituted the price tags with the intent to injure, defraud and harm Murray Jackson, the security officer of the store; yet there is no evidence that he was the owner of the merchandise or the person who exercised care, control and custody thereof. See Article 21.08, V.A.C.C.P.; Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App. 1976); Roberts v. State, 513 S.W.2d 870 (Tex.Cr.App.1974); Harriford v. State, 487 S.W.2d 351 (Tex.Cr.App.1972); Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971).
Under these circumstances, we agree with appellant's contention that there was a fatal variance in the allegations in the information and the evidence introduced.
The judgment is reversed and the cause remanded.
OPINION ON STATE'S MOTION FOR REHEARING
PHILLIPS, Judge.
On original submission appellant's conviction for the fraudulent substitution of price tags in violation of V.T.C.A., Penal Code, Section 32.47 was reversed because of a fatal variance between the allegations in the information charging the offense and the evidence introduced. Upon reconsideration of this case and the State's motion for rehearing, we are convinced that the original disposition was correct. The State, in its motion for rehearing, confuses the issues at hand. They are correct in their assertion that the actual owner of the property on which the price tags were substituted or changed need not be alleged in the charging instrument. What the State fails to acknowledge, however, is that in this particular case they chose to make a "descriptive averment" as to who the "another" was, an essential averment. Having made a specific allegation, they were obligated to establish that allegation with proof. Roberts v. State, Tex.Cr.App., 513 S.W.2d 870; Easley v. State, 167 Tex. Crim. 156, 319 S.W.2d 325.
The general rule is that when the ownership of the property needs to be alleged and the property is owned by a corporation, the ownership should be alleged in the name of a natural person who fits within the definition of a special owner. See Roberts v. State, supra; Eaton v. State, Tex.Cr.App., 533 S.W.2d 33; Harriford v. State, Tex.Cr.App., 487 S.W.2d 351; Castillo v. State, Tex.Cr.App., 469 S.W.2d 572; Article 21.08, V.A.C.C.P. In the instant case, the Skaggs-Albertson Corporation owned the property. The corporation was the party injured. Murray Jackson was alleged to be the natural person that appellant intended to injure, defraud, and harm when she removed and substituted a price tag. The evidence showed that Murray Jackson was a security guard who worked for the corporation. Such an employment relationship does not render a security guard a special owner of the property within the premises he guards. See V.T.C.A., Penal Code, Section 1.07(24); McGee v. State, 572 S.W.2d 723 (1978). The dissent suggests that the evidence does support the essential averment that Murray Jackson was indeed harmed, injured and defrauded because he was "the person affected" by the appellant's act and was likewise "interested" in the welfare of the owner. We concede that a security guard is interested, or should be, in the welfare of his or her employer, the owner of the property to be guarded; however, we disagree that the removal and substitution of price tags "affects" a security guard in the sense intended in the definition of "harm" under V.T. C.A., Penal Code, Section 1.07(16). The person "affected" by the removal and substitution of price tags is the owner, be he general or special. It is clear that Murray Jackson did not suffer any "loss, disadvantage, or injury" from the actions of the appellant.
The conclusion reached in the original opinion is sound in that the party injured, defrauded, or harmed by the removal and substitution of the price tag is the property owner. The evidence established only that Skaggs-Albertson was the owner of the property and such proof was at a complete *521 variance with the allegation by the State that Murray Jackson was the person the appellant intended to injure, defraud, or harm. Such a variance in the allegation and proof is fatal and compels a reversal of appellant's conviction.
The State's motion for rehearing is overruled.
DOUGLAS, Judge, dissenting.
A Dallas police officer, Murray Jackson, testified that he worked as a security guard for Skaggs-Albertson Store to watch for, among other things, shoplifters and those who changed price tags on merchandise. While he was working there one afternoon he saw appellant remove a price tag from a large container of Tylenol and affix in its place the price tag from a smaller size. She was apprehended by Jackson outside the store.
The Court, on original submission, held that the State failed to prove that Murray Jackson was "the owner" of the merchandise as alleged in the information. The information alleged that appellant did "then and there knowingly and intentionally with intent to injure, defraud and harm, another, Murray Jackson, remove and substitute a writing, to wit: price tag, which was not a governmental record." The name of the person to be defrauded or harmed does not have to be alleged. Article 21.05, V.A.C.C.P., provides:
"Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; but in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person intended to be defrauded."
Even though the information may have alleged more than was necessary, there was no variance between the allegation and the proof. V.T.C.A., Penal Code Section 32.47(a), provides as follows:
"A person commits an offense if, with intent to defraud or harm another, he destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing, other than a governmental record." (Emphasis added).
The statute neither requires the information to allege nor does it require proof as to the owner. "Another" is defined in V.T. C.A., Penal Code Section 1.07(4), as "... a person other than the actor."
The information alleges that appellant intended to defraud and harm Murray Jackson, and the proof supports that allegation. Harm is defined in V.T.C.A., Penal Code Section 1.07(16):
"`Harm' means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." (Emphasis added).
Even if proof of ownership were required, V.T.C.A., Penal Code Section 1.07(24): "`Owner' means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor."
Jackson, by reason of his employment to prevent shoplifting and other crimes and to apprehend fraudulent takers of property and to return it to the store, had a greater right to possession than the appellant did. Jackson, under Section 1.07(16), supra, was interested in the welfare of those who owned the store and who were affected.
The State's motion for rehearing should be granted and the judgment should be affirmed.
TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431590/ | 734 S.W.2d 27 (1987)
In the Matter of the ESTATE OF John J. GIESSEL, Deceased.
No. 01-86-0717-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 14, 1987.
Rehearing Denied June 18, 1987.
Thomas H. Watkins, Hilgers & Watkins, P.C., Austin, for appellants.
Quincy A. James, Robert E. Hudson, Houston, for appellee.
*28 Before COHEN, JACK SMITH and DUGGAN, JJ.
OPINION
COHEN, Justice.
Based on the jury's finding that Rosie Kuchera was John J. Giessel's common-law wife, the court rendered judgment declaring her to be Giessel's sole heir. The appellants, Giessel's cousins, challenge the legal and factual sufficiency of the evidence proving the marriage.
In considering a legal sufficiency, or no evidence, point, we view the evidence in the light most favorable to the jury's finding, considering only the evidence and inferences therefrom that support the finding and rejecting all other evidence and inferences. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951). In considering a factual sufficiency point, we evaluate all the evidence, and reverse the judgment only if the jury's finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). When there is conflicting evidence on a fact question, the verdict will generally be upheld. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App. Houston [1st Dist.] 1984, writ ref'd n.r.e.).
The record reflects that Giessel's first marriage ended in divorce, and that Kuchera's first marriage ended in 1963 with the death of her husband. After her husband's death, Kuchera lived in a small home on a 150-acre tract of land that she and her husband had owned. Giessel lived nearby with his parents. In 1964, Giessel and Kuchera began living together in her home.
Kuchera testified that on September 18, 1964, she asked Giessel to marry her in a church wedding. He told her that "he got married by a preacher the first time and it didn't work out.... [and] he said we was going to get married under God's eyes and that was good enough." She testified that they lived together in a series of homes on her property until his death on November 3, 1984, at the age of 69, and that they had never spent a night apart.
The record reflects that Giessel was unemployed and penniless when he began living with Kuchera. Around 1970, Giessel placed his parents in a nearby nursing home, where they remained until their deaths in 1976. During this time, Giessel paid what he could for his parents' care. Kuchera testified that between the mid-1960's and the mid-1970's, Giessel only earned between $1.25 and $3.00 per hour, that she helped Giessel pay the nursing home bills, and that after the death of Giessel's parents, she helped Giessel pay their debts.
The record reflects that Kuchera's mother lived with them for about four months and that Kuchera's brother lived with them from about 1980 until Giessel's death.
Between 1974 and 1980, Kuchera executed an oil and gas lease and two pipeline easements. Each instrument described her as "Rosie Kuchera, a widow," and she signed each of them Rosie Kuchera. In 1978, Giessel executed an oil and gas lease on the property he inherited from his parents. The lease described him as "John J. Giessel, a single man."
With the income from the oil leases, Giessel and Kuchera built a new house on Kuchera's property. This house was built on the same spot as the house they had been living in since 1964.
Giessel's death certificate listed him as divorced with no surviving spouse. Several witnesses testified that Reverend Thrasher referred to Kuchera as "Giessel's special friend," during Giessel's funeral eulogy.
The record is unclear regarding who provided the information to the funeral home and to Reverend Thrasher at the time of Giessel's death. Kuchera testified that Lilly May Clark, her niece, made Giessel's funeral arrangements. Donald Strickland, the funeral home director, testified that their records listed Kuchera as the "# 1 Informant." However, he also testified that this was primarily because she was responsible for paying the funeral expenses. All of the funeral home documents signed by Kuchera were also signed by Fritzie Steenken, Giessel's cousin. They also contain Steenken's phone *29 number with the notation "to locate the grave," apparently because the gravesite was owned by Giessel's parents. The documents also reflect "Family will be at.... [C]all Ruth Edwards," and her phone number. (Emphasis in original.)
Strickland testified that he learned on the day of the funeral that Kuchera "lived with Giessel as his wife for 20 years," but that it was too late to retract the obituary notices listing Kuchera as Giessel's friend. He testified that he regretted the mistake.
Wayne Edwards owned land next to Giessel and Kuchera. He testified that he had known Giessel since they were both children, that Edwards' father helped Giessel and Kuchera build a house on Kuchera's land sometime in the mid 1960's, and that he believed that Kuchera and Giessel were married. In 1980 or 1981, Giessel told Edwards, "Rosie is my wife, and everybody knows that, and she is going to be taken care of and you don't have to worry about it." He also testified that Giessel and Kuchera "referred to each other as a couple, as a married couple." He testified that the local community referred to them as John and Rosie, but that others, particularly hunters and contractors, referred to them as Mr. and Mrs. Giessel, and that neither Giessel nor Kuchera ever denied or corrected the label.
Betty Lou Poehl testified that she had known Giessel since 1964 and Kuchera since 1965, and that she knew Kuchera as Rosie Kuchera Giessel. Poehl worked with both Kuchera and Giessel. One morning at work, she asked Giessel if he and Kuchera were married, and he responded that "definitely that they were husband and wife, that he could never have a woman that was more his wife than Rosie." Kuchera was present during the conversation and said that "we did not need a marriage license to be married." Poehl testified that Kuchera and Giessel had a reputation for being married, and that on many occasions she heard Giessel introduce Kuchera as his wife, and heard Kuchera introduce Giessel as her "old man." Poehl confirmed that Kuchera helped Giessel pay off the debts accumulated after Giessel's parents' deaths.
W.D. Anderson testified that he was acquainted with Giessel and Kuchera from 1979 to 1983 as a result of his employment with TIPCO, a company that was drilling oil wells on Kuchera's property. He testified that he believed that Kuchera was Giessel's wife, that on several occasions his employees told him "we saw him and his wife pass a while ago going that way," that they had a reputation for being married, and that he never heard any differently.
Beverly Upchurch, Giessel's second cousin, testified that she considered Kuchera and Giessel to be married because they were always referred to as "Johnny and Rosie, like one sentence ... we just considered them a twosome." Upchurch also testified that the Christmas cards that she received from Giessel were signed by Giessel only, and not by Kuchera.
Glen Goodwin, Upchurch's ex-husband, testified that he visited Giessel and Kuchera on many occasions, and that he considered them married. Sidney Becvar, Billy Joe Shupak, Earvin Moore, Wilbert Seuhs, and Robert Benn testified that they believed that Giessel and Kuchera were married and that they had a reputation for being married.
Samuel Clark testified that during a conversation between Giessel and an oil field worker, both Giessel and the worker referred to Kuchera as Giessel's wife. He also testified that he considered them to be married.
James Nutt testified that he had known Kuchera and Giessel since 1970, when he began leasing Giessel's property for deer hunting. He believed that Giessel and Kuchera were married, and believed that they had a reputation for being married. On cross-examination, he testified that he never heard Giessel introduce Kuchera as "my wife," but that he assumed that they were married because they were living together and because he had not heard differently. Alfred Gaskamp, another hunter, testified similarly to Nutt.
Alvin Perry testified that, while he was in college, he was employed by Giessel to build a fence, and that he thereafter worked sporadically for Giessel from 1982 *30 until Giessel's death. Perry testified that he referred to Kuchera and Giessel as Mr. and Mrs. Giessel, that he introduced them to his girlfriend as Mr. and Mrs. Giessel, and that neither one corrected him. Perry also testified that he considered them to be married and that they had a reputation for being married.
The record reflects that neither Kuchera nor Giessel told any of Giessel's relatives that they were married; that Kuchera's tax returns, driver's license, bank account, social security card, and pay check were in the name of Kuchera; that her tax returns listed her as single; that she and Giessel maintained separate bank accounts; and that they did not have any joint accounts or jointly owned property. Kuchera testified that she never used the name Giessel because she thought that she could not change her name to Giessel without a formal marriage license.
Several witnesses testified that Giessel and Kuchera always did everything together; they worked at the aluminum ladder plant together, they worked Kuchera's land together, they went shopping together, and they socialized together locally. On the other hand, several of Giessel's relatives testified that Giessel never brought or talked about Kuchera on the several occasions that he attended family functions.
Several of Giessel's cousins testified that they regularly received Christmas cards from him, but that they were only signed by Giessel and not by Kuchera. Laverne Knittel, Ouida Rohde, and Johnnie Mueller, Giessel's cousins, testified that Giessel neither told them that he was married, nor mentioned Kuchera's name. R.A. Williams testified that he asked Giessel if he was married and that Giessel said, "Hell, no, I've got better sense."
Leroy Seiler and William James were married to Giessel's cousins. Seiler testified that at a relative's birthday party in 1982, several men were standing around talking and Giessel was asked when he was going to get married. Giessel replied, "Hell, no, I'm ain't going to get married.... I been married before and I won't get married again." Someone said, "Well, what about your sex life?" and Giessel said, "If I want sex I'll go get some and go home."
James testified that Giessel said, "Hell, no, I've been married once, you don't think I'm another fool. All you have to do is go out and get you a little bit and then go back home." James also testified that he had fished on Giessel's property on three occasions, and that he never met Kuchera.
Leslie Rohde, husband of Ouida Rohde, Giessel's cousin, testified that he hunted on Giessel's property in 1983, but that he never met Kuchera, that he never saw Kuchera and Giessel working together, and that Giessel never told him that he was married.
Gladys Eloff, Giessel's cousin, testified that Giessel introduced Kuchera to her in 1981 as "Rosie," but that she did not know that Giessel and Kuchera were living together. She also testified that 10 days after the funeral, Kuchera told her that there was no will, and that she did not want any of Giessel's money.
Doris James, Giessel's cousin, testified that she saw Giessel at family gatherings, but that he never mentioned that he had a wife. Four weeks after the funeral, Kuchera told her that there was not a will, that "Johnny never wanted to get married," and that she believed that Fritz Steenken would get the estate.
A common-law marriage requires that the parties: (1) agree to be married; (2) live together after the agreement as husband and wife; and (3) represent to others that they are married. Tex.Fam. Code Ann. sec. 1.91 (Vernon 1975); see Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960). The statutory requirement of "represented to others" is synonymous with the judicial requirement of "holding out to the public." Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981); Warren v. Kyle, 565 S.W.2d 313, 316 (Tex.Civ.App.Austin 1978, no writ).
The appellants first contend that there was no "holding out": (1) because isolated references to each other as husband *31 and wife are no evidence of "holding out"; (2) because assumptions by the community are irrelevant; and (3) because there were inconsistent representations.
In Ex parte Threet, cited by appellants, the court held that isolated references, without more, were no evidence of a holding out. In the instant case, unlike Threet, the references by Kuchera and Giessel to each other as "husband" and "wife" were not the only evidence of their "holding out." The record is replete with evidence of Kuchera's and Giessel's conduct and reputation. In Rosales v. Rosales, 377 S.W.2d 661, 664 (Tex.Civ.App.Corpus Christi 1964, no writ), the court held that "holding out" could be established by conduct, and in Associated Indemnity Corp. v. Billberg, 172 S.W.2d 157, 164 (Tex.Civ.App.Amarillo 1943, no writ), the court held that spoken words were not necessary to establish a "holding out."
Moreover, in Threet, the purported "secret" common-law marriage lasted only two months, after which the 15-year-old girl testified that she stopped "dating" the purported husband. The purported spouses never spent an entire night together, and the closest thing to cohabitation was the male remaining with the girl at her mother's house until dawn one night when her parents were away. Threet is clearly distinguishable.
Gary v. Gary, 490 S.W.2d 929 (Tex.Civ. App.Tyler 1973, writ ref'd n.r.e.), cited by appellants as evidence of no "holding out," is distinguishable because the testimony of the purported wife conclusively proved that there was no agreement to be married. Id. at 934. The language regarding a "holding out" was, therefore, dicta, unnecessary to the court's holding. Moreover, the evidence of holding out is much stronger in the instant case than it was in Gary.
We conclude that there was sufficient evidence of "holding out" that exceeded isolated references to one another as spouses.
We reject appellants' contention that opinion and reputation testimony are irrelevant in proving holding out. Opinion and reputation testimony indicate that the couple's conduct was viewed as a representation that they were married. As stated in Grigsby v. Reib, 105 Tex. 597, 608, 153 S.W. 1124, 1130 (1913):
The cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife.
See also Brooks v. Hancock, 256 S.W. 296 (Tex.Civ.App.Texarkana 1923, no writ) (reputation is a factor to be weighed).
We also reject appellants' contention that Kuchera was not married, as a matter of law, because she denied the marriage in tax returns, social security, driver's license, bank, and pay records. The argument fails to "consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory to its nature." Rosales, 377 S.W.2d at 664; see also Tatum v. Tatum, 478 S.W.2d 629, 633 (Tex.Civ.App. Fort Worth 1972, writ dism'd) (once the marriage exists, subsequent disclaimers are of no effect). Kuchera's representations in tax returns and other documents that she was single go to the weight of the evidence; they do not negate a marriage, as a matter of law.
Appellants next contend that there is no evidence of an agreement to be married. They argue that, as a matter of law, no agreement to be married can be inferred from cohabitation and representations, Tex. Fam.Code Ann. sec. 1.91(b), because there is direct evidence that Giessel and Kuchera did not always represent themselves to be married.
We must decide whether there was evidence that the agreement was invalid as a matter of law, not whether there was some evidence that the parties did not always represent themselves to be married. Schwingle v. Keifer, 105 Tex. 609, 153 S.W. 1132 (1913); Perales v. Flores, 147 S.W.2d 974 (Tex.Civ.App.San Antonio 1941, writ ref'd). Appellants' construction would require a holding of no agreement, as a matter of law, whenever there was a fact issue regarding cohabitation or holding out.
*32 In the instant case, Kuchera testified clearly and positively that she and Giessel had agreed to be married "in God's eyes." In Grigsby v. Reib, 153 S.W. at 1130, the court recognized that marriage was "a status ordained by God...." Kuchera's testimony was direct evidence of an agreement. It did not, as a matter of law, negate an agreement to be married. Therefore, if more evidence of an agreement is necessary, it may be inferred from cohabitation and representations. Tex.Fam.Code Ann. sec. 1.91(b).
The first point of error is overruled.
In their second point of error, the appellants contend that the evidence is factually insufficient.
There was substantial evidence before the jury to support either an affirmative or negative answer to the sole special issue. The appellants did not explain the evidence supporting the jury's verdict. Kuchera explained, however, that she continued to use the name Kuchera in various documents and records only because of her mistaken belief that she needed a ceremonial marriage to do otherwise.
The jury could have placed less weight on the testimony of Giessel's relatives and their spouses because they had a financial stake in the outcome, whereas, none of Kuchera's witnesses did. Few of Giessel's cousins and their spouses were aware that he and Kuchera were living together, and most had never been to Kuchera's and Giessel's home. In Schwingle v. Keifer, 135 S.W. 194, 197 (Tex.Civ.App.San Antonio 1911), aff'd, 105 Tex. 609, 153 S.W. 1132 (1913), the court held that the "reputation as to marriage vel non must arise where both parties reside, and among those who are cognizant of the cohabitation."
We may not substitute our judgment for the jury's. The verdict is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The second point of error is overruled.
The third point of error contends that the trial court erred by instructing the jury according to Family Code sec. 1.91(b). We overrule this contention for the reasons stated in our discussion of the first point of error.
The fourth point of error contends that the trial court erred in instructing the jury that the marriage "may" be proved by the three part test of Family Code section 1.91. The appellants contend that the court should have instructed the jury that the marriage must be proved by evidence of the three elements, rather than that it may be so proved.
The instruction tracked sec. 1.91 and listed the elements of a common-law marriage in the conjunctive, not the disjunctive. There was no error. Tex.R.App.P. 81(b)(1). The fourth point of error is overruled.
The fifth point of error asserts that the trial court erred in overruling appellants' second motion for continuance. We overrule the point because the motion was not sworn, as required by Tex.R.Civ.P. 251.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431621/ | 734 S.W.2d 675 (1987)
TARRANT COUNTY HOSPITAL DISTRICT, Relator,
v.
Hon. William L. HUGHES, Jr., Respondent.
No. 2-86-231-CV.
Court of Appeals of Texas, Fort Worth.
April 9, 1987.
Rehearing Denied August 12, 1987.
*676 Tim Curry, Dist. Atty., and Sullivan H. Bradley, Jr., Asst. Dist. Atty., Fort Worth, for relator.
Dushman, Friedman & Brady, and Lowell H. Dushman, Fort Worth, for respondent.
Before the court en banc.
FARRIS, Justice.
Relator, Tarrant County Hospital District, seeks the issuance of a writ of mandamus to compel the Hon. William L. Hughes, Jr., Judge of the 48th District Court of Tarrant County, Texas, to rescind his order of October 16, 1986, entered in cause number XX-XXXXX-XX, styled Belinda C. Jackson, in behalf of the estate of Tristianne O. Jackson, deceased v. Tarrant County Hospital District, d/b/a John Peter Smith Hospital, which order compels relator as defendant to produce and make available to the plaintiff certain documents identifying blood donors.
We grant relator's motion for leave to file the petition, but deny the relief requested herein.
The cause of action giving rise to the matter in controversy is a suit for wrongful death brought by the plaintiff, individually and in behalf of the estate of the plaintiff's deceased daughter, against the relator. Plaintiff's original petition alleges that the deceased was given blood transfusions by relator which resulted in her contracting Acquired Immune Deficiency Syndrome (AIDS), and in the death of the deceased. Plaintiff accuses relator of failing to exercise the degree of care and the skill and treatment that is ordinarily exercised by and expected of the defendant (medical malpractice) as well as a failure to provide a wholesome blood product (implied warranty). The relator as defendant answered *677 by general denial. Plaintiff served the defendant with a request for production of documents requesting, in relevant part, the production of information pertaining to the names and addresses of blood donors. Relator filed its objection to the production of the information relating to blood donors and sought protective orders of the trial court. The trial court overruled the discovery objection and ordered that the relator disclose the identities and addresses of the blood donors. The court also ordered the plaintiff to not directly or indirectly contact any donor nor undertake further discovery regarding such donors until permitted to do so by further order of the court.
The scope of discovery largely rests within the discretion of the trial court. Jordan v. Ct. of App. for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 648-49 (Tex. 1985). A party opposing discovery bears the burden of establishing a discovery privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986); Jordan, 701 S.W.2d at 649; Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985).
In its petition for writ of mandamus, relator contends that the order complained of violates TEX.R.EVID. 509, that it violates the blood donors' constitutional right to privacy, and that the societal interest in maintaining a healthy and effective blood donor program clearly overrides any legitimate interest of the plaintiff in the disclosure of the blood donors' identities.
We hold that the physician-patient privilege expressed in TEX.R.EVID. 509 is not applicable. Under rule 509, a "patient" is defined to mean any person who consults or is seen by a physician to receive medical care. A "physician" is defined as a person licensed to practice medicine. Nothing in the record reflects that the blood donors were seen by a physician or received medical care when they donated blood.
In support of its contentions that the discovery order violates the donor's right to privacy and adversely affects the interest of society in maintaining a healthy and effective blood donor program, relator cites South Florida Blood Serv. v. Rasmussen, 467 So. 2d 798 (Fla.App.3d Dist.1985);[1]aff'd, 500 So. 2d 533 (Fla.1987). Rasmussen received 51 units of blood in the treatment of injuries incurred in an automobile accident. Subsequently, Rasmussen was diagnosed as having AIDS. Rasmussen sued the owner and operator of the other motor vehicle involved in the accident and served subpoena duces tecum on South Florida Blood Services, Inc., seeking "any and all records, documents, and other material indicating the names and addresses of the blood donors." South Florida Blood Services, not a party to the lawsuit, moved to quash the subpoena on the grounds that Rasmussen had failed to show good cause or justifiable reason for the invasion of the private confidential records of the blood service and its volunteer donors. The majority of the District Court of Appeals of Florida, 3rd District, held that the subpoena violated the donors' privacy interest and society's interest in a strong and healthy volunteer blood donation program and quashed plaintiff's subpoena.
The District Court of Appeals in Rasmussen acknowledged that the plaintiff had a legitimate interest in determining the identities of the blood donors because he could recover additional damages from the defendants if it could be shown that his AIDS was caused by blood transfusions necessitated by the injuries he suffered in the automobile accident, but his interest in the information was held slight when compared with the opposing interests. See South Florida Blood Serv. v. Rasmussen, 467 So.2d at 801. The District Court of Appeals in Rasmussen characterized its decision as one establishing that the Federal and State Constitutions[2] are sources of *678 privacy interest which must be scrutinized when raised in challenge of a discovery order. Id. at 803. In arriving at its decision, the District Court of Appeals determined that the blood donors' privacy interests were constitutionally based, that court orders which compel, restrict or prohibit discovery constitute State action subject to constitutional limitations, and that the court would apply a balancing test comparing the interest served by the State action with interests encroached upon by that action. Id.
The District Court of Appeals in Rasmussen also held that, on the facts of the case, after balancing all interest involved, discovery should not be allowed because the court found a free flow of donated blood of sufficient public importance when combined with the privacy interest of the donors to outweigh Rasmussen's interest in discovering the donors' identity. Id. at 804. In support of its conclusion, the court adopted the argument of South Florida Blood Services that because the blood of volunteer donors was less likely to be contaminated with infectious diseases than that of paid donors, the confidentiality of blood service records was essential in order to maintain a voluntary blood donation system sufficient to meet societal demands for blood and blood products. Id.
The District Court of Appeals certified to the Florida Supreme Court the following as a question of great public importance:
Do the privacy interests of volunteer blood donors and a blood service's and society's interest in maintaining a strong volunteer blood donation system outweigh a plaintiff's interest in discovering the names and addresses of the blood donors in the hope that further discovery will provide some evidence that he contracted AIDS from transfusions necessitated by injuries which are the subject of his suit?
The Florida Supreme Court answered the question in the affirmative and approved the decision of the lower court. See Rasmussen v. South Florida Blood Serv., 500 So.2d at 534.
The Supreme Court of Florida acknowledged that the blood donors' rights of privacy are protected by the Federal and Florida Constitutions, but stated that it need not engage in the strict scrutiny mandated by constitutional analysis because it found that the interests involved were adequately protected under Florida discovery rules. Id. at 535. The court noted that Florida rules of discovery confer broad discretion on a trial court to protect a party from "annoyance, embarrassment, oppression or undue burden or expense." Id. In its opinion, the Supreme Court of Florida discussed the express right of privacy contained in the Florida Constitution and the discussion which preceded its adoption, stating that a principal aim of the provision was to afford individuals some protection against the increasing collection, retention and use of information relating to all facets of individual lives. Id. at 536. The Supreme Court concluded that the disclosure sought by Rasmussen implicated constitutionally protected privacy interests. Id. at 537. The court also concluded that society's interest in a strong and healthy blood supply would be furthered by denial of the discovery sought by Rasmussen. Id. at 538.
Neither the Federal Constitution nor our State Constitution expressly mentions any right of privacy. Detailed discussions of the recognition of a constitutional right of privacy may be found in Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1973); Ind. Foundation v. Texas Ind. Acc. Bd., 540 S.W.2d 668, 678-80 (Tex.1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1550, 51 L. Ed. 2d 774 (1977); Ex parte Abell, 613 S.W.2d 255, 265-69 (Tex.1981) (Spears, J. dissenting). The term "right of privacy" is a generic term encompassing various rights recognized in decisions of the United States Supreme Court as well as in other federal and state courts. See 16B C.J.S. Right of Privacy sec. 630 (1985). The right of privacy has been held to protect the right of individuals to make certain decisions, without governmental interference, with regard to highly personal matters, e.g., Roe v. Wade. Most privacy cases decided by the United States Supreme *679 Court have involved the rights of individuals to make such autonomous decisions.
A second general area of "right of privacy" protects rights of individuals to prevent unlimited disclosure of personal information, e.g., Whalen v. Roe, 429 U.S. 589, 598-600, 97 S. Ct. 869, 875-77, 51 L. Ed. 2d 64 (1977). An individual's medical records have been declared to be within a zone of privacy protected by the Federal Constitution. Id. at 601, 97 S. Ct. at 877; G.M.C. v. Director of Nat. Institute, 636 F.2d 163, 166 (6th Cir.1980); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd Cir.1980); E.I. duPont de Nemours & Co. v. Finklea, 442 F. Supp. 821, 825 (W.Va. S.Dist.1977). Although the courts in each of the four cited cases recognized that the right of privacy extends to one's medical records, their opinions are of little comfort to the relator because, in each, the complained of activity was found to not violate the right of the individual. In Whalen v. Roe, the Supreme Court reversed a three-judge district court decision holding unconstitutional a State statute requiring the reporting of the names and addresses of all persons who had obtained prescriptions to certain drugs for which there were both a lawful and unlawful market. Whalen, 429 U.S. at 592, 97 S. Ct. at 872. The district court had held that the patient identification provisions of the act invaded a doctor-patient relationship which intruded on one of the zones of privacy accorded constitutional protection. Id. at 597, 97 S. Ct. at 875. The Supreme Court reversed the district court noting that the State statute provided safeguards against the improper disclosure of the medical records and held that the records did not establish an unconstitutional invasion of any right or liberty protected by the fourteenth amendment.
We disagree with the opinions of the Florida courts and hold that the trial court order compelling relator to identify blood donors is not an impermissible violation of their rights to privacy. We further hold that relator has not established a societal interest that overrides the plaintiff's right to discovery of the blood donors' identities.
In reaching this decision, we have applied a balancing test comparing the interest served by the State action[3] with the donors' interest in privacy. Nixon v. Administrator of General Services, 433 U.S. 425, 459, 97 S. Ct. 2777, 2798, 53 L. Ed. 2d 867 (1977). The plaintiff's interest in the identity of the blood donors is legitimate. Without the information, it is unlikely the plaintiff will be able to prosecute her cause of action against the relator. The record does not support relator's contention that the blood donors possess a need of anonymity greater than the plaintiff's need. The trial court's order makes an express finding that the disclosure of the identities and addresses of the donors does not violate a constitutional right of privacy. The trial court's order also affords the donors protection from public disclosure by its direction that the "plaintiff shall not directly or indirectly contact any `donor' identified through records produced under this order nor undertake further discovery regarding such `donors' until permitted to do so by further order of this court." The relator has not produced any evidence that would show or tend to show that the information sought by the plaintiff would be used improperly. duPont, 442 F.Supp. at 824. The trial court's discovery order includes adequate safeguards against the improper disclosure of the blood donors' identities. See G.M.C. v. Director of Nat. Institute, 636 F.2d at 166. In reaching its conclusions, the Florida Supreme Court noted that the discovery rules of that state allow a trial judge, upon good cause shown, to set conditions under which discovery will be given. See FLA.R.CIV.P. 1.280(c) and that some method could be formulated to verify a blood service's report that none of the donors was a known AIDS victim while preserving the confidentiality of the donors' identity. In a footnote to its opinion, the Supreme Court noted that South Florida *680 Blood Service had stated that none of Rasmussen's 51 donors appeared in a list of identified AIDS victims; however, the court agreed with Rasmussen that he should not have to rely on the Blood Service's statement. Rasmussen v. South Florida Blood Serv., 500 So.2d at 537.
Texas discovery rules also confer broad discretion upon a trial judge to limit discovery to protect any person against or from whom discovery is sought from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional or property rights. TEX.R. CIV.P. 166b(4). Relator seeks a blanket denial of any discovery of the donors' identities and suggests no conditions limiting the use or publication by the real party in interest of the donors' identities. From the record it appears that the relator has made no effort to determine whether any of its donors have been identified as AIDS victims. Because the trial court's order evidences a proper concern with protection of the individual's right of privacy, we hold that the record does not establish an invasion of any constitutionally protected right for liberty of the blood donors. See Whalen, 429 U.S. at 606-07, 97 S. Ct. at 879-80.
We also hold that the relator has failed to establish that the court ordered discovery is an abuse of discretion because of injury to any societal interest. We agree with the dissenting opinion of Chief Justice Schwartz of the Florida District Court of Appeals that a determination of injury to society's interest by the limited discovery ordered is no less speculative than a determination that the order would benefit society by discouraging blood donations by those infected with AIDS. South Florida Blood Serv. v. Rasmussen, 467 So.2d at 806.
For the reasons stated, we deny the relator's prayer for relief.
SPURLOCK, II, and BURDOCK, JJ., join.
LATTIMORE, J., concurs.
KELTNER, J., files a dissenting opinion in which FENDER, C.J., and HILL, J., join.
LATTIMORE, Justice, concurring.
I concur with the opinion of Justice Farris. We should not assume the occurrence of the worst eventuality. The trial court has it within its power to prevent the consequences not threatened by the parties, but envisioned by the dissenting opinion.
KELTNER, Justice, dissenting.
I respectfully dissent.
This mandamus case comes to us on a sparse record. In fact, we have not been furnished a copy of the discovery requests to which the Hospital District objects. However, all parties candidly admit the source of their disagreement and as a result, we are given enough information to grant leave to file this writ of mandamus.
In reviewing a trial court's actions in a writ of mandamus proceeding, this court cannot substitute its opinion for that of the trial judge. Instead, a writ of mandamus will not issue unless the trial judge clearly abuses his discretion. Barker v. Dunham, 551 S.W.2d 41, 42-43 (Tex.1977). Additionally, the party attempting to exclude information from discovery has the affirmative duty to specifically plead and prove the particular privilege or immunity. Peeples v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985); Jordan v. Ct. of App. for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 649 (Tex.1985).
The facts of the underlying case are discussed in the majority opinion. As is revealed by Justice Farris' opinion, we are asked to restrict discovery of the identity and location of blood donors. The defendant's decedent allegedly died of AIDS.[1] The defendant intends to prove that her decedent acquired AIDS through a transfusion of blood carrying the AIDS virus.
The spread of AIDS has been a media event. The hideous results of AIDS combined with the population groups with which it is most commonly associated (homosexual *681 and bisexual men, intravenous drug users), has caused a mass hysteria.[2] In fact, AIDS has been heralded as the "modern day equivalent of leprosy."[3]Rasmussen v. South Florida Blood Service, 467 So. 2d 798 (Fla.App.3d Dist. 1985), aff'd, 500 So. 2d 533 (Fla.1987).
As a result, social hostility has extended to AIDS victims, no matter how innocently they have acquired the disease. In addition, members of the "suspect groups" are stigmatized regardless if they are not infected with the disease.[4] As a result, the Hospital District asks us to protect the unnamed donors from intrusions into their medical conditions and private lives.
PHYSICIAN-PATIENT PRIVILEGE
In my opinion, the Hospital District has not carried its burden in proving that the identity of the blood donors is shielded from discovery because of the physician-patient privilege. The record before us does not contain a statement of facts. Counsel for both the Hospital District and the respondent admit that an evidentiary hearing was not held on the Hospital District's motion for protective order. This failure to produce proof that a physician-patient relationship existed between the Hospital District and blood donors is necessarily fatal to the Hospital's attempt to avoid disclosing the names of the blood donors.
The physician-client privilege did not exist at common law. 8 WIGMORE, EVIDENCE sec. 2380 (McNaughton rev. 1961). However, the privilege is now established by our rules of evidence. TEX.R.EVID. 509. Justification for the privilege is the well-reasoned policy of encouraging the full communications necessary for effective treatment of a patient by a physician. C. McCORMICK, EVIDENCE sec. 72 (3rd ed. 1984). The primary purpose of the privilege is to protect the patient against an invasion of privacy. Ex parte Abell, 613 S.W.2d 255, 263 (Tex.1981). As a result, courts have allowed physicians to assert the privilege on behalf of their patients. Id. at 262-63.
It is interesting to note that in a letter brief to the trial judge, the Hospital District contends that the hospital and medical director of the blood bank have the "same duties and responsibilities in regard to a blood donor as they would to any other patient coming under their care." Specifically, the Hospital District contends that the hospital and medical director of the blood bank are required to meet certain standards of care and are obligated to maintain the confidentiality of information collected from the patient in regard to their past and present medical conditions. The Hospital District further points out that the blood collection process is an invasive procedure which has, "readily observable effects on the donor" and carries the possibility for potential "serious adverse reaction." However, the Hospital District does admit that blood donors may not ever actually see or consult with a physician.
Neither this opinion nor the majority opinion passes on whether these contentions, if proved, would bring the information within the physician-patient privilege. However, it is the burden of the Hospital District to actually prove that a physician-patient privilege existed. This case *682 presents a unique situation for the application of the privilege. Unlike most cases where the privilege is raised, actual testimony may have been the only method in which to prove the application of the privilege. Unfortunately, the trial court was not furnished an adequate basis upon which to decide the issue.
As a result, we cannot hold that the trial court abused its discretion in overruling the Hospital District's motion for protective order and allowing discovery of the identity of blood donors.
RIGHT TO PRIVACY
The Hospital District also claims that the disclosure of the blood donors' identities would violate their right to privacy. Specifically, the Hospital District states, "the only conceivable reason for seeking discovery of the identity and location of these donors is to delve into the medical history and condition of each individual." The Hospital District claims that the information that is likely to be sought by the respondent will include the "intimate details" of the donors' lives, including sexual practices, drug abuse, and medical histories.
The majority opinion discusses the law regarding the constitutional right to privacy. While neither the United States nor the Texas Constitution expressly mention the right to privacy, it has been recognized as a necessary element of individual freedom. Whalen v. Roe, 429 U.S. 589, 598-600, 97 S. Ct. 869, 875-877, 51 L. Ed. 2d 64 (1977). However, in a complex society, the total right of privacy is infeasible, particularly where disclosure of information is concerned. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
When the right to privacy is raised, courts must entertain a two-step process of inquiry. The court must first determine whether the information sought to be disclosed concerns a fundamental right of privacy, i.e., a protected zone of privacy. Roe v. Wade, 410 U.S. at 152-53, 93 S. Ct. at 726-27, 35 L.Ed.2d at 176-77; Ex parte Abell, 613 S.W.2d 255, 266 (Tex.1981) (dissenting opinion).[5] If the information sought concerns a fundamental privacy right and thereby falls within a protected zone of privacy, the State must show a compelling interest before invading the zone of privacy. Roe v. Wade, 410 U.S. at 155, 93 S. Ct. at 728, 35 L.Ed.2d at 178; Ex parte Abell, 613 S.W.2d at 266 (dissenting opinion). On the other hand, if the information does not concern a protected zone of privacy, the court weighs the impact and threat of disclosure against the State interest and disclosure. Whalen v. Roe, 429 U.S. at 601, 97 S. Ct. at 877, 51 L.Ed.2d at 75; Ex parte Abell, 613 S.W.2d at 266 (dissenting opinion).
At this writing, only certain activities have been found to fall within the protected zone of privacy. Sexual relations within the marriage fall within such a protected zone. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). Likewise, contraception, [Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) ]; abortion, [Roe v. Wade, 410 U.S. at 113, 93 S. Ct. at 705, 35 L.Ed.2d at 147]; and procreation, [Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942)] have been held to be within the protected zone of privacy. However, a number of essential activities outside marriage have been held not to involve fundamental *683 areas of privacy. For example, homosexual conduct, [Bowers v. Hardwick, ___ U.S. ___, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986)]; adultery, [McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964)]; and prostitution, [Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917)] have been held not to involve protected areas of privacy.
In the instant case, it is impossible to determine which, if any, privacy interests may be invaded. The inquiries made during future discovery will determine that issue. The trial judge wisely decided to prevent the plaintiff from contacting blood donors or conducting further discovery until further order of the court. Obviously, the trial court intends to conduct discovery in the least obtrusive manner possible.
SOCIETAL INTERESTS
The Hospital District also contends that disclosure of the identity of blood donors would harm societal and institutional interests in maintaining a healthy and effective blood donation program. The Hospital District alleges that the public disclosure of blood donor identities would inhibit blood donations in the future. Specifically, the Hospital District argues that society's interest in maintaining an effective blood donation program clearly overrides any interest of the plaintiff in the disclosure of the identities of the blood donor. On the other hand, the plaintiff claims there is no other way for her to prove the allegations of her lawsuit.
At the outset, the Hospital District produced no evidence that the blood provided plaintiff's decedent was provided by blood donors rather than sellers.[6] Additionally, the Hospital District produced no evidence regarding the difficulty that local blood banks are encountering in encouraging volunteer donations of blood.[7] No evidence was presented which would tend to demonstrate that the disclosure of the donors' names would be counterproductive to the blood bank program.
Nonetheless, the Hospital District relies on the authority cited in Rasmussen v. South Florida Blood Serv., 500 So. 2d 533 (Fla.1987). The facts of that case are discussed in the majority opinion. The court in Rasmussen was faced with a similar situation.[8] In Rasmussen, the South Florida Blood Service moved to quash a subpoena and moved for protective order when its records reflecting the identity and location of blood donors were subpoenaed. When the trial court ruled against the blood service, it sought a writ of certiorari to the appellate court which in turn certified the question to the Florida Supreme Court.[9] In Rasmussen, the Florida court concluded that, "society's interest in a strong and healthy blood supply will be furthered by the denial of discovery in this case." Id. at 538.
The volunteer blood donation system is crucial to the maintenance of the life and health of the individual members of society. As a result, it is not in the public interest to discourage blood donations by members of the public. The public disclosure of the identity of donors in order to discover if they are infected with the AIDS virus might well discourage donors.
However, we must also protect the plaintiff's right to information necessary to prove her cause of action. In some instances, it is not possible to resolve the conflict *684 between these two competing interests. In those cases, the courts must apply balancing tests to determine whether society's interest outweighs those of a litigant.
However, in this case, it is possible to balance those interests without doing substantial damage to either. The trial court resolved the conflict by allowing discovery, but, denying the plaintiff an opportunity to contact the donors without a further order of the court, stating:
Defendant shall not directly or indirectly contact any "donor" identified through records produced under this order nor undertake further discovery regarding such "donors" until permitted to do so by further order of this court.
It is obviously the trial court's intention to closely monitor the discovery process to avoid undue publicity and intrusion into the donors' private lives. However, the trial court's order stops one step short of accomplishing the task. The trial court should have further insulated the donors by preventing any party to the litigation from disclosing the donors' names or locations, either directly or indirectly.
The problem with the current order is demonstrated in the Rasmussen case. The Florida Supreme Court noted that an order could be designed to both grant discovery and protect donors, stating:
Some method could be formulated to verify the Blood Service's report that none of the donors is a known AIDS victim while preserving the confidentiality of the donors' identities. However, the subpoena in question gives petitioner access to the names and addresses of the blood donors with no restrictions on their use. There is nothing to prohibit petitioner from conducting an investigation without the knowledge of the persons in question. We cannot ignore, therefore, the consequences of disclosure to nonparties, including the possibility that a donor's co-workers, friends, employers, and others may be queried as to the donor's sexual preferences, drug use, or general life-style.
Rasmussen, 500 So.2d at 537.
In the instant case, the trial court's order does not prevent any party from disclosing the identity of the donors to third parties, including potential witnesses and the news media. I realize this was not the intention of the trial court, and that this court has had the opportunity to review the trial court's decision, made in the heat of a trial schedule, with a relaxed 20/20 hindsight. Additionally, the plaintiff has indicated her understanding of the potential problem.
In her reply to the writ of mandamus, plaintiff has suggested that the list of donors be sealed in the court's record, not be dissiminated to the public, be made available only to the parties in the case, and be destroyed on the final disposition of the case. As mentioned in Justice Lattimore's concurring opinion, the threat of disclosure is not great. However, I cannot agree with his conclusion. While the threat may not be great, the potential harm of disclosure is great. If the names of the donors are disclosed, it will be too late for the court to act to protect society's interest.
I would grant the writ of mandamus only to the extent of directing the trial court to modify its order to prevent disclosure of the names of the donors, either directly or indirectly to any third person.
FENDER, C.J., and HILL, J., join.
ON MOTION FOR REHEARING
FARRIS, Justice.
After our original opinions were handed down in this case, Judge Hughes entered a supplemental order relating to the discovery of the identities of blood donors which reaffirmed the restrictions included in the October 16, 1986 order and placed further restrictions on the parties and their attorneys preventing them from disclosing the identities of the donors or contacting the donors without further order of the court.[1] The supplemental order expresses *685 an intent to "allay the fears" contained in the dissenting opinion. In argument on relator's motion for rehearing, before the court sitting en banc, counsel for relator has expressed relator's continued objection to any discovery of the identities of blood donors despite the additional restrictions placed upon discovery by the trial court. In argument, the attorney for relator has acknowledged that Judge Hughes has not denied relator any requested restrictions on the use or dissemination of the discovered blood donors' identities, and that relator would continue its objection to the discovery regardless of any restrictions which the court might impose.
Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law, and we would act in excess of our writ power if we granted mandamus relief absent these circumstances. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).
Relator seeks to have us issue our writ compelling the trial court to withdraw its discovery order. The scope of discovery largely rests within the discretion of the trial court. Jordan v. Ct. of App. for Fourth Sup. Jud. Dist., 701 S.W.2d 644, 648-49 (Tex.1985). The supplemented order of the court so restricts the discovery of the blood donors' identities as to preclude any risk of disclosure of the identities of the blood donors to third persons. The orders of the trial court with regard to the challenged discovery reflect a well reasoned use of the discretion reserved to trial courts on matters of this sort. The relator's motion for rehearing is overruled.
NOTES
[1] A discussion of Rasmussen is important to the determination of this case because its facts are uniquely similar to the facts of the instant case.
[2] Right of privacy.Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. FLA.CONST. Art. I, sec. 23.
[3] A court order which compels or restricts pre-trial discovery constitutes State action which is subject to constitutional limitations. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).
[1] Acquired Immunodeficiency Syndrome.
[2] Seventy-three percent of AIDS victims have been identified as homosexual or bisexual men. Seventeen percent have been identified as heterosexual men and women who are frequent intravenous drug users. Landesman, Ginzburg & Weiss "Special Report: The AIDS Epidemic," 312 New Engl.J.Med. 521 (1985). The other ten percent of AIDS cases have been divided among the following groups: Haitians living in the United States; non-drug-abusing individuals with hemophilia; prisoner population groups; central African immigrants to Europe; female sex partners of persons with AIDS; children of mothers who were high risk for AIDS. See Gottlieb, Groopman, Weinstein, "The Acquired Immunodeficiency Syndrome" 99 Ann.Intern. Med. 208 (1983); Clumeck, Sonnet, Taelman, "Acquired Immunodeficiency Syndrome In African Patients" 310 New Engl.J.Med. 492 (1984).
[3] At the present time, experts estimate that the mortality rate for AIDS may be as high as forty percent. Blodgett, "Despite the public's hands-off attitude towards AIDS, those who discriminate against the disease's victims are finding no immunity from the law," 12 Student Law. 8 (Jan. 1984).
[4] See N.Y. City Commission on Human Rights, "Gay and Lesbian Discrimination Documentation Project" (1984).
[5] An analogous fact situation to the instant case was presented in the Abell case. That case involved patients of a psychologist who brought actions against him because he had sex with them during their psychotherapy. They sought discovery of the names of other patients with whom the psychologist had sexual contact. The majority in Abell held that the information was privileged under the provisions of TEX.REV. CIV.STAT.ANN. art. 5561h (Vernon Supp.1987), repealed by, Act of May 17, 1979, ch. 239, 1979 Tex.Gen. Laws 512, 512-515, amended by Act of June 19, 1983, ch. 511, secs. 2 and 4, 1983 Tex.Gen. Laws 2970, 2972-73, 2974-75 (presently contained in TEX.R.EVID. 510), and did not discuss the right to privacy issue. However, four justices dissented and discussed the right to privacy claim. (Spears, Campbell, Wallace and Ray). The justices constituting the majority have all left the court.
The dissenting justices with the addition of any one of their colleagues now constitute a majority of the court. As a result, I believe the dissenting opinion casts light on the present thinking of our Supreme Court.
[6] A voluntary blood donation system is encouraged by the United States Government. See National Blood Policy, 39 FED.REG. 32701 (Sept. 10, 1974). Voluntary blood donation is highly favored over the selling of blood for the obvious reasons that blood donors are less likely to be contaminated with infectious diseases than those unfortunate individuals forced to sell their blood for subsistence. Id.
[7] However, there is no doubt that local blood banks have had difficulty in obtaining blood from volunteers.
[8] The Rasmussen court was evidently presented more evidence regarding the effect of the disclosure of the identity of donors. South Florida Blood Serv. v. Rasmussen, 467 So. 2d 798, 803-04 (Fla.App.3d Dist.1985), aff'd, 500 So. 2d 533 (Fla.1987). (Court of Appeals opinion).
[9] Florida certiorari practice is similar to mandamus practice in Texas. Rasmussen, 467 So.2d at 804. (Court of Appeals opinion.)
[1] The specific restrictions added by the supplemental order are as follows:
No one, including but not limited to Counsel and the parties, connected with this litigation shall directly nor indirectly divulge or allow to be divulged the identity of any "donors", any information about such "donors", or any information regarding such "donors" without specific leave and order of this Court.
All information concerning such "donors" shall be kept in a secure place and shall be made available for destruction under the supervision of this Court at the conclusion of this litigation or at such other time as the Court may order.
On or before May 8, 1987, each party desiring to do so will submit to the Court in letter form a plan for the future discovery of information relating to such "donors" beyond that now ordered. Such plan should include details for contacting such "donors" discovery directed to such "donors" and/or "testing" of such donors if contact, direct discovery and/or testing is anticipated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431625/ | 734 S.W.2d 142 (1987)
Gary B. WADKINS, et al., Appellants,
v.
DIVERSIFIED CONTRACTORS, INC., Appellee.
No. 01-87-00148-CV.
Court of Appeals of Texas, Houston (1st Dist.).
July 2, 1987.
*143 Meyer Jacobson, Houston, for appellants.
Rhett G. Campbell, Morris & Campbell, Houston, for appellee.
Before WARREN, DUGGAN and LEVY, JJ.
OPINION
WARREN, Justice.
This is an appeal from a summary judgment dismissing appellants' bill of review.
The main question for our determination is whether a litigant may willfully forfeit its right to appeal, and instead, attempt to enforce its rights by a bill of review.
Appellee originally sued appellants Wadkins Corporation and Gary Wadkins, the corporation's president and sole owner, for money damages arising from a breach of contract by the Wadkins Corporation and for other alleged wrongful acts by Gary Wadkins.
On December 11, 1985, the trial court granted appellee's summary judgment against appellants. On March 26, 1986, appellants filed a motion for new trial, alleging that they had received no notice of the judgment until February 24, 1986. The motion for new trial was overruled by operation of law on May 10, 1986.
Appellants, by their own admission, purposely filed an appeal bond later than allowed by the rules, Tex.R.App.P. 41, and purposely did not file a motion to extend the time for such filing. Appellants' excuse for the purposeful late filing was that they could not prove the date that they received notice of the judgment, as required by Tex.R.Civ.P. 306a(4) and (5). We dismissed the appeal. Wadkins v. Diversified Contractors, Inc., 714 S.W.2d 136 (Tex.App.Houston [1st Dist.] 1986, no writ). Appellants then filed a bill of review to set aside the judgment.
On December 8, 1986, the trial court granted appellee's motion for summary judgment on appellants' bill of review.
In their brief, appellants claim that the trial court erred in granting summary judgment because:
(1) there were material fact issues involved; and
(2) the law on the subject did not warrant the granting of summary judgment.
Initially, appellants contend that we cannot properly review this cause without referring to the record in the first appeal, which contains the appellants' sworn answer, and the admissions and answers thereto filed in the original suit. Appellants have not made those records a part of the immediate appellate record. Those records, according to appellants, would show that the court erroneously granted summary judgment in the first cause.
It is the appellants' duty to introduce the transcript and statement of facts in the original suit if the appellate court needs them in order to review the bill of review record. Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974). We are not permitted to inspect or consider other records not part of the record before us. If, as appellants contend, we cannot review the immediate case without reference to the record in the original case, appellants should have introduced the prior *144 record in the trial court and included it in the record of the case now on appeal. Moody House, Inc. v. Galveston County, 687 S.W.2d 433 (Tex.App.Houston [14th Dist.] 1985, writ ref'd n.r.e.).
Before appellants may prevail on a bill of review of the type presented herein, they must prove:
(a) a meritorious defense to the cause of action alleged to support the judgment;
(b) which they were prevented from making by the fraud, accident, or wrongful act of the opposing party; and
(c) their inability to appeal the case is unmixed with any fault or negligence of their own.
Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). A litigant may be relieved of proving fraud, accident or wrongful act of the opposing party by showing that he or she was deprived of the right to appeal because of an act or the omission thereof by an officer of the court. Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964). In our case, appellants have shown that they were prevented from filing a timely motion for new trial in the original case because of the trial court's failure to notify them that judgment was entered. But the record before us is devoid of any evidence that appellants pled a meritorious defense in the original action, or that their inability to appeal the original case was unmixed with any fault or negligence of their own. The record affirmatively shows that appellants' failure to effect appellate review of the original action was not only negligence, but was a willful decision to not timely file an appeal bond, and a willful, conscious decision to not request an extension of time to file the appeal bond.
The requirement that an appellant show that the failure to appeal was unmixed with any fault or negligence on his part may not be satisfied, as appellants contend, by showing that the failure to appeal was willful. Appellants may not raise points of error in a bill of review that have been or could have been raised by appeal in the original proceeding. Smith v. Rogers, 129 S.W.2d 776 (Tex.Civ.App. Galveston 1939, no writ).
Appellants' two points of error are overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431622/ | 734 S.W.2d 55 (1987)
Ex parte Robert Lee SAYLOR, Appellant.
No. 01-86-0755-CR.
Court of Appeals of Texas, Houston (1st Dist.).
June 4, 1987.
Emmett Moore, Houston, for appellant.
John B. Holmes, Jr., Harris Co. Dist. Atty., and Roe Morris and Danise Crawford, Harris Co. Asst. Dist. Attys., Houston, for respondent.
Before JACK SMITH, DUGGAN and COHEN, JJ.
OPINION
DUGGAN, Justice.
This is an appeal from the denial of habeas corpus relief. Appellant sought dismissal with prejudice of two Harris County indictments based on his claim of violation of the Interstate Agreement on Detainers Act ("the IADA"), codified as Tex.Code Crim.P.Ann. art. 51.14 (Vernon 1975).
Appellant was arrested on October 28, 1985, in Phoenix, Maricopa County, Arizona, on a warrant from Orange County, California, and was confined in the Maricopa County Jail. Appellant was indicted in Harris County on November 11 and November 14, 1985, in cause numbers 436,069 and 436,765, respectively. Subsequently, Harris County lodged interstate detainers against appellant with Arizona authorities on the two cause numbers.
On December 18, 1985, appellant was returned to Texas under the detainers and placed in the Harris County jail under $10,000 bond in each case. On August 20, 1986, some 242 days after his arrival at the Harris County jail, appellant filed his "Application for Writ of Habeas Corpus and Motion to Dismiss," asserting a violation of the IADA for failure to try him within 120 days of his arrival in the receiving state. After a writ hearing on August 25, 1986, the trial court denied appellant's requested relief.
In a single point of error, appellant contends that the trial court erred in not dismissing with prejudice the two indictments against him, since failure to dismiss was in violation of his right under the IADA to be tried within 120 days of his arrival in Texas, the receiving state.
Tex.Code Crim.P.Ann. art. 51.14, Art. IV(c) provides:
In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of *56 the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Appellant introduced the docket sheets related to both indictments. Each docket sheet recited that appellant appeared in open court with counsel on December 23, 1985, and filed his written waiver of speedy trial. The State introduced appellant's written waiver of speedy trial form. The court took judicial notice, without objection, that between December 18, 1985, the date of appellant's arrival in the Harris County jail, and August 20, 1986, the date that he filed his application for writ of habeas corpus, appellant requested and was granted seven agreed resettings. Appellant was at all times represented by retained counsel.
Appellant's position is that he is entitled to dismissal under Art. IV(c) of the IADA, notwithstanding the facts of his speedy trial waiver and the "agreed resets" granted at his own and his successive attorneys' requests. This is so, he urges, because Art. IV(c) requires that trial "shall be commenced within 120 days of the arrival of the prisoner in the receiving state," with only two exceptions that could apply in his situation to toll the 120-day period: (1) that he was "unable to stand trial ...," as set out in Art. VI(a) of the agreement; and (2) that "for good cause shown in open court, the prisoner or his counsel being present," the trial court granted a "necessary or reasonable continuance," as provided in Art. IV(c) of the IADA.
Appellant argues, first, that no contention is made by any party that appellant was ever unable to stand trial, and second, that the record gives no indication that either appellant or the State moved in open court for a continuance for good cause.
Art. VI of the IADA provides, in its entirety:
In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
No provision of this agreement, and no remedy made available by this agreement shall apply to any person who is adjudged to be mentally ill.
As to appellant's contention that no party showed that he was unable to stand trial, Art. VI provides on it face for mandatory tolling of Art. III and Art. IV duration and expiration dates in the two listed circumstances; however, neither Art. VI nor any other provision of the IADA declares that its delay provisions are exclusive and not to be construed in conjunction with other statutes, such as the Speedy Trial Act, Tex.Code Crim.P.Ann. art. 32A.02 (Vernon Supp.1987).
The State urges that it proved appellant's waiver of speedy trial by his execution and filing of a waiver form on December 23, 1985.
Appellant responds that the State's reliance on the Speedy Trial Act is misplaced and irrelevant to the question presented by his habeas corpus application because the IADA and the Speedy Trial Act were enacted for different purposes. He argues that he is entitled to relief under the IADA, unfettered by concepts applicable to the Speedy Trial Act, including the interpretation that its purpose is to avoid prosecutorial delay only.
Appellant cites the caption of Tex.S.B. 130, 65th Leg. (1975), the Texas legislative enactment of the IADA, as support for his argument that speedy trial was not a purpose of the measure. He argues that speedy trial and prosecutorial delay are nowhere mentioned in the bill's caption, which instead indicates that the Act's purpose was to provide "procedures to facilitate handling and disposition of [foreign state] detainers based on untried indictments...."
Such an interpretation is overly restrictive and unwarranted. Contrary to appellant's assertion, Art. I of the adopted IADA recites that difficulty "in securing speedy trial of persons already incarcerated *57 in other jurisdictions" is among the problems that have resulted in "the policy of the party states and purpose of this agreement to encourage the expeditious... disposition of such charges...."
We agree with appellant that the language quoted by the State in Akbar v. State, 660 S.W.2d 834 (Tex.App.Eastland 1983, pet. ref'd), was dicta to that decision in stating that "[t]he Interstate Agreement on Detainer Act as the Speedy Trial Act should be construed as being aimed at prosecutorial delay." Before making the quoted statement, the Eastland Court of Appeals had already found (1) that the ground of error being urged failed to comport with the objection made at trial, and (2) that good cause for a continuance under the IADA had been shown. Nevertheless, we agree with Akbar's quoted conclusion. Based on the IADA's policy and purpose to secure speedy trials for persons incarcerated in other jurisdictions, as set forth in the language of its Art. I, we hold that the IADA should be construed, as the Speedy Trial Act is construed, to be a measure enacted to avoid prosecutorial delay, and that appellant waived his right to trial within 120 days under the IADA by executing and filing his waiver of speedy trial.
Apart from appellant's speedy trial waiver, his second argument, viz., that the record gives no indication that either he or the State moved in open court for a continuance for any reason, is also resolved against him. In Huffines v. State, 646 S.W.2d 612, 613 (Tex.App.Dallas 1983, pet. ref'd), the trial court passed a trial setting by agreement of the parties to another trial date 52 days later. The Dallas Court of Appeals held that where the State and the accused agree to a continuance in the record, and no other explanation therefor is provided by the record, a reviewing appellate court must deem the continuance "necessary and reasonable" as provided by Art. IV(c), and the time involved excludable under the IADA's 120 day period.
The agreed resettings in the present case undisputedly cover the entirety of the time elapsing from appellant's arrival in Texas until his hearing. With no other explanation provided in the record, we deem the continuances "necessary and reasonable" under Art. IV(c) of the IADA. Huffines, 640 S.W.2d at 613.
Appellant's point of error is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431600/ | 465 F. Supp. 2d 347 (2006)
Wendy BARROWS, Plaintiff,
v.
CHASE MANHATTAN MORTGAGE CORPORATION, et al., Defendants.
Civil Action No. 05-3880(NLH).
United States District Court, D. New Jersey.
December 8, 2006.
*351 Donald M. Doherty, Esquire, Sander D. Friedman, Esquire, Friedman Doherty, LLC, West Berlin, NJ, for Plaintiff.
Marguerite Mary Schaffer, Esquire, Shain, Schaffer & Rafanello, PC, Bernardsville, NJ, for Defendants, Chase Manhattan Mortgage Corp., Chase Home Finance, LLC, and Mortgage Electronic Registration Systems, Inc.
Lance J. Kalik, Esquire, Riker Danzig Scherer Hyland & Perretti, LLP, Morristown, NJ, for Defendants, Hubschman & *352 Roman, PC and John J. Roman, Jr., Esquire.
OPINION
HILLMAN, District Judge.
This matter has come before the Court; on Plaintiffs motion to remand and Defendants' motions to dismiss Plaintiffs Complaint pursuant to Federal Civil Procedure Rule 12(b)(1), or, in the alternative, Rule 12(b)(6). For the reasons expressed below, Defendants' motions will be granted in part and denied in part, and Plaintiffs motion will be denied.
I. BACKGROUND AND PROCEDUAL HISTORY
Plaintiff, Wendy Barrows, fell behind on her mortgage in late 2004, which ultimately resulted in Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") filing a foreclosure action against her on March 29, 2005 in the Superior Court of New Jersey, Chancery Division, Burlington County. On June 28, 2005, Plaintiff then filed "a class action companion suit" in the same court. Defendant Chase Manhattan Mortgage Corporation removed Plaintiffs class action complaint to this Court on August 3, 2005. The foreclosure action remained pending in the New Jersey Superior Court until August 24, 2006, when the foreclosure complaint was dismissed after Plaintiff sold her home and satisfied her mortgage.
Plaintiff's class action complaint seeks to certify three classes of plaintiffs for claims arising out of improper collection practices of Defendants MERS, Chase Manhattan Mortgage Corp., Chase Home Finance, LLC (collectively referred to as "Chase"), Hubschman & Roman, PC, and John J. Roman, Jr., Esquire (collectively referred to as "Hubschman").[1] Specifically, Plaintiff claims that when Defendants instituted foreclosure proceedings against her and other similarly-situated individuals, they imposed charges for legal fees and costs in excess of what is permitted by law. Against the MERS and Chase Defendants, Plaintiff has asserted claims for "Accounting and Refund" (Count I), consumer fraud pursuant to New Jersey Statute Ann. 56:8-1 et seq. ("Consumer Fraud Act") (Count II), violation of the Truthin-Consumer Contract, Notice and Warranty Act, New Jersey Statute Ann. 56:12-14 et seq. (Count III), breach of implied covenant of good faith and fair dealing under New Jersey state law (Count IV), and breach of implied statutory cause of action under the Fair Foreclosure Act, New Jersey Statute Ann. 2A:50-53 (Count V). Against the Hubschman Defendants, Plaintiff has asserted claims for fraud under New Jersey state law (Count VI), negligent misrepresentation under state law (Count VII), accounting and refund (Count VIII), consumer fraud under the Consumer Fraud Act (Count IX), violation of the Truth-in-Consumer Contract, Notice and Warranty Act (Count X), tortious interference with contract (Count XI), breach of implied statutory cause of action under the Fair Foreclosure Act (Count XII), and violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1962, et seq. (Count XIII). Against all Defendants, Plaintiff has asserted claims for civil offenses involving organized crime and organized crime activities (Racketeering) pursuant to New Jersey Statute Ann. 2C:41 (Count XIV). Plaintiff has also requested injunctive relief (Count XV). Removal was pursuant to 28 U.S.C. § 1331 based on Plaintiffs federal FDCPA claim against the Hubschman Defendants.
*353 Pending before the Court are Plaintiffs motion to remand pursuant to 28 U.S.C. § 1441(c), the Chase, MERS and Hubschman Defendants' motions to dismiss pursuant to Federal Civil Procedure Rule 12(b)(1), and the MERS and Hubschman Defendants' alternative relief pursuant to Rule 12(b)(6).[2]
II. DEFENDANTS' MOTIONS TO DISMISS
The Defendants' motions to dismiss pursuant to Federal Civil Procedure Rule 12(b)(1) must be addressed first because Defendants are contending that Plaintiff lacks standing to assert her claims, and disputes over constitutional standing for purposes of Article III, Section 2 of the United States Constitution must be addressed before proceeding to the merits of a plaintiffs claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).
Defendants contend that Plaintiff lacks standing to pursue her claims because she has not suffered an "injury in fact" as required by the "case and controversy" requirement of Article III. Defendants argue that because Plaintiff never paid the attorneys' fees and costs that she claims are in excess of what is permitted by law, she has not suffered an injury in fact. Without any injury, Defendants argue that all of Plaintiffs claims must be dismissed.
In order to establish an injury in fact, a plaintiff must have suffered an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (citations omitted). Additionally, there must be a causal connection between the injury and the conduct complained of; that is, the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Id. (citations omitted). It must also be "likely," as opposed to merely "speculative," that the injury will be redressed by a favorable decision. Id, at 561, 112 S. Ct. 2130. (citations omitted).
These general principles of standing are applicable to all of Plaintiffs claims, but her statutory claims may contain particular standing requirements. For each claim asserted by Plaintiff, it must be determined whether she has standing to assert the claim, and then, if so, whether the claim survives the Defendants' Rule 12(b)(6) motions to dismiss. Each claim will be addressed in turn, starting with Plaintiffs FDCPA claim against the Hubschman Defendants because that claim is the basis for jurisdiction in this Court and the viability of that claim directly relates to the remand issue.
A. FDCPA (Count XIII against Hubschman Defendants)
In relevant part, the FDCPA provides that a "debt collector may not use unfair *354 or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f. It is a violation of the Act to collect "any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." Id. If a debt collector fails to comply with this provision, a plaintiff may receive actual damages or "such additional damages as the court may allow, but not exceeding $1,000."[3]Id. § 1692k (a)(2)(A).
Plaintiff alleges in her Complaint that the Hubschman Defendants violated the FDCPA because Defendants, as debt collectors, demanded collection of sums in excess of what is permitted by law when it sent Plaintiff a letter containing a "breakdown of the monies required in order to reinstate" her loan, including a charge for "Legal Fees and Costs due lender" in the amount of $2,500. (PL's Ex. 6, Def.'s Ex. A.) Defendants argue that Plaintiffs claim under the FDCPA must be dismissed because she lacks standing because she never paid any fees. In the alternative, Defendants argue that Plaintiffs claim should be dismissed for her failure to state a claim because they are not debt collectors and their request was lawful.
Despite the fact that Plaintiff never paid the attorneys' fees and costs requested by Defendants, Plaintiff has suffered an injury in fact for the purposes of standing. The FDCPA prohibits "unfair or unconscionable means to collect or attempt to collect any debt" not permitted by law. Id. at § 1692f (emphasis added). Thus, a debt collector can violate the FDCPA even if he does not actually receive the illegal debt he tried to collect. Additionally, a plaintiff may be entitled to statutory damages for a debt collector's violation even if she has not suffered any actual damages. See id. § 1692k(a)(2)(A). These provisions of the FDCPA defeat Defendants' argument that Plaintiff needed to have paid the attorneys' fees and costs in order to have standing to bring her FDCPA claim against them. See Robey v. Shapiro, Marianos & Cejda, L.L.C, 434 F.3d 1208, 1212 (10th Cir.2006) (holding that the plaintiff satisfied the "injury in fact" requirement of constitutional standing, and that the plaintiff had been injured under the terms of the FDCPA and could seek legal redress of his claim under the Act, because he claimed that the defendant law firm violated the FDCPA by attempting to collect attorneys' fees that were not permitted under state law); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir.2003) (holding that the fact that the plaintiff did not ever pay any attorneys' fees does not necessarily suggest that he was not injured for purposes of his FDCPA claim, if he can show that the law firm attempted to collect money in violation of the FDCPA); Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.1998) (same); Baker v. G.C Servs. Corp., 677 F.2d 775, 777 (9th Cir.1982) (same).
Now that it has been established that Plaintiff has standing to assert her FDCPA claim, Defendants' arguments regarding why Plaintiffs claim fails must be addressed. Defendants make five arguments: 1) Defendants' request for attorneys' fees was expressly "authorized by agreement"; 2) Plaintiffs Complaint merely speculates that Defendants' request for attorneys' fees and costs could not have equaled the requested $2,500; 3) Plaintiff does not and cannot plead that the alleged request for attorneys' fees and costs was "not permitted by law"; 4) disputes over *355 attorneys' fees and costs belong in the foreclosure action; and 5) Defendants are not debt collectors because the letter from Defendants to Plaintiff was not a demand letter.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Civil Procedure Rule 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancko v. Fisher, 423 F.3d 347, 351 (3d Cir.2005). A court may not dismiss the complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (citations omitted). A court, however, need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,1429-30 (3d Cir.1997).
In reviewing a Rule 12(b)(6) motion, a court must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir.1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). If any other matters outside the pleadings are presented to the court, and the court does not exclude those matters, a Rule 12(b)(6) motion will be treated as a summary judgment motion pursuant to Rule 56. Fed. R.Civ.P. 12(b).
As an initial matter, even though the Defendants' letter to Plaintiff was not attached to her Complaint, the Court will consider the letter from Defendants to Plaintiff in deciding Defendants' motion. The motion will not be converted into a summary judgment motion, however, because Plaintiffs claims are based on the document, and there is no contention that it is not authentic.
Plaintiff claims that Defendants "are debt collectors," and demanded "collection of sums in excess of that which is legally permitted" by New Jersey law and/or Court Rules. (Compl. §§ 114-115, 29.) The letter demanded $2,500 due for "legal fees and costs." The FDCPA prohibits debt collectors from collecting or attempting to collect any fees not permitted by agreement or law. See 15 U.S.C. § 1692f. The FDCPA also mandates that the initial correspondence the debt collector sends to the debtor must contain a statement that the "debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." See id. § 1692e(ll). Thus, accepting as true Plaintiffs contention that Defendants are debt collectors, that Defendants' letter did not contain the proper warning, and that Defendants' demand for $2,500 for fees and costs violates an agreement or New Jersey law and/or Court Rule, Plaintiff has alleged a viable claim.
The Court, however, does not need to credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. To prove Plaintiffs claim under FDCPA, Defendants must have been "debt collectors" as defined by FDCPA, and the demand for $2,500 must have violated an agreement or New Jersey law. If either of these two legal conclusions are unsupportable by the statute, then Plaintiffs FDCPA claim must fail. The Court will also address Plaintiffs other *356 argument that the letter must contain a warning, but it is not dispositive to the viability of Plaintiffs FDCPA claim.
1. Whether Hubschman Defendants are "debt collectors" under FDCPA
Following Congress's removal of language in the FDCPA that expressly excluded attorneys from FDCPA liability, the United States Supreme Court clarified the lower courts' disagreement over whether attorneys could be classified as "debt collectors" and be subject to liability under the Act. In Heintz v. Jenkins, 514 U.S. 291, 294-95, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995), the Court found that the FDCPA "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation," for two reasons:
First, the Act defines the "debt collector[s]" to whom it applies as including those who "regularly collec[t] or attempt] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another." § 1692a(6). In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly "attempts" to "collect" those consumer debts.
...
Second, in 1977, Congress enacted an earlier version of this statute, which contained an express exemption for lawyers. That exemption said that the term "debt collector" did not include "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client." Pub.L. 95-109, § 803(6)(F), 91 Stat. 874, 875. In 1986, however, Congress repealed this exemption in its entirety, Pub.L. 99-361, 100 Stat. 768, without creating a narrower, litigationrelated, exemption to fill the void. Without more, then, one would think that Congress intended that lawyers be subject to the Act whenever they meet the general "debt collector" definition.
Here, Plaintiff has alleged that the Hubschman Defendants are debt collectors, but Defendants have not asserted that they are not. Defendants merely state that Plaintiffs characterization of them as "debt collectors" is a conclusory allegation. Defendants also analogize themselves to an Eastern District of Michigan case which held that a law firm was not a "debt collector" under the FDCPA because a letter they sent to a debtor containing a reinstatement figure was not for the purposes of collecting a debt, but rather to accommodate the debtor by providing information he requested regarding the reinstatement of the mortgage to avoid foreclosure. See Williams v. Trott, 822 F. Supp. 1266 (E.D.Mich.1993).
Even though Williams is a somewhat factually similar case, Defendants' use of the Williams case to explain that they are not debt collectors is misplaced because it was decided prior to Heintz and the court did not have the benefit of applying Supreme Court reasoning to the situation before it.[4] As it was simply stated in Heintz, Defendants are debt collectors if they are lawyers who regularly try to obtain payment of consumer debts through legal proceedings. Defendants have not shown that they are not lawyers who regularly try to obtain payment of consumer debts through legal proceedings. Thus, the Court cannot conclude that Defendants are not "debt collectors." Consequently, for the purposes of deciding Defendants' motion to dismiss, and construing Plaintiffs allegations as true, Defendants are "debt collectors" under FDCPA.
*357 2. Whether Defendants' demand for $2,500 for legal fees and costs violated an agreement or New Jersey law
The basis for Plaintiffs entire case against the Hubschman Defendants is that their demand for "Legal fees and Costs due lender" in the amount of $2,500 violates New Jersey law and New Jersey court rules. Specifically in regard to her FDCPA claim, Plaintiff claims that the figure violates 15 U.S.C. § 1692f(l), which prohibits the collection "of any amount(including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law."
Defendants first argue that the amount is permitted by the mortgage contract. Plaintiff concedes that her note and mortgage provide for the payment of counsel fees. Defendants also argue that the requested sum of $2,500 represented both attorneys' fees and costs, and Plaintiff merely speculates that the request for attorneys' fees and costs could not have equaled $2,500. Defendants further argue that Plaintiffs reliance on New Jersey's Fair Foreclosure Act and New Jersey Rules of Court for the contention that the figure is not "permitted by law" is flawed. Finally, Defendants contend that the court handling the foreclosure is the arbiter of any award of attorneys' fees and costs, and that a mere request for fees and costs as part of a reinstatement quote that allegedly exceeds an amount allowed under state law does not establish a FDCPA claim.
To resolve this issue, the "law" that Plaintiff claims Defendants violated must be established. Plaintiff first cites a New Jersey Court Rule. If a foreclosure action is pending, attorneys' fees are calculated pursuant to a percentage formula promulgated by Rule 4:42-9(4).[5] This rule is mandatory, and any provisions for the award of fees in the note or mortgage are not controlling. Coastal State Bank v. Colonial Wood Products, Inc., 172 N.J.Super. 320, 411 A.2d 1172, 1174 (1980) (citing Alcoa Edgewater No. 1 Federal Credit Union v. Carroll, 44 N.J. 442, 210 A.2d 68 (1965)); Bank of Commerce v. Markakos, 22 N.J. 428, 126 A.2d 346 (1956))("[E]ven if a plaintiff in a foreclosure action seeks to recover a fee on a provision in a note from the outset of the litigation, he is limited to the fee allowable under R. 4:42-9(4)."); Bank of Commerce v. Markakos, 40 N.J.Super. 31, 122 A.2d 13, 15 (1956), affd, 41 N.J.Super. 246, 124 A.2d 605 (App.Div. 1956) (holding that attorneys' fees "in foreclosure proceedings have been regulated by rule of court for the past 50 years" and "the language of the rule is absolute").
New Jersey Rules of Court also govern the award of costs. Rule 4:42-10[6] permits the court or the clerk, as a matter of *358 discretion, to tax as part of the taxable costs all legal fees and reasonable charges necessarily paid or incurred in procuring searches relative to the title of the subject premises, provided that the minimum fee shall be $75 and the maximum fee shall be $500. If, however, 1% of the amount found due plaintiff is more than $75 and less than $500, such 1% shall be the maximum fee.
Plaintiff also cites to New Jersey's Fair Foreclosure Act (FFA), New Jersey Stat. Ann. 2A-.50-53, et seq., as the law that Defendants violated. The Act provides, in relevant part, that if the lender institutes a foreclosure suit, "a debtor shall still have the right to cure the default ..., but that the debtor shall be responsible for the lender's court costs and attorneys' fees in an amount not to exceed that amount permitted pursuant to the Rules Governing the Courts of the State of New Jersey." N.J. Stat. Ann. 2A:50-56(c)(6),(7). Thus, the FFA incorporates the court rules governing the calculation of attorneys' fees and the imposition of costs.
In order to prove her claim that Defendants violated the FDCPA by attempting to collect attorneys' fees and costs not permitted by law, Plaintiff must show that the $2,500 figure does not comply with Rules 4:42-9(4) and 4:42-10. Other than stating that Plaintiffs claim "merely speculates" that their request for fees and costs could not have been $2,500 if the formulas provided by court rule were properly applied, Defendants have not shown beyond doubt that Plaintiff can prove no set of facts in support of her claim that the $2,500 figure is excessive.[7] Consequently, construing the allegations in Plaintiffs Complaint as true, Plaintiff has stated a claim that the Hubschman Defendants attempted to collect attorneys' fees and costs not permitted by law in violation of the FDCPA.
3. Whether Defendants' letter to Plaintiff should have contained a warning as defined by FDCPA
Plaintiff alleges that Defendants' letter failed to include the "mini-Miranda warning" *359 as required by FDCPA. Defendants counter that they did not need to include a warning because, based on the Williams case, they were not debt collectors issuing a demand letter. Defendants also argue that the foreclosure complaintDefendants' "initial communication" with Plaintiffcontained the proper warning.
The relevant FDCPA section provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
...
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
15 U.S.C. § 1692e.[8]
Based on the plain language of the statute, an initial communication from the debt collector, whether oral or in writing, must contain the prescribed warning. Subsequent communications need not include the warning, but must, at a minimum, identify the sender as a debt collector. However, the last phrase of the statute makes clear that neither of these two notices are required if the communication is a formal pleading. This would appear to make common sense in that the filing of a formal pleading should leave no doubt as to the intentions of the debt collector and the purpose behind their communications.
The statute is not clear, however, as to what rule should apply in the circumstances now before the Court; that is, what notice is required in written communications from an alleged debt collector after the filing of a formal action. On the one hand, the statute could be read to require the two warnings where a debt collector seeks to collect a debt prior to the filing of a lawsuit and to otherwise be silent on the issue of post-litigation communications. Under this interpretation, Defendants did not violate the statute by failing to identify themselves as debt collectors because the March 21, 2005 letter came after the filing of the foreclosure action, it clearly related to that lawsuit, and if Congress had intended the warning regime to apply to litigation-related correspondence, it could have chosen to do so in clear language. On the other hand, the statute could be read to require the two warnings in any post-litigation communications so long as the communications were not exempt "formal pleadings."
The Court holds that the former rather than the latter is a more rational interpretation of the statute. First, it is clear that even under the latter interpretation Defendants did not violate § 1692e(ll) when they did not include a "mini-Miranda" in their March 2005 letter to Plaintiff. Whether or not it was a formal pleading, the foreclosure action contained the *360 required warning and subsequent communications needed only to identify the sender as a debt collector. While the March 2005 letter does not include that notice, the Court concludes that, under the circumstances of this case, the notice was not required. Defendants are the same law firm and attorney that filed the foreclosure action against Plaintiff. The letter Defendants sent to Plaintiff was on the law firm letterhead and was sent in connection with the foreclosure action. It is clear to the Court that Congress enacted § 1692e(ll) to protect unsuspecting consumers from debt collectors who do not fully disclose their purpose, methods, and goals. In circumstances such as these, there is little danger that a consumer would be misled by Defendants' statements or confused as to their intentions. The Court holds that where a law firm clearly represents a mortgagee in a foreclosure action against a mortgagor, and has previously issued the required "mini-Miranda" warnings in writing, its subsequent communications with the debtor need not identify the law firm as a debt collector so long as the communication clearly and directly relates to the pending litigation. Consequently, Plaintiffs claim under this section of the FDCPA must be dismissed.
B. New Jersey's Consumer Fraud Act (Counts II and IX against all Defendants)
Plaintiff claims that MERS, Chase, and Hubschman[9] violated New Jersey's Consumer Fraud Act ("CFA"), New Jersey Statute Ann. 56:8-1 et seq., by "having been compelled to pay[ ] in excess of [her] legal obligation to retain [her] property and avoid Sheriffs Sale, and/or had to retain counsel to challenge clearly inaccurate and otherwise illegal impositions and charges, and/or incur additional[] late fees and charges while the improper fees and charges are challenged." [10] (Compl. ¶63; see Compl. ¶93.) Defendants argue that Plaintiffs CFA claim must fail because she lacks standing. In the alternative, Defendants argue that Plaintiffs claim must be dismissed pursuant to Rule 12(b)(6).
The CFA contains its own standing requirement. The CFA provides, "Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act... may bring an action ... in any court of competent jurisdiction." N.J. Stat. Ann. 56:8-19. Thus, the only prerequisite for *361 maintenance of a private action to remedy a violation of the Consumer Fraud Act is that a plaintiff must present a claim of ascertainable loss. Laufer v. U.S. Life Ins. Co. in City of New York, 385 N.J.Super. 172, 896 A.2d 1101, 1110 (2006) (citing Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281 (2002)) (stating that the requirement of an "ascertainable loss" is purely a standing requirement).
The CFA does not define what constitutes an "ascertainable loss," and there is no legislative history "that sheds direct light on those words." See Thiedemann v. Mercedes-Benz USA LLC,872 A.2d 783, 792 (2005) (citation omitted). The New Jersey Supreme Court has instructed, "To give effect to the legislative language describing the requisite loss for private standing under the CFA, ... a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Id. "The certainty implicit in the concept of an `ascertainable' loss is that it is quantifiable or measurable," and in order to raise a genuine dispute, "the plaintiff must proffer evidence of loss that is not hypothetical or illusory." Id.
Here, Plaintiffs foreclosure action was resolved without the court awarding Defendants any of their requested attorneys' fees or costs. When Plaintiff filed her Complaint, her claim was hypothetical, as there was a possibility she would have to pay attorneys' fees and costs in order to resolve the foreclosure action. Now, however, that the foreclosure action has been resolved without her having to pay any attorneys' fees and costs, her claim went from hypothetical to nonexistent. Therefore, Plaintiff was not "compelled to pay in excess of [her] legal obligation" as pled in her Complaint, and because Plaintiff did not pay any attorneys' fees or costs, she has not sustained any ascertainable loss. As a result, Plaintiffs claims under the CFA against all Defendants must be dismissed for lack of standing.
C. Truth-in-Consumer Contract, Notice and Warranty Act ("NJTCCA") (Counts III and X against all Defendants)
The Truth-In-Consumer Contract, Warranty and Notice Act ("NJTCCA"), New Jersey Statute Ann. 56:12-14 to -18, protects consumers by requiring that consumer contracts be clearly written and understandable. Alloway v. General Marine Industries, L.P., 149 N.J. 620, 695 A.2d 264, 274 (1997). The NJTCCA provides, in relevant part:
No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. Consumer means any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes....
N.J. Stat. Ann. 56:12-15. "Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney's fees and court costs."Id. at 56:12-17.
Plaintiff claims that the correspondence between Plaintiff and Defendants constituted "written consumer contracts" or *362 "written consumer notices" under the NJTCCA, and in those contracts/notices, Defendants "demanded collection of sums in excess of that which is permitted under Court Rules." (Compl. ¶¶ 65-67; 95-97.) Defendants again contend that Plaintiff lacks standing, or in the alternative, fails to state a claim.
Similar to Plaintiffs FDCPA claim, the NJTCCA can be violated if a contract or notice simply contains a provision prohibited by state or federal law, and it provides a remedy even if a plaintiff has not suffered any actual damages. Thus, Defendants' argument that Plaintiff lacks standing because she never paid attorneys' fees and costs is inapplicable to her NJTCCA claim. Plaintiffs NJTCCA claims, however, must still withstand Defendants' motion to dismiss.
Plaintiff's Complaint does not contend that her note or mortgage contained provisions that violate state or federal law. Rather, she alleges that "correspondence" between Defendants and herself contained a provision that is prohibited by law, and that correspondence constitutes a written contract or notice under the NJTCCA. As to MERS and Chase, even if they are a "seller, lessor, creditor, lender or bailee," Plaintiff has not alleged that any "contract" or "notice" from MERS or Chase to her contained "any provision that violates any clearly established legal right" of Plaintiff. The only "contract" or "notice" that Plaintiff claims contains an unlawful provision is the letter from the Hubschman Defendants. As a result, the NJTCCA cannot provide Plaintiff with any relief for her claims against MERS and Chase.[11]
With regard to the Hubschman Defendants, even if their letter to Plaintiff constituted a "written contract" or "written notice," [12] the Hubschman Defendants are not a "seller, lessor, creditor, lender or bailee." Even though these terms are not defined in the statute, consistent with traditional canons of statutory construction, analysis of a statute begins with the plain language. Miah v. Ahmed, 179 N.J. 511, 846 A.2d 1244, 1249 (2004). In the absence of contrary legislative intent, such language should be given its ordinary meaning. Id. (citation omitted). When the meaning of the statutory language is clear and unambiguous, the statute must be enforced as written. Id. (citation omitted).
There is no allegation that the law firm or its attorneys acted as a seller, lessor, lender or bailee. Plaintiff argues in its Opposition that the Hubschman Defendants are "creditors" because they demanded in a separate line item that she pay their counsel fees and costs. These fees and costs were to be paid to Chase. She also argues that they are creditors because they demanded payment of a lis pendens discharge fee directly to them. Plaintiffs arguments strain the plain *363 meaning of "creditor" and do not effectuate the purpose of the NJTCCA.[13]
Black's Law Dictionary defines "creditor" as "one to whom a debt is owed; one who gives credit for money or goods." The Hubschman Defendants did not provide legal services to Plaintiff for which she owed a debt directly to them. Rather, pursuant to the Fair Foreclosure Act, court rule, and contract, Chase was entitled to reimbursement of its legal fees, as performed by the Hubschman Defendants, from Plaintiff.[14] Under this argument, the Hubschman Defendants would be considered the creditor of Chase. Plaintiffs argument is untenable.
Furthermore, Plaintiff is not a consumer as she relates to the Hubschman Defendants. "Consumer" is defined by the NJTCCA as "any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes." N.J. Stat. Ann. 56:12-15. Plaintiff did not buy, lease, borrow or bail any service from the Hubschman Defendants. To the contrary, the Hubschman Defendants were adverse to Plaintiff. Consequently, because the Hubschman Defendants are not a "creditor" under the Act, and Plaintiff is not a "consumer" under the Act, Plaintiffs NJTCCA claim must be dismissed for failure to state a claim.
D. Fair Foreclosure Act ("FFA") (Counts V and XII against all Defendants)
Plaintiff has also asserted a claim against MERS, Chase and the Hubschman Defendants for a breach of an implied statutory cause of action under the Fair Foreclosure Act ("FFA"), New Jersey Statute Ann. 2A:50-53 et seq. Plaintiff claims that she "has been damaged by violations of the Fair Foreclosure Act by having to pay excessive counsel fee payments and/or costs associated with the foreclosure and/or by incurring additional late fees and/or late charges during the course of disputing excessive fees and/or costs." (Compl. ¶¶78; 110.) Defendants move to dismiss this claim for Plaintiffs lack of standing, or in the alternative, Plaintiffs failure to state a claim under the Act.
In order to defeat Defendants' argument that Plaintiff lacks standing, Plaintiff must show that she suffered an injury for which the FFA can provide a remedy. The parties dispute whether an implied cause of action exists under the FFA. Prior to determining that issue, however, Plaintiff must have alleged a concrete and particularized injury. Plaintiff claims that Defendants' violation of the FFA caused her to be damaged by having to pay excessive attorneys' fees and costs in Defendants' foreclosure action against her. The foreclosure action has been resolved, and Plaintiff did not have to pay any attorneys' fees and costs. Thus, even if the FFA did provide an implied cause of action, Plaintiff has not sustained any injury that could be remedied by the FFA. As a result, Plaintiffs FFA claim fails.
E. RICO (Counts XIV against all Defendants)
Plaintiff has asserted claims against MERS, Chase and the Hubschman Defendants *364 for civil offences involving organized crime and organized crime activities (racketeering) pursuant to New Jersey Statute Ann. 2C:41-1 et seq. ("NJRICO"). Again, Defendants have moved to dismiss these claims for lack of jurisdiction or, in the alternative, failure to state a claim.
New Jersey's RICO statute allows civil remedies to address prohibited activities. See N.J. Stat. Ann. 2C:41-4. NJRICO prohibits four categories of activities:
a. It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which he has participated as a principal within the meaning of N.J.S. 2C:2-6 to use or invest, directly or indirectly, any part of the income, or the proceeds of the income, in acquisition of any interest in, or the establishment or operation of any enterprise which is engaged in or the activities of which affect trade or commerce....
b. It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in or activities of which affect trade or commerce.
c. It shall be unlawful for any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
d. It shall be unlawful for any person to conspire as defined by N.J.S. 2C:5-2, to violate any of the provisions of this section.
N.J. Stat. Ann. 2C:41-2.
NJRICO specifically defines what constitutes "unlawful debt," "a pattern of racketeering activity," and "racketeering activities." "Unlawful debt" means "debt (1) Which was incurred or contracted in gambling activity which was in violation of the law of the United States, a state or political subdivision thereof; or (2) Which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury." N.J. Stat. Ann. 2C:41-l(e). A pattern of racketeering activity requires "(1) Engaging in at least two incidents of racketeering ... and (2) A showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents." Id. at 2C:41-1 (d).
"Racketeering activities" means numerous crimes, including fraudulent practices and all crimes defined in chapter 21 of Title 2C of the New Jersey Statutes. Id. at 2C:41-l(o). Plaintiff alleges that Defendants violated 2C:21-7(h) (deceptive business practice of making "a false or misleading written statement for the purpose of obtaining property or credit"), 2C:21-4(b)(l)("Issuing a false financial statement. A person is guilty of issuing a false financial statement, a crime of the third degree, when, with purpose to deceive or injure anyone or to conceal any wrongdoing; he by oath or affirmation:(l) Knowingly makes or utters a written instrument which purports to describe the financial condition or ability to pay of some person and which is inaccurate in some substantial respect...."), 2C:21-19(a)(2) ("Criminal usury. A person is guilty of criminal usury *365 when not being authorized or permitted by law to do so, he: ... (2) Takes, agrees to take, or receives any money or other property as interest on the loan or on the forbearance of any money or other interest in excess of the maximum rate permitted by law."). Plaintiff also alleges RICO violations under 18 U.S.C. § 1341 ("Frauds and swindles" through the mail), 18 U.S.C. § 1343 ("Fraud by wire, radio, or television"), and 18 U.S.C. § 1951 ("Interference with commerce by threats or violence").
Plaintiffs RICO claims fail for numerous reasons. First, Plaintiff has alleged no set of facts that Defendants engaged in any sort of collection of an unlawful debt as defined by NJRICO. Second, the racketeering activities that Plaintiff contends Defendants conducteddeceptive business practices, issuing false financial statements, criminal usury, fraud through the mail and wire, and interference with commerce by threats and violenceare similarly unsupported by any alleged facts. Further, to the extent that any of these claims require that Plaintiff show she actually paid the alleged excessive fees, they fail for lack of a redressable injury. Consequently, Plaintiffs claims based on NJRICO must be dismissed.[15]
F. Breach of implied covenant of good faith and fair dealing under New Jersey law (Count IV against MERS and Chase)
Plaintiff has alleged that Defendants MERS and Chase breached the implied covenant of good faith and fair dealing because they "had a duty to insure that all sums collected as they pertain to the contract were legally due," and they "failed to insure the proper sums were collected and/or attempted to be collected." (Compl.¶¶72-73.) MERS and Chase have moved for dismissal of this claim for Plaintiffs lack of standing, and MERS has moved for the alternative relief to dismiss for failure to state a claim.
New Jersey courts have long recognized that there is an implied covenant of good faith and fair dealing in every contract. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 690 A.2d 575, 587 (1997). Such duty is grounded on the fundamental principle that in every contract there is an implied covenant that neither party shall commit any act which shall destroy or injure the rights of the other party to enjoy the fruits of the contract. Id. This implied duty of fair dealing does not alter the terms of a written agreement, however. Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 605 A.2d 681, 692 (1992).
New Jersey case law has recognized the potential for such an independent cause of action based upon the covenant of good faith and fair dealing in three situations: (1) to allow the inclusion of additional terms and conditions not expressly set forth in the contract, but consistent with the parties' contractual expectations; (2) to allow redress for a contracting party's bad-faith performance of an agreement, when it is a pretext for the exercise of a contractual right to terminate, even where the defendant has not breached any express term; and (3) to rectify a party's unfair exercise of discretion regarding its contract performance. Seidenberg v. Summit Bank, 348 N.J.Super. 243, 791 A.2d 1068,1077 (2002).
MERS and Chase's motion to dismiss for lack of standing must be denied because Plaintiff has alleged that they had *366 an implied duty to insure that proper attorneys fees were collected or attempted to be collected. Plaintiffs contention that Defendants had a duty to insure the propriety of any attempt to collect attorneys fees negates Defendants' argument that Plaintiff needed to have actually paid such fees. Therefore, to the extent that such an implied duty can be read into the contract, Plaintiff has asserted an injury sufficient to confer standing.
In addition to its motion to dismiss based on Plaintiffs lack of standing, MERS argues that this claim should be dismissed against it because Plaintiffs Complaint does not contain a single factual allegation of conduct by MERS relating to Plaintiff. Plaintiff alleges that MERS is "a mortgage services, account manager or otherwise provides mortgage related services." (Compl.¶ c.) She also alleges that she is a mortgager who had her loan serviced by Chase, and "the allegedly illegal counsel fees imposed upon her arose from a foreclosure initiated against her by" MERS. (Id. ¶22.) Plaintiff has not alleged any contractual relationship between MERS and herself. In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing. See Noye v. Hoffmann-La Roche Inc., 238 N.J.Super. 430, 570 A.2d 12, 14 (1990). Consequently, Plaintiffs claim against MERS must be dismissed.
Chase has not moved to dismiss this claim for any reason other than standing. Unlike the Court's sua sponte dismissal of Plaintiffs NJTCCA claim, this claim, however, cannot be dismissed without a motion by Chase. Taking all of Plaintiffs allegations as true and making all inferences favorable to her, Plaintiff may have asserted a viable claim against Chase for the breach of its implied duty to insure that the proper sums were attempted to be collected. The Court issues no opinion on whether that claim will survive a motion to dismiss by Chase, but Plaintiff must have the opportunity to defend her claim because at this time it cannot be definitively determined that Plaintiff has no viable claim against Chase under this theory.
G. Fraud under New Jersey law (Count VI against Hubschman Defendants)
Plaintiff alleges that the Hubschman Defendants "knowingly participated in defrauding" Plaintiff "when they charged excessive sums for attorney[s'] fee[s] when not permitted to do so by law," and that they "knew that when they demanded and/or received excessive attorney[s'] fees that these[] sums collected and/or demanded were improper." (Compl.¶¶80-81.) Defendants have moved to dismiss Plaintiffs claim based on standing or for her failure to state a claim upon which relief can be granted.
Defendants' motion to dismiss based on standing must be granted because even though Plaintiff has alleged that Defendants defrauded her when they demanded excessive attorneys' fees, the fact that she did not actually pay any attorneys' fees defeats her alleged injury.
In order to succeed in an action for common law fraud, a plaintiff must show: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350, 367 (1997) (citing Jewish Ctr. Of Sussex County v. Whale, 86 N.J. 619, 432 A.2d 521, 524 (1981)). "Misrepresentation and reliance are the hallmarks of any fraud claim, and a fraud cause of action fails without them." Banco Popular North America v. Gandi, 184 N.J. 161, 876 A.2d *367 253, 261 (2005) (citations omitted). The New Jersey Supreme Court elaborated:
Although the word "fraud" is used in common parlance to connote any practice involving shady or underhanded dealing, in the law it is a term of art with a clear definition. We hold that an amorphous [] fraud claim that requires plaintiffs to prove neither reliance nor misrepresentation does not exist in New Jersey. We conclude, as well, that its absence will wreak no injustice on litigants in this State.
Id. Further, "a false representation made to a person who knows it to be false is not in legal estimation a fraud." Golden v. Northwestern Mut. Life Ins. Co., 229 N.J.Super. 405, 551 A.2d 1009, 1014 (1988).
Here, Plaintiff cannot prove reliance on Defendants' alleged false misrepresentation, and she cannot prove an injury as a result of that reliance. Plaintiff claims that Defendants knew that their attorneys' fees and costs were excessive at the time they "demanded" them. Even though this allegation could meet the first two elements of a common law fraud claimthat Defendants made a material representation of fact that they intended Plaintiff to rely onPlaintiff has not alleged how she relied on this demanded sum to her detriment. Plaintiff may contend that Defendants' demand was "shady or underhanded," but nothing in her Complaint can be construed as Plaintiff having relied on that demand since she never paid the requested fees. Indeed, inherent in the fact that she did not pay any attorneys' fees and costs when Defendants "demanded" them is that she knew the demand was improper. Consequently, because Plaintiff has not alleged that she relied on the alleged misrepresentation, and no set of facts in her Complaint can be construed to prove that she did rely on the misrepresentation, her common law fraud claim against the Hubschman Defendants must be dismissed.
H. Negligent misrepresentation under New Jersey law (Count VII against Hubschman Defendants)
Plaintiff alleges that the Hubschman Defendants were under a duty to treat Plaintiff "within the bounds of expecting" that Plaintiff would reasonably rely on the representation these Defendants made to them, and that "Defendants negligently misrepresented the proper sums collected and/or attempted to be collected." (Compl.¶¶ 84-85.) Defendants have moved to dismiss Plaintiffs claim based on standing or for her failure to state a claim upon which relief can be granted.
Similar to her fraud claim, Plaintiff does not have standing to assert her negligent misrepresentation claim as alleged in her Complaint. Even though Plaintiff claims that Defendants negligently misrepresented the sums they "attempted" to collect, the fact that she did not actually pay those fees is fatal to her standing to bring such a claim. To establish a claim for negligent misrepresentation, a plaintiff must show "`[a]n incorrect statement, negligently made and justifiably relied on, which results in economic loss.'" Konover Const. Corp. v. East Coast Const. Services Corp., 420 F. Supp. 2d 366, 370 (D.N.J.2006) (quoting McClellan v. Feit, 376 N.J.Super. 305, 870 A.2d 644, 648 (2005) (citation omitted)). The "actual receipt and consideration of any misstatement remains central to the case of any plaintiff seeking to prove that he or she was deceived by the misstatement or omission." Kaufman v. i-Stat Corp., 165 N.J. 94, 754 A.2d 1188, 1195-96 (2000). Negligent misrepresentation is easier to prove than fraud because it does not require scienter as an element. Id.
Even though Defendants could be liable for requesting improper fees even if they *368 did not know they were improper, it is Plaintiff's burden to prove reliance or economic loss. Again, because she did not pay the allegedly improper attorneys' fees and costs, Plaintiff cannot show that she relied on or was injured by Defendants' "misstatement." As a result, without any injury, Plaintiff does not have standing to assert this claim.
I. Tortious interference with contract under New Jersey law (Count XI against Hubschman Defendants)
Plaintiff claims that the Hubschman Defendants intentionally and maliciously interfered with her mortgage contract with Chase and MERS in order to "secure benefits that accrued to them in the [ ] form [of] higher fees and payments." (Compl.¶ 104.) Plaintiff claims that she has been injured by "having been compelled to pay[ ] in excess of [her] legal obligation to retain [her] property and avoid Sheriffs Sale."[16](Id, ¶103.) Defendants have moved to dismiss Plaintiffs claim based on standing or for her failure to state a claim upon which relief can be granted.
Defendants' motion to dismiss for lack of standing must be granted because Plaintiff has not suffered the injury she claims. Plaintiffs claimed injury is that she was compelled to pay attorneys' fees and costs in excess of her legal obligation to retain her property and avoid Sheriffs sale. She did not pay any attorneys' fees or costs. Without any redressable injury, Plaintiff is prohibited from maintaining such a claim.[17]
J. Accounting and refund (Counts I and VIII against all Defendants) and Injunction (Count XV against all Defendants)
Finally, Plaintiff requests an injunction and "accounting and refund" for all Defendants. Plaintiffs claim for an "accounting and refund" is not an independent cause of action, but it will be construed to request injunctive relief because Plaintiffs injunction count contains the same request.
As a result of the above analysis, the only claims remaining in Plaintiffs Complaint are Count XIII against the Hubschman Defendants under the Fair Debt Collection Practices Act and Count IV against Chase for a breach of the implied covenant of good faith and fair dealing. There are no remaining claims against MERS. To the extent that the equitable remedy of injunctive relief is available to Plaintiff if she is successful in her claim against Chase for its breach of the implied covenant of good faith and fair dealing and/or her claim against the Hubschman Defendants for a violation of the FDCPA, Count XV will not be dismissed.
III. PLAINTIFF'S MOTION TO RMAND
The Chase Defendants removed this action to this Court pursuant to 28 U.S.C. § 1331 based on Plaintiffs federal FDCPA claim against the Hubschman Defendants. Plaintiff has filed a motion seeking remand of her case.[18]
*369 Plaintiff has asserted four arguments to support her motion. First, Plaintiff argues that removal was improper because MERS and the Hubschman Defendants did not formally consent to removal. Second, Plaintiff contends that remand is warranted because state law claims and issues predominate the action. Third, Plaintiff argues that the sole federal claim is ancillary to the entire case and wholly dependent upon determinations of state law. Finally, Plaintiff argues that the federal claim affects only a limited portion of the total body of claimants.
As a primary matter, the Chase Defendants' removal was proper. Chase did not need consent from the other defendants prior to removal because they had not yet been served. See 28 U.S.C. § 1446(b); Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.1995) (rule of unanimity may be disregarded when any non-resident defendant has not been served at the time the removing defendants filed their petition).
With regard to Plaintiffs other three arguments for remand, they are unsupportable now that only her federal claim and one state law claim remain in the action. Moreover, because the Court has original jurisdiction over Plaintiffs FDCPA claim, remand of that claim is prohibited. See 28 U.S.C. § 1367(c); Borough of West Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir.1995) (stating that "nothing in § 1367(c) authorizes a district court to decline to entertain a claim over which is has original jurisdiction"). The only claim available for remand it Plaintiffs state law claim against Chase for breach of implied covenant of good faith and fair dealing, and the Court will exercise its discretion to extend supplemental jurisdiction over the state law claim because it is so related to the federal claim that it forms part of the same case or controversy, see 28 U.S.C. § 1367(a), and because judicial economy would not warrant two separate proceedings in state and federal court on these interrelated claims.
IV. CONCLUSION
Plaintiff's claim under the Fair Debt Collection Act, 15 U.S.C. §§ 1692(f), against the Hubschman Defendants (Count XIII) survives their motion to dismiss based on lack of subject matter jurisdiction and failure to state a claim. Plaintiffs claim under New Jersey state law for the breach of the implied covenant of good faith and fair dealing against the Chase Defendants (Count IV) survives their motion to dismiss for lack of subject matter jurisdiction. Plaintiffs request for injunction (Count XV) remains to the extent that injunctive relief is available to Plaintiff for her two surviving claims. All other counts are dismissed for the reasons expressed above. Plaintiffs motion for remand is denied. An appropriate Order will issue.
NOTES
[1] Defendant American Residential Mortgage was terminated from the case on June 27, 2006.
[2] Even though Plaintiff has asserted both overlapping and different claims against the various Defendants, the basis for their motions to dismiss pursuant to Rule 12(b)(1) is the same. The Hubschman Defendants and MERS have moved, in the alternative, for dismissal of Plaintiff's claims against them pursuant to Rule 12(b)(6). Chase has not moved for the alternative relief.
Defendants also filed motions to dismiss based on alternative relief under the doctrines of ripeness and abstention due to the concurrently pending foreclosure action in state court. Because the foreclosure action has been resolved, those arguments are moot.
[3] The FDCPA damages provision also provides for particular damages in the case of a class of plaintiffs. 15 U.S.C. § 1692k(a)(2)(B). It also permits a court to award reasonable attorneys' fees and the costs of the action. Id. § 1692k(a)(3).
[4] Curiously, neither party cites to or discusses Heintz in their submissions.
[5] 4:42-9. Counsel Fees
(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except
(4) In an action for the foreclosure of a mortgage, the allowance shall be calculated as follows: on all sums adjudged to be paid the plaintiff amounting to $5,000 or less, at the rate of 3.5%, provided, however, that in any action a minimum fee of $75 shall be allowed; upon the excess over $5,000 and up to $10,000 at the rate of 1.5%; and upon the excess over $10,000 at the rate of 1%, provided that the allowance shall not exceed $7,500. If, however, application of the formula prescribed by this rule results in a sum in excess of $7,500, the court may award an additional fee not greater than the amount of such excess on application supported by affidavit of services. In no case shall the fee allowance exceed the limitations of this rule.
[6] 4:42-10. Search Fees
(a) Fees Allowable. In an action for the foreclosure of a mortgage or tax certificate or for partition and sale of realty, the court or the clerk may, as a matter of discretion, tax as part of the taxable costs all legal fees and reasonable charges necessarily paid or incurred in procuring searches relative to the title of the subject premises, provided that the minimum fee shall be $75 and the maximum fee shall be $500. If, however, 1% of the amount found due plaintiff is more than $75 and less than $500, such 1% shall be the maximum fee. In tax foreclosure actions brought to foreclose tax sale certificates on more than one parcel, the fees herein prescribed shall apply to each separate parcel, except, however, that in tax foreclosure actions pursuant to R. 4:64-7, the fee shall be $75 for each separate parcel, and the maximum fee herein prescribed shall not apply. The court or the clerk may also authorize inclusion of all legal fees and charges necessarily incurred for searches required for unpaid taxes or municipal liens and for searches required to enable the officer making public sale to insert in the notices, advertisements and conditions of sale, a description of the estate or interest to be sold and the defects in title and liens or encumbrances thereon, as authorized by law. (b) Affidavit of Fees; Limitations. Fees for searches shall not be taxed, unless prior to the taxing thereof the plaintiff or plaintiff's attorney has filed an affidavit setting forth an itemized statement of the fees and charges for which taxation is asked, and including only such fees and charges as were actually and necessarily paid or incurred for the purpose of the action. Without court order no search fees shall be certified or taxed for searches respecting the state of the title or encumbrances thereon prior to the commencement of the co-tenancy in partition actions, or prior to the date of the mortgage in foreclosure actions. In tax foreclosures where the plaintiff is other than a municipality a notice similar to that required by R. 4:42-9(a)(5) shall be sent where search fees are to be applied for.
[7] In her Opposition, Plaintiff provides her own calculations of the maximum attorneys' fees and costs that Defendants could have demanded. The Court will not consider Plaintiff's calculations because Defendants' motion to dismiss is not being converted into a summary judgment motion.
[8] Congress amended this portion of the FDCPA in 1996, and eliminated language which required that the warning be included in every communication between a debt collector and a consumer. See Goldman v. Cohen, 445 F.3d 152, 156 (2d Cir.2006); cf. Dutton v. Wolpoff and Abramson, 5 F.3d 649, 656 (3d Cir. 1993) (interpreting prior language of statute and holding that the statute "can be read to require" the warning in every communication with a debtor).
[9] Plaintiff informed the Court that she stipulates to the dismissal of her CFA claim against the Hubschman Defendants because the Act is inapplicable to attorneys acting in their professional capacities. The Hubschman Defendants did not oppose Plaintiff's offer, but no stipulation has been filed. To the extent that Plaintiff's CFA claim against the Hubschman Defendants remains pending, the analysis of Plaintiff's CFA claim against the other Defendants applies to Hubschman as well.
[10] Plaintiff's claim that she suffered damages for having to hire counsel to contest the improper attorney's fees expended to establish the adversary's liability. In re Estate of Lash, 169 N.J. 20, 776 A.2d 765, 771 (2001); see also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) (holding that under the "American Rule," all parties to litigation are responsible for bearing the cost of their own attorneys, and any deviation from this general concept must be based on specific statutory authorization or some other longstanding exception to the rule). At the conclusion of this litigation, if Plaintiff is successful on any of her claims, she may be awarded attorneys' fees and costs as part of her damages, but her expenditure of hiring an attorney to prosecute her case cannot constitute "an injury" for any of her claims for which she seeks relief.
[11] Even though Chase has not moved for dismissal of Plaintiff's claims pursuant to Rule 12(b)(6), a "district court may on its own initiative enter an order dismissing the action provided that the complaint affords a sufficient basis for the court's action." Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir.1980) (holding that it is not error for a district court to dismiss a claim sua sponte, but "because judgment on the pleadings results in an early assessment of the merits of plaintiff's action, the plaintiff must be given the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn"). Here, nowhere in Plaintiff's Complaint does she allege that any document between Chase and Plaintiff contained a provision in violation of law.
[12] The letter would not qualify as a "consumer contract" as it is defined by the statute. See N.J. Stat. Ann. 56:12-1. The statute does not define "written notice," and no case law addresses the issue.
[13] There is no legislative history available for the NJTCCA, but one New Jersey court stated that it is "known as the lemon law' pertaining to the purchase of an automobile or motorcycle." D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 501 A.2d 990, 997 (1985).
[14] The right to a fee in a foreclosure action "emanates from the fact that mortgage loans, as a matter of course, place specific contractual obligations on the mortgagor to bear the fees incurred by the mortgagee upon the need to foreclose or collect." Stewart Title Guaranty Company v. Lewis, 347 N.J.Super. 127, 788 A.2d 941, 945 n. 8 (2001).
[15] Instead of dismissal, Plaintiff seeks leave to amend her Complaint to cure any deficiencies. Because the dismissal of her claims is without prejudice, there may be avenues available for Plaintiff under the Federal Rules of Civil Procedure to effectuate her request.
[16] Plaintiff again improperly claims as damages the counsel fees to challenge this issue. See supra note 10.
[17] The elements of a claim for tortious interference with contractual relations are: "(1) the existence of the contract (or the prospective economic relationship); (2) interference which was intentional and with malice; (3) the loss of the contract or prospective gain as a result of the interference; and (4) damages." See Velop, Inc. v. Kaplan, 301 N.J.Super. 32, 693 A.2d 917, 926 (1997).
[18] The Hubschman Defendants have joined Chase's Opposition to Plaintiff's motion to remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431623/ | 734 S.W.2d 699 (1987)
Charles D. WILLIAMS, Appellant,
v.
UNION CARBIDE CORPORATION, Appellee.
No. 01-86-607-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 21, 1987.
Rehearing Denied July 23, 1987.
*700 William G. Neumann, Jr., Krist, Gunn, Weller, Neumann & Morrison, Houston, for appellant.
Kay L. Burkhalter, Baker & Botts, Rick Gibson, Baker & Botts, Houston, for appellee.
Before SMITH, COHEN and DUGGAN, JJ.
OPINION
DUGGAN, Justice.
Based on a jury verdict, the trial court entered a take-nothing judgment in a premises liability suit. Appellant, Charles D. Williams ("Williams"), was an employee of Bechtel Corporation ("Bechtel"), a contractor doing repairs at a plant operated by the appellee, Union Carbide Corporation ("Union Carbide").
Williams was injured when the sheet of grating on which he was standing collapsed after his co-worker, a fellow Bechtel employee, removed the adjacent sheet of grating. The grating on which Williams was standing was supported, in part, by a piece of angle iron that was welded to the bottom of the adjacent grate.
Williams sued Union Carbide for personal injuries sustained from his fall. He contended that Union Carbide was negligent in failing to properly support the grating that collapsed, in failing to properly inspect the grating, and in failing to warn him of the dangerous condition that was created by the improperly supported grating.
Union Carbide denied that the grates were improperly supported and claimed that Williams was negligent by failing to reasonably inspect the grates in question before attempting to remove them.
The jury returned affirmative findings of negligence and proximate cause against both Williams and Union Carbide, found Williams to be 64% negligent and Union Carbide to be 36% negligent, and assessed damages in favor of Williams against Union Carbide in the amount of $84,000. Based on the negligence apportionment, the trial court entered a take-nothing judgment in favor of Union Carbide. Tex.Civ. Prac. & Rem.Code Ann. sec. 33.001 (Vernon 1986).
By his first and second points of error, Williams asserts that the trial court abused its discretion in allowing the testimony of John Payne, Bechtel's employee, who, at the time of the accident, was a construction superintendent on another project for Bechtel at Union Carbide. He later worked as a site manager and finally as a safety director for Bechtel at Union Carbide.
Williams' interrogatories requested the names of all expert witnesses to be called at trial. Union Carbide did not list Payne's name in its initial response, nor did it supplement *701 its responses prior to trial.[1] Williams contends that exclusion of Payne's testimony was mandatory under Tex.R.Civ.P. 166b and 215(5), because Union Carbide failed to establish good cause sufficient to require its admission.
Tex.R.Civ.P. 215(5) provides that:
A party who fails to supplement seasonably his response to a request for discovery in accordance with paragraph five of Rule 166b shall not be entitled to present evidence which the party was under a duty to provide in a supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter when the information required by Rule 166b concerning the witness has not been disclosed, unless the trial court finds that good cause sufficient to require admission exists.
Failure to supplement automatically results in the loss of the opportunity to present the witness' testimony, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986), unless the trial court finds good cause that requires admission of the testimony. An evidentiary finding of good cause is the only basis for allowing the testimony to be presented. Id. at 298; Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243 (Tex.1985).
In the instant case, Payne's testimony should have been excluded unless Union Carbide showed, and the trial court found, good cause sufficient to compel its admission. Walsh v. Mullane, 725 S.W.2d 263 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.).
Here, as in Walsh, the trial court overruled appellant's objection and allowed the testimony on the basis that Union Carbide's attorney did not know of Payne's knowledge of the type of grating in issue until two days before counsel offered his testimony. We adhere to our holding in Walsh that this is insufficient to establish good cause, because it is the party's burden, not the attorney's, to answer the interrogatories and to supplement them as discovery unfolds. Id. at 264; Tex.R.Civ.P. 168. While the attorney may not have known of Payne's knowledge, Union Carbide knew of Payne's existence and of his expertise in construction matters for well over two years prior to trial. During that time period, Payne was employed by Bechtel at Union Carbide in various managerial capacities, and had gathered evidence for the trial at Union Carbide's request.
Thus, the record shows that Union Carbide knew or should have known of Payne's potential as an expert witness. It cannot now claim want of knowledge as the basis for allowing his testimony.
We also reject Union Carbide's contention that the error was harmless because the testimony was cumulative. Brewer v. Isom, 704 S.W.2d 911 (Tex.App. Dallas 1986, no writ). Although another witness testified that he had seen similar grating used at other locations in the Union Carbide plant and at the Amoco plant in the Texas City area, he did not testify to a similar practice in the industry generally. No other evidence of the custom, standard, and practice throughout the industry was presented, except Payne's testimony. Moreover, Payne was a surprise witness who testified on the most controverted issue in the case. His testimony was presented late in the trial, after Williams had presented his evidence and rested his case.
We overrule Union Carbide's contention that such error is harmless because appellant failed to seek a continuance, or an opportunity to depose the witness, or time to locate additional witnesses. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439 (Tex.1984), on which Union Carbide relies, *702 was decided under versions of rules 166 and 215 that have been repealed. Both Morrow, 714 S.W.2d at 297, and Walsh, 725 S.W.2d at 263, clearly hold (a) that the exclusion of the testimony of an undisclosed witness is automatic unless good cause is shown, and (b) that there is no need for the opponent to seek a continuance or other relief from the trial court.
Union Carbide also argues that any error was harmless in that the jury knew that Payne was a paid and interested witness because his salary and job depended on his employer's client, Union Carbide, and that the jury was aware of this, thereby decreasing his stature and the emphasis to be given to his testimony. Williams, on the other hand, argues that Payne's positions, first as construction superintendent, then as site manager, and finally as safety director for Bechtel at Union Carbide, increased his stature in the jury's eyes. Further, Williams argues, the fact that Payne worked for Williams' own employer in managerial capacitiesbut testified on behalf of Union Carbidemust have been damaging to Williams' cause.
We hold that the trial court erred in allowing Payne's testimony, and that error was reasonably calculated to and probably did result in the rendition of an improper judgment. Williams' first and second points of error are sustained.
Because the cause is remanded for new trial, we consider Williams' third and fourth points of error, in which he asserts that the trial court erred in admitting evidence of his employer's negligence. He argues that such evidence was immaterial and irrelevant, or in the alternative, that its probative value was substantially outweighed by the dangers of confusion of the issues, misleading of the jury, and unfair prejudice.
Williams contends that evidence of the employer's negligence may not be considered in a third-party negligence action brought by an employee arising out of an accidental injury covered by worker's compensation insurance. He cites Varela v. Am. Petrofina Co. of Texas, Inc., 658 S.W.2d 561 (Tex.1983), as his authority.
Varela was an action brought by an employee arising out of an accidental injury covered by worker's compensation insurance. The court held that an employer's negligence could not be considered in a third-party negligence action for the purpose of reducing the third party's damages.
In that case, evidence was presented to the jury of the negligence of that plaintiff, the employer, and the defendant third party. In response to a special issue, the jury apportioned the negligence among all three. The defendant third party argued that the employer's negligence should be taken into account to reduce the amount of damages found by the jury by the proportion of the employer's negligence, pursuant to Tex.Civ.Prac. & Rem.Code Ann. sections 33.001, 33.011-017 (Vernon 1986), which govern the liability of joint tortfeasors.
The Texas Supreme Court held that a defendant's claim of contribution is derivative of the plaintiff's right to recover from a joint defendant against whom contribution is sought, and that because an employee is precluded from suing his employer by the Worker's Compensation Act, Tex.Rev. Civ.Stat.Ann. art. 8306 § 3 (Vernon Supp. 1987), a defendant is therefore barred from seeking contribution from the employer. The court held that article 8306 § 3 is an exception to sections 33.001, 33.011-017.
Varela is applicable only with respect to the entry of a judgment. It does not expressly preclude evidence of an employer's negligence at trial. It holds that if an employer in a third-party negligence action concurrently causes an injury to a plaintiff/worker, the negligent third party will be responsible for the plaintiff's total damages, diminished only by the proportionate amount of negligence assessed against the plaintiff. This is because the employer has a legislatively authorized exemption from joint and several liability to an injured workman under the Texas Worker's Compensation Act. Varela does not relieve the defendant third party from his joint and several liability under sections 33.001, 33.011-017. *703 Williams argues that the evidence of his employer's negligence is not relevant to any controlling issue in the case. Union Carbide claims that the evidence is relevant to the issue of causation, and that it is entitled to demonstrate to the jury that the employer's and/or co-worker's negligence was a cause of the accident.
Union Carbide cites Warren Brothers Co. v. A.A.A. Pipe Cleaning Co., 529 S.W.2d 779, 781 (Tex.Civ.App.Houston [1st Dist.] 1975, writ ref'd n.r.e.), which states that under a general denial the defendant is entitled to introduce evidence that tends to disprove the facts alleged in the plaintiff's petition, and to rebut evidence offered by the plaintiff in support of its petition.
Union Carbide denied that it was negligent and that its actions were the proximate cause of Williams' injuries. It was entitled to assert that Williams' injuries were the result of the negligence of a third person or party, whether or not that person or party was named in the suit. The defendant was not restricted to the denial of its own negligence, but was entitled to make an effort to exculpate itself of primary negligence. Deal v. Madison, 576 S.W.2d 409, 423 (Tex.Civ.App.Dallas 1978, writ ref'd n.r.e.), overruled on other grounds, Cypress Creek Util. Serv. Co. v. Muller, 640 S.W.2d 860, 866 (Tex.1982).
In the alternative, Williams contends that, though relevant, the evidence should have been excluded because the probative value of the evidence of his employer's conduct was substantially outweighed by its propensity to mislead or confuse the jury. He urges that it is more likely than not that the jury attributed the conduct of his employer and/or co-worker to him rather than to Union Carbide, thus resulting in the rendition of an improper assessment of the percentages of negligence as between himself and Union Carbide, and consequently in an improper judgment.
Generally, relevant evidence should not be excluded without good cause. Davis v. Davis, 521 S.W.2d 603, 607 (Tex.1975). In weighing the probative value of evidence against the dangers of unfair prejudice, confusion of the issues, or misleading of the jury, the courts apply a balancing test. Perez v. Baker Packers, 694 S.W.2d 138 (Tex.App.Houston [14th Dist.] 1985, writ ref'd n.r.e.); Tex.R.Evid. 403. The admission of relevant evidence in the application of the balancing test is a matter within the trial court's discretion. Charter Medical Corp. v. Miller, 605 S.W.2d 943 (Tex.Civ. App.Dallas 1980, writ ref'd n.r.e.). The court's determination of admissibility is subject to reversal only for an abuse of that discretion.
We find that the evidence of Williams' employer's misconduct was relevant to Union Carbide's denial of causation. Thus, the evidence that the employer's and/or co-worker's acts might have been the cause of Williams' injuries has substantial probative value.
Williams has failed to show that the jury imputed his employer's and/or co-worker's negligence to him. There was ample evidence presented from which the jury could have concluded that Williams was 64% negligent. The evidence was not so inherently prejudicial as to compel its exclusion, and we are unable to say that the trial court abused its discretion in allowing its admission. Williams' third and fourth points of error are overruled.
By his fifth point of error, Williams asserts that the trial court erred in submitting Special Issue No. 3(B).
At trial, Williams specifically and distinctly objected only to sub-paragraph (A) of Special Issue No. 3. Where a party fails to object to the wording of one sub-part of a special issue, he fails to preserve error for appeal. Reed v. Israel Nat'l Oil Co., 681 S.W.2d 228 (Tex.App.Houston [1st Dist.] 1984, no writ). A party is confined to the grounds of objection stated in the trial court, and will not be able to enlarge his complaint on appeal Perez v. Baker Products, 694 S.W.2d at 141-142. Appellant has waived any complaint regarding the wording of Special Issue No. 3(B). Appellant's fifth point of error is overruled.
*704 The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
NOTES
[1] We reject Union Carbide's contention that Payne was a fact witness and therefore not subject to discovery under the wording of the instant interrogatories. Payne was not present when the accident occurred, was not the superintendent of the project on which Williams worked, and had no knowledge of the condition of the grating in question. Rather, based on having worked in plants throughout the United States and Canada, he testified that he had seen grating in many plants similar to that in the instant case. Payne was clearly testifying as an expert on industry custom and not as a fact witness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431698/ | 575 S.W.2d 401 (1978)
STATE of Texas ex rel. Hugh RUSSELL, Appellant,
v.
Kerry KNORPP, Appellee.
No. 8957.
Court of Civil Appeals of Texas, Amarillo.
December 20, 1978.
Rehearing Denied January 15, 1979.
*402 Thomas A. Curtis, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, for appellant.
George E. Gilkerson, Lubbock, Kerry R. L. Knorpp, Amarillo, for appellee.
REYNOLDS, Justice.
Unsuccessful in its trial court action to remove the Potter County Attorney from office for alleged official misconduct, the State of Texas appeals from a take-nothing judgment rendered on a jury verdict. Because the judgment must be sustained on a theory of law peculiarly applicable to this action, we affirm.
The State of Texas, acting through the district attorney of the 47th Judicial District upon the relation of Hugh Russell and by the authority of Tex.Rev.Civ.Stat.Ann. arts. 5970, et seq. (Vernon 1962),[1] instituted this action of 10 August 1977, seeking to remove Kerry Knorpp from the office of county attorney of Potter County for alleged acts of official misconduct. As its pleadings were cast for trial, the state alleged the specifics of twenty-four occasions from 17 November 1974 to 21 April 1976 on which it averred that Knorpp received and misapplied, or secreted with intent to misapply, sums of money belonging to Potter County which Knorpp had requisitioned for specific purposes and had deposited the portions unused for those purposes into his personal bank account for his personal use.
Knorpp, who held the office of county attorney of Potter County during the times of the alleged official misconduct, documented his re-election to that office at the 2 November 1976 general election. By pleadings and sundry motions, Knorpp interposed, among other matters, the "prior-term doctrine" of Article 5986. That article reads:
No officer in this State shall be removed from office for any act he may have committed prior to his election to office.
As used in the statute, the phrase "election to office" has been held to also mean the re-election to the term of office from which the officer is sought to be ousted. Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666, 669 (1924). The ultimate thrust of Knorpp's procedural motions was that Article 5986 barred his removal from office for acts charged to have been committed by him during his prior term.
The state countered that Article 5986 has no application unless and until Knorpp shows that the elements of the "forgiveness doctrine" are present. The state references *403 the applicability and elements of the "forgiveness doctrine" to the language of In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, 808 (1954), stating:
Neither may removal [of judges] be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C.S.
Under its view of this language and the recognition given it through the progeny of Laughlin, the state proposed that Knorpp had to demonstrate that the acts charged to have been committed by him before his re-election were known to the electorate and sanctioned or forgiven by them at the time of his re-election.
The trial court declined to accept the Article 5986 language as a bar to removal. Instead, the court submitted the twenty-four causes alleged for removal to the jury and, over the objection of both the state and Knorpp, gave this instruction:
The law provides that a public official may not be removed for alleged acts of misconduct occurring prior to his last election provided the public or a substantial portion thereof knows about such alleged acts prior to the election. You are instructed that before you may answer any of the plaintiff's [state's] grounds of removal "yes" you must believe from a preponderance of the evidence that the public did not know of such alleged misconduct before November 2, 1976.[2]
The jury answered "No" to each cause submitted, signifying that, under the court's charge, it was not persuaded the state had shown by a preponderance of the evidence that Knorpp was guilty of any alleged act of official misconduct. The court rendered judgment on the verdict, decreeing that the state recover nothing.
Appealing, the state asserts that eleven errors, including the giving of the erroneous instruction, so infected the trial that a reversal is required. Before consideration is given to the state's contentions of trial error, it must be determined whether Article 5986 bars the attempted removal for prior-term acts.
The Texas Constitution specifies that county officers, including county attorneys, may be removed from office for official misconduct as well as for other listed reasons. Tex.Const. art. V, § 24. The constitution also mandates that the legislature shall provide by law for the trial and removal from office of all officers of this state, the modes for which have not been provided in the constitution. Tex.Const. art. XV, § 7. Pursuant to this direction, the legislature has enacted Tex.Rev.Civ.Stat. Ann. art. 5961, et seq. (Vernon 1962), providing for the removal of state officers. Article 5970, et seq. set forth the modes for trial and removal from office of a county attorney and other officers for, among other listed reasons, official misconduct. The state instituted this action to remove Knorpp from office under this authority, a part of which is Article 5986 upon which Knorpp relies as a bar to removal.
Prior to the enactment of Article 5961, et seq., the legislature, operating under the constitutional mandate, had enacted Article 6030, et seq. providing for the removal of officers for certain acts of official misconduct. Article 6055, one of that series, then read: "No officer shall be prosecuted or removed from office for any act he may have committed prior to his election to office." The state invoked this statutory authority in Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666 (1924), for the removal of a county sheriff during his second *404 term for offenses committed during both the first and second terms. The Supreme Court, after commenting that "the Legislature did not idly enact the article [Article 6055], and that it should be given `force'," held:
We construe article 6055 to mean that an officer cannot be removed for acts committed prior to his election to the term of office he is holding.
* * * * * *
[T]he admission in evidence of other and separate acts charged and found by the jury to have been committed during the first term in office ... should not have been admitted for any purpose.
267 S.W. at 699. Although, as the state notes, the Court did not confront the issue whether the first term acts were known to the electors and sanctioned by them, the logical corollary of the Court's holdings is that the efficacy of the statute is unaffected by that issue, for, if the "forgiveness doctrine" were material to the operation of the statute, then evidence of the prior-term acts would have been admissible. However, the Court was definite in its holding that evidence of the prior-term acts was not admissible for any purpose.
After the Reeves decision, the legislature undertook the 1925 revised codification of the statutes. The language of Article 6055 became Article 5986. Thereafter in 1939, the legislature re-enacted Article 5986 in its present language.
A familiar principle in our law is that revised statutes are presumed to be enacted by the legislature with full knowledge of the existing conditions of the law and subject thereto unless the contrary is clearly established. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975). In revising Article 5986, the legislature used plain and simple words to direct that no state officer shall be removed from office for acts committed prior to his election to office. The direction is unqualified. The presumption, then, is that the legislature intended the re-enactment to apply as it had been judicially construed in Reeves v. State ex rel. Mason, supra. If the Reeves construction was unacceptable to the legislature, a simple remedy was available when Article 5986 was re-enacted fifteen years later. But the legislature re-enacted the statute in the same words which had been construed, and it would be overreaching for us to say that the re-enactment has a far different meaning than that given it previously by the Supreme Court.
Nevertheless, the state says that subsequent to Reeves v. State ex rel. Mason, supra, the Supreme court has engrafted the elements of the "forgiveness doctrine" on Article 5986 by its opinions in In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954), In re Brown, 512 S.W.2d 317 (Tex. 1974), Matter of Carrillo, 542 S.W.2d 105 (Tex.1976), and in Matter of Bates, 555 S.W.2d 420 (Tex.1977). Those cases concerned removal proceedings brought against district judges under constitutional provisions to which Article 5986 does not apply. Matter of Carrillo, supra, at 110; Matter of Bates, supra, at 427. The Laughlin proceedings centered around Tex.Const. art. XV, § 6, while the proceedings in Brown, Carrillo and Bates involved Tex. Const. art. V, § 1-a, to which any application of the Laughlin "forgiveness doctrine" has been reserved for further consideration. Matter of Bates, supra, at 427. However, in removal proceedings brought against officers under the statutory authority of which Article 5986 is a part, Article 5986 bars removal for acts committed prior to the election to the term of office from which the officeholder is sought to be removed. Reeves v. State ex rel. Mason, supra, 267 S.W. at 669. Thus, where Article 5986 applies under the present state of the law, it cannot be subjected to the "forgiveness doctrine" announced in In re Laughlin, supra.
Moreover, Matter of Bates, supra, at 428 particularly pointed out that the Laughlin doctrine is limited to those acts antedating election which are "not in themselves disqualifying under the Constitution and laws of this State." The pre-election acts for which the state sought to remove Knorpp *405 constitute official misconduct which specifically is made "disqualifying [i. e., a cause for removal] under the Constitution [Tex. Const. art. V, § 24] and laws [Article 5970] of this State." Consequently, the "forgiveness doctrine" does not apply to the official misconduct charged and, hence, the doctrine as delineated in In re Laughlin, supra, can have no application to the undisputed facts in the present action.
Still, the state insists that to extend the protection of Article 5986 to the officeholder without requiring absolution by a knowing electorate "would make Article 5986 a shield of injustice and make a mockery of elections in a democratic society." If so, it is a matter for legislative action, for courts must give effect to the clear meaning of a statute made by the legislature without regard to the policy or wisdom of the act or the results it may entail, Board of Insurance Com'rs. v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944), and the courts may not write exceptions into a statute so as to make it inapplicable under special factual circumstances not mentioned in the statute. Jefferson County Drainage District No. 6 v. Gary, 362 S.W.2d 305, 307-08 (Tex.1962).
Thus, given the force of the Article 5986 language and its construction by the Supreme Court in Reeves v. State ex rel. Mason, supra, the statute bars removal of Knorpp after his re-election for alleged acts of official misconduct committed before his re-election, and the take-nothing judgment must be sustained on this account. Cf., Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 142 (Tex. 1974), for the command that "[i]t is the duty of the appellate courts to sustain the judgment of the trial court if it is correct on any theory of law applicable to the case."
Under the circumstances, the state is not entitled to judgment under any view of the pleadings and evidence, and any jury trial proceedings become immaterial to the proper judgment to be rendered in this action. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497, 504 (1942). See also Vogel v. Allen, 118 Tex. 196, 13 S.W.2d 340, 341 (1929), and Edmiston v. Texas & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526, 528-29 (1940), for the principle that where, under no view of the pleadings and evidence, the plaintiff is entitled to recover, the submission to the jury and its findings are wholly immaterial and may be disregarded because they could form no basis for judgment. Accordingly, consideration of the state's contentions of trial error is pretermitted.
The judgment of the trial court is affirmed.
NOTES
[1] Unless otherwise noted, all articles cited are articles of the Texas Revised Civil Statutes.
[2] The state objected to the giving of the instruction on the ground that no evidence was adduced of any knowledge of the electors of the misapplication of the funds, and to the wording of the instruction on the ground that it incorrectly placed the burden upon the state rather than upon Knorpp. Knorpp objected to the giving of the instruction because it, in essence, was a total misstatement of, and a denial of the defense provided by, Article 5986. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431702/ | 575 S.W.2d 76 (1978)
KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Appellant,
v.
Marvin D. FANNIN, Appellee.
No. 8952.
Court of Civil Appeals of Texas, Amarillo.
November 30, 1978.
Rehearing Denied December 27, 1978.
*77 Brock, Waters & Pigg, Harold H. Pigg, Lubbock, for appellant.
McClendon & Richards, Tom M. Richards, Lubbock, for appellee.
REYNOLDS, Justice.
Kentucky Central Life Insurance Company seeks to reverse a judgment imposing liability for the accidental death benefits provided by insurance policies it issued. None of the assertions of error is a valid premise for overturning the jury's verdict of death by accidental means. Affirmed.
Kentucky Central Life Insurance Company insured the life of Sylvia G. Fannin, whose husband, Marvin D. Fannin, was the named beneficiary. Each of three life insurance policies provided a death benefit of $1,000 with an additional $1,000 in the event that death resulted directly, and independently of all other causes, from accidental bodily injury. A fourth automobile accidental death policy provided a $5,000 benefit for loss of life resulting from bodily injury caused solely by an automobile accident.
Three years later, Sylvia G. Fannin died after the automobile she was driving was wrecked. The insurance company paid the $3,000 death benefits provided in the life insurance policies, but denied the claims for accidental death benefits.
Marvin D. Fannin instituted this action to recover the unpaid death benefits specified in the four policies. The insurance company interposed the policy exclusions. The life insurance policies excluded accidental death benefits (1) if death or injury resulting in death results from intentionally self-inflicted injury or self-inflicted injury while the insured is insane, or intentional *78 self-destruction within two years from the date of policy issue whether sane or insane; or (2) if death or injuries resulting in death is caused or contributed to by disease, or mental or bodily infirmity. The automobile accidental death policy excluded death benefits (1) unless the loss of life results from bodily injury directly and independently of all other causes, and (2) if the loss is caused or contributed to by suicide or self-destruction. The pleading of these exclusions in avoidance of liability placed on Marvin D. Fannin the burden of proof to negate the exclusions before he could recover. Sherman v. Provident American Insurance Company, 421 S.W.2d 652, 654 (Tex. 1967).
After hearing the evidence and responding to the three special issues submitted, the jury found that the death of Sylvia G. Fannin: (1) resulted, directly and independently of all other causes, from bodily injury caused by the automobile collision; (2) was the result of an accident; and (3) was not the result of suicide, sane or insane. Accepting the verdict, the trial court rendered judgment decreeing that Marvin D. Fannin recover of and from Kentucky Central Life Insurance Company the sum of $8,000 and the statutory penalty of $960, with interest thereon at the rate of nine percent per annum, plus $2,000 as reasonable attorney's fees and all costs of suit.
The insurance company has appealed from the judgment, assigning nine points of error. Because the points are focused on the evidential development of the cause, a summary of the evidence, which is not disputed in any material aspect, properly positions the assertions of error.
The Fannins resided in Denver City, Texas. Mr. Fannin is employed as a fishing tool supervisor in the oil fields; Mrs. Fannin was employed as a secretary for an electrical business. Mr. Fannin listed Mrs. Fannin's past illnessescolds, flu and pneumonia; her past hospitalizationsfor child births and a hysterectomy nine years ago; her current conditionbeing overweight and a little high blood pressure; and characterized her health as "pretty good." Although Mrs. Fannin sometimes "would .. get low as any of us will ... it didn't last too long," and she neither took medicine not prescribed by a doctor nor used alcohol regularly. They were not having any problems with their marriage and, during the twenty-one year union, Mrs. Fannin never indicated any propensity toward self-destruction or predisposition to kill one of the children.
Mrs. Fannin had talked with her sister-in-law on the day of and prior to her death. They did not talk of death, but previously they had discussed death. "[W]e," reported the sister-in-law, "always said if we were going to commit suicide we would get a gun and go right here because too many people don't die in car wrecks. We have talked about how people have been paralyzed and she [Sylvia G. Fannin] was very much afraid of pain." It was the sister-in-law's opinion that Mrs. Fannin loved her family very much, seemed all right and was not insane.
Mrs. Fannin's husband, daughter and sister-in-law bore witness to her driving habits. To their knowledge, she was a careful driver, had never driven over 80 miles an hour, never failed to stop for a stop sign, and did not receive traffic tickets.
On the day of her death, Mrs. Fannin asked her son, his friend and her unmarried daughter, Linda, to go with her to the grocery store to purchase some bread. The son and his friend declined, but Linda accepted the invitation. Mrs. Fannin, accompanied by Linda, drove her automobile north on Main Street and stopped at a station for gasoline. Rather than proceeding northward toward the grocery store, Mrs. Fannin turned south on Main Street and drove toward the country.
While proceeding south on Main Street, Mrs. Fannin talked with Linda about the rumor, which Mrs. Fannin had discussed with her husband and sister-in-law, that Linda was pregnant by a married man. Linda satisfied her mother that she was not pregnant; her mother was relieved, pleased and was not acting strangely.
*79 Continuing south on Main Street, Mrs. Fannin passed over a dirt road to a "Y" in the road. She turned east on a straight, paved county road which intersected with State Highway 214 at a distance of two or three miles. So far as her husband, daughter and sister-in-law had knowledge, Mrs. Fannin had not been on this county road previously.
Mrs. Fannin and Linda began telling and laughing at jokes. After travelling no more than a mile, Mrs. Fannin gradually accelerated the speed of the automobile. At one point, Linda saw the speedometer indicate a speed of 110 miles an hour. Linda asked her mother to slow down at least once and Mrs. Fannin did so, but she gradually increased the speed and, during the majority of the distance travelled, the automobile was going in excess of 100 miles an hour. Mrs. Fannin laughed continuously, and her laugh was deeper and longer than Linda had ever heard. Linda attributed her mother's laughter, which was not hysterical, and the acceleration to a joke Linda told. Linda was calm, not scared, and Mrs. Fannin was driving competently as they approached the intersection with State Highway 214. Linda saw no other cars in the vicinity.
A stop sign, located some fifteen feet from the intersection, controls traffic approaching on the county road, and there were no obstructions to prevent its being visible. The sun was up, the day was clear and there was no moisture on the road. There is a dip in the county road just before the intersection is reached.
Linda recalled that Mrs. Fannin's automobile "kind of ran into the road," became airborne and landed on the other side of the intersection. If the car had not hit the bump, "We," Linda said, "would just have gone straight." As reconstructed by the investigating highway patrolman, the automobile dug into the county road at the dip, went airborne for 158 feet, came down and dug into the pavement, skidded sideways off the roadway for 121 feet, became airborne again and rolled 132 feet and rolled a third time for 108 feeta total distance of 519 feet.
Linda, injured and dazed, remembered standing by the car in a field and seeing her mother, who had been thrown out of the automobile. The investigating officer found a wrecked automobile to the east of the state highway, and he saw the body of Mrs. Fannin. It was apparent to him from looking at the body what had caused death. "It [the body] was completely demolished," he said, agreeing that it was "[j]ust broken up all over." Mr. Fannin went to the scene, saw his wife's body and was told that she was dead.
The patrolman test-drove the dip. At a speed in excess of thirty-five miles an hour, his car ran into the road at the dip. Based on his experience and investigation, he had no reason to disbelieve the speed Linda reported and, in his opinion, a speed of 100 miles an hour would be an unsafe speed on that road. Both the officer and Mrs. Fannin's sister-in-law concurred that they had driven faster than 100 miles per hour and were not, by doing so, trying to kill themselves; yet, the sister-in-law would have been alarmed, and Mr. Fannin would have some fear for his safety, in approaching the particular intersection at a speed in excess of 100 miles an hour, under which circumstances each agreed it would be reasonable to assume a person likely would be injured. Additionally, Mr. Fannin thought it dangerous to operate an automobile at speeds of 80 to 100 miles per hour, and that at a speed of 90 miles an hour the probability of an accident was greater than at 50 miles an hour.
This evidential development prompts the insurance company to insist in nine points of error that Marvin D. Fannin failed in his burden to establish an adequate basis in the evidence for either the submission of the three special issues or the findings the jury made thereon. It suffices to state generally, without observing the points seriatim to record the procedural predicates, that the insurance company asserts there is no evidence to warrant the submission of, and there is factually insufficient evidence to support the jury findings made on, each of the three special issues.
*80 In this connection, an assertion of no evidence has validity only if there is an absence of any evidence of probative force, either direct or circumstantial, to raise an issue submitted, Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725, 728-29 (1930), and no valid presumption operates on the issue. See Farley v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex.1975), for the principle that a true presumption invokes a rule of law which compels the jury to reach a conclusion in the absence of evidence to the contrary. Conversely, the issue must be submitted to the jury when it is raised by any evidence of a probative nature, Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952), or by an operative presumption. Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558-59 (Tex.1976).
An assertion of factual insufficiency of the evidence to support a particular jury finding has validity only if, when all of the evidence is considered and weighed, the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering and weighing the evidence, due deference must be given to the jury's prerogative to judge the credibility of the witnesses and the weight to be given their testimony in resolving the conflicts and inconsistencies in the testimony and arriving at the findings it concludes are the most reasonable under the evidence. To this end, the jury is privileged to believe all or part or none of the testimony of any one witness, and to draw reasonable inferences from the facts it found were proved. Kulms v. Jenkins, 557 S.W.2d 149, 153 (Tex. Civ.App.Amarillo 1977, writ ref'd n. r. e.).
The insurance company first asserts the lack of the required evidential showing that the death of Sylvia G. Fannin was the result of an accident. The crux of the assertion is that she was intentionally and voluntarily operating her automobile on a county road at a speed in excess of 100 miles per hour approaching an intersection with a state highway; therefore, it is inconceivable that she could so operate her automobile and not reasonably anticipate that she could receive injuries which would lead to her death. This leads the insurance company to a conclusion that, definitionally, because her acts did not produce something unforeseen, unexpected and unusual, her death was not accidental.
The principle upon which the conclusion rests has been sundrily expressed. Injuries which result in death are "accidental" within the meaning of the policies here, according to the latest expression of our Supreme Court found in Republic Nat. Life Ins. Co. v. Heyward, supra, at 557,
... if, from the viewpoint of the insured, the injuries are not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by insured, or would not ordinarily follow from the action or occurrence which caused the injury.
Consistent with this expression, it is, despite the insurance company's argument to the contrary, immaterial what the witnesses, speaking after the fait accompli, could reasonably anticipate would be the probable consequence of Mrs. Fannin's operation of her automobile in the manner described; the controlling viewpoint is that of Mrs. Fannin at the time of her action. Thus, the propriety of the inquiry whether, and the finding that, the death of Mrs. Fannin was the result of an accident depend upon, respectively, the legal and factual sufficiency of the evidence to raise and to show that, from Mrs. Fannin's viewpoint, her conduct was not such as to cause her to reasonably believe that it would result in injuries producing death.
As mentioned, the insurance company emphasizes that Mrs. Fannin's uncharacteristic rate of speed and failure to stop at the intersection stop sign establishes that she reasonably anticipated she could receive injuries which would lead to her death. The assertion disregards two present factors. First, there is a presumption, based upon the recognized instinct of self-preservation, *81 that Mrs. Fannin did not voluntarily bring the danger upon herself. American Nat. Ins. Co. v. Fox, 184 S.W.2d 937, 943 (Tex.Civ.App.Fort Worth 1944, writ ref'd w. o. m.). Second, there is nothing in the act of driving at an excessive rate of speed and failing to stop at a stop sign, though both be violations of the law, which per se is calculated to produce bodily injury or death to the driver. Under some circumstances, either excessive speed or a failure to stop may result in injury or death, but it cannot be logically said that death is the natural consequence of either act. Indeed, the testimony of the patrolman and the sister-in-law is to the effect that neither injury nor death is the natural consequence of driving a motor vehicle at speeds in excess of 100 miles an hour.
Apart from that, there is testimony that Mrs. Fannin was pleased and relieved that her unmarried daughter was not pregnant and that a joke brought about her hilarity and the accelerated speed. Although the testimony is that Mrs. Fannin previously had not travelled the county road, the road was straight and paved and the intersection, though controlled, was free of traffic. According to Linda, Mrs. Fannin was driving competently and, except for encountering the dip in the county road, the automobile would have gone through the intersection. However, the dip was encountered, the automobile was wrecked and Mrs. Fannin died. This is some evidence of probative force for the submission of the special issue.
Given this and the related testimony, the jury could believe that Mrs. Fannin operated her automobile as she did in a carefree state of exhileration and reasonably infer that, in her view, she did not intend to cause any injury. The jury was entitled to believe that Mrs. Fannin had not previously travelled the road and to also reasonably infer that, although Mrs. Fannin may have been voluntarily exposing herself to some danger in driving at a high rate of speed, the dip in the road was unknown to her and she could not reasonably anticipate the unexpected danger the dip represented. Further, the jury could make the reasonable inference that, from Mrs. Fannin's viewpoint, encountering the dip was, under the court's charge, something unforeseen, unexpected and unusual which produced the accident from which her death resulted. With due deference to the jury's prerogative, we cannot say that the evidence supporting the jury's finding is so weak or the contrary evidence so overwhelming that the finding should be set aside.
A finding of death by accidental means under more extended circumstances was upheld in Metropolitan Life Insurance Co. v. Henkel, 234 F.2d 69 (4th Cir. 1956). There, the insured, fleeing in an automobile from officers at a reckless and unlawful rate of speed of 90 miles an hour or more, unexpectedly came to a fork in an unfamiliar road, and the car ran onto the soft shoulder and overturned, inflicting injuries from which he died. The court said that the overturning of the car as a result of the unexpected coming upon the fork in the road and the consequent running onto the soft shoulder was something unforeseen, unexpected and unusual which produced the injury.
Next considered is the insurance company's assertion that there was a failure to discharge the burden to show that Sylvia G. Fannin's death resulted directly, and independently of all other causes, from bodily injuries received in an automobile collision. The thrust of the argument is that because the cause of death was not established by a death certificate or by medical testimony, there is no competent evidence of the true cause of death.
The assertion is, in essence, that the cause of Mrs. Fannin's death was not established by direct evidence; however, the true cause of death, like any other fact, may be established by circumstantial evidence. Commonwealth Casualty & Ins. Co. v. Laurence, 223 S.W.2d 337, 338 (Tex.Civ. App.Fort Worth 1949, no writ); Universal Life & Accident Ins. Co. v. Beaty, 177 S.W.2d 244, 245 (Tex.Civ.App.Waco 1944, no writ). There is testimony that Mrs. Fannin was alive and laughing at the time the *82 automobile she was driving encountered the dip in the road and was wrecked; immediately afterwards, she was dead, her body broken up and demolished. There is also testimony that Mrs. Fannin had suffered illnesses and was overweight with high blood pressure; but the lay witnesses who had observed her were competent to testify, as they did, that her health was good and she seemed all right, Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944), and if her condition did not materially contribute to her death, recovery under the policies is not prevented by reason of her bodily condition. Mutual Benefit Health & Accident Ass'n v. Hudman, 398 S.W.2d 110, 114 (Tex.1965).
The testimonial facts leading to and surrounding Mrs. Fannin's death authorized the submission of the issue inquiring if her death resulted directly, and independently of all other causes, from bodily injuries received in an automobile collision. From these facts, the jury could reasonably conclude that Mrs. Fannin's condition did not materially contribute to her death and that it resulted directly, and independently of all other causes, from bodily injuries received in the automobile accident. After considering and weighing all of the evidence we are not able to say that the evidence supporting the jury's finding is so weak or that the contrary evidence is so overwhelming that the finding should be set aside.
Last addressed is the assertion that Mr. Fannin failed to carry his burden on the suicide issue. The negative of suicide, which was injected by interposing that exclusion rather than pleading suicide as an affirmative defense, was an element of Mr. Fannin's cause of action to show that Mrs. Fannin's death was accidental. Combined American Insurance Company v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (1962).
The evidence of Mrs. Fannin's death by violent and external means raises a presumption that she did not commit suicide, for the law assumes that her natural instinct was to avoid injury and preserve her own life. However, this presumption, which neither constitutes evidence in itself nor shifts the burden of proof, raises an issue of the fact, and compels the jury to find, that her death was not a suicide until and unless evidence to the contrary is introduced. See and compare Republic Nat. Life Ins. Co. v. Heyward, supra, at 558-59 and Farley v. M M Cattle Company, supra, at 756.
The insurance company argues that the undisputed acts of Mrs. Fannin in driving her automobile at 110 miles per hour and disregarding the stop sign intentionally and of her own volition rebuts the presumption and precludes a finding that she did not take her own life. We are not persuaded that those acts in themselves rebut the presumption against suicide arising under this record which, except for the two acts singled out by the insurance company, demonstrates that Mrs. Fannin was normal and without a suicidal intent. Even assuming arguendo that these acts rebutted the presumption, the true issue does not then become, as the insurance company proposes, whether Mrs. Fannin's driving actions were intentional. That test was rejected in American Casualty & Life Co. v. McCracken, 173 S.W.2d 212, 213 (Tex.Civ.App. Eastland 1943, writ ref'd). Moreover, that proposal, if followed to its logical conclusion, illogically brands as a suicide any driver's death resulting from an accident involving his intentionally driven automobile, irrespective of the circumstances. The true test would be whether the happening which produced the accidenti. e., encountering the dipwas intentionally or accidentally encountered. The jury has answered that issue by finding that Mrs. Fannin's death resulted from an accident, and the answer has withstood the attack made on it.
In upholding the verdict returned by the jury, we recognize it is arguable that the jury might have reached different findings from the evidence and inferences deducible therefrom; but that would not justify the setting aside of those findings of fact the jury concluded were the most reasonable under the evidence, for our jurisdiction has found no better way of establishing facts than through the findings of a jury made *83 on sufficient evidence. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (1951). Accordingly, the insurance company's nine points of error are overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431810/ | 575 S.W.2d 415 (1978)
C. T. STEDMAN, Appellant,
v.
GEORGETOWN SAVINGS AND LOAN ASSOCIATION, Appellee.
No. 18033.
Court of Civil Appeals of Texas, Fort Worth.
December 21, 1978.
Rehearing Denied January 18, 1979.
McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Sam J. Day and Carter L. Ferguson, Fort Worth, for appellant.
Clark, Thomas, Winters & Shapiro and Roy C. Snodgrass III, Austin, for appellee.
OPINION
HUGHES, Justice.
C. T. Stedman, plaintiff, sued Georgetown Savings and Loan Association, defendant, for usury, asking for penalties under Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 (1971). Trial to the court resulted in judgment for defendant. "Findings of Fact and Conclusions of Law" were requested and filed, to which plaintiff objected. Additional and amended "Findings of Fact and Conclusions of Law" were requested by plaintiff and denied by the trial court. Plaintiff perfected appeal.
We affirm.
No material facts are in issue, but the parties disagree emphatically as to their legal import. It appears that plaintiff asked defendant for a $65,000.00 loan to build a Dairy Queen. Defendant denied the application stating that it preferred to make home loans rather than high risk restaurant loans. However, defendant later reconsidered and agreed to lend plaintiff $60,000.00 payable over a period of 15 years at 10% interest per annum. The commitment was offered to plaintiff and he accepted.
The commitment, § 2, provided "-0-" loan fee to be paid in advance but stated in *416 § 8 that defendant would "set aside and escrow the funds for the project and interest shall begin to accrue from that date." No percentage of interest was stated in § 8, but defendant charged and plaintiff paid 10% on $60,000.00 from 6-30-75 to the end of January, 1976. On February 2, 1976, the permanent loan was closed when plaintiff executed a note to defendant providing for 10% per annum interest.
Trial court's findings of fact pertinent and in dispute are:
"(5) Upon the acceptance of the commitment by the Plaintiff, the Defendant set aside and reserved on its books the sum of $60,000.00.
"(7) Pursuant to the commitment, Plaintiff paid a fee at the rate of ten percent per annum from July 7, 1975 through the month of January, 1976, being a total of $2,883.31. The fee was paid by Plaintiff and accepted by Defendant in return for Defendant's issuing the commitment to make a loan in the future.
"(8) The commitment entitled the Plaintiff, at his sole option, to obtain the loan described therein from Defendant and the consideration for the option was payable whether or not the permanent loan was actually made.
"(9) The commitment did not bind Plaintiff to borrow the money from Defendant and he was free to try to arrange permanent financing on terms more favorable to him from other lending institutions.
"(12) At no point in time has Plaintiff paid or Defendant received any sums in excess of ten percent per annum computed on $60,000.00.
"(16) There existed two separate transactions under the facts of this case, a commitment and a subsequent loan, and the Defendant charged a separate fee as compensation for each transaction.
"(17) All the payments made under the commitment were made prior to the formal execution and funding of the permanent loan.
"(18) The ten percent per annum fee charged for the commitment was a yardstick used to express the changing price at which the Plaintiff's option to enter into a loan in the future could be exercised."
Although plaintiff has assigned twenty points of error in his brief, we are really concerned with one primary question: Was the money paid before the note was executed interest?
We hold the pre-note payments to be consideration from plaintiff to defendant for an eight month unilateral option, giving plaintiff the option for a permanent loan from defendant, if plaintiff so elected.
If, at the end of the eight months, plaintiff obtained his loan from another source and elected to not exercise his option with defendant, what would the 10% "interest" payments be? We hold them to be what trial court found them to beconsideration for an option. The option was the first of two separate transactions (a commitment and a loan). They were obviously separate, for the commitment could have been completed and terminated without implementation of the loan. The money paid up to that time which was denominated as "interest", would have no principal on which to attach. Its purpose was served: it had bought an option for eight months, using the 10% interest provision in the future loan as a "yardstick". "A fee which commits the lender to make a loan at some future date does not fall within this definition" (usury). "Instead, such a fee merely purchases an option which permits the borrower to enter into a loan in the future." Gonzales County Sav. & Loan Assoc. v. Freeman, 534 S.W.2d 903, 906 (Tex.1976). The same case also pointed out that such a provision, as here entitled the borrower to a separate and additional consideration apart from lending money. The Texas Supreme Court also enunciated the rule that courts should look beyond the form of the transaction to its substance to determine if usury exists. "Labels put on particular charges are not controlling." We hold the "interest" label in this case not controlling for reasons before stated.
*417 A contract, doubtful in terms of construction or susceptible of more than one reasonable meaning, will be construed by a court in the manner which conforms with legality. Walker v. Temple Trust Co., 124 Tex. 575, 80 S.W.2d 935 (1935). This is done particularly in penal type statutes, such as those dealing with usury. Pinemont Bank v. DuCroz, 528 S.W.2d 877 (Tex.Civ.App. Houston [14th Dist.] 1975, writ ref'd n. r. e.).
Plaintiff has stressed the fact that defendant did not "escrow" $60,000.00 as provided in the commitment. No escrow was proven, as a matter of fact, and defendant's agent testified, in effect, that none was made. However, we hold this to be immaterial in that defendant was bound by the commitment to be ready to have the $60,000.00 available at whatever time plaintiff might demand it during the eight month option period.
In view of our foregoing holdings, we overrule points of error 1 through 20 and affirm the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431813/ | 575 S.W.2d 27 (1978)
Ex parte Erna Rene ROBBINS.
No. 59876.
Court of Criminal Appeals of Texas, Panel No. 2.
December 13, 1978.
Rehearing Denied January 17, 1979.
Jimmy Phillips, Jr., Angleton, for appellant.
*28 Carol S. Vance, Dist. Atty. and Calvin A. Hartmann, Asst. Dist. Atty., Houston, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
Rehearing En Banc Denied January 17, 1979.
OPINION
DALLY, Judge.
This is an appeal from a habeas corpus proceeding in which the appellant was remanded to custody for extradition to the State of New Mexico.
The Governor's Warrant which was admitted in evidence recites that the appellant "... stands convicted of the crimes of possession of burglary tools and burglary before the proper authorities by judgment, order granting probation and bench warrant and thereafter violated the terms of her probation and that said fugitive has taken refuge in the State of Texas .." The appellant offered and the court admitted in evidence the papers supporting the Governor's Warrant.
Although a prima facie case may be established by the introduction of the Governor's Warrant regular on its face, such prima facie case may be defeated by the supporting papers regardless of which party may have introduced the supporting papers. Ex parte Brown, 450 S.W.2d 647 (Tex.Cr. App.1970); Ex parte Wilson, 437 S.W.2d 569 (Tex.Cr.App.1968).
The appellant complains that the trial court erred in remanding the appellant for delivery to the representatives of the demanding state for extradition because the extradition demand was not accompanied by a copy of a judgment of conviction or the sentence imposed in execution of a judgment as required by Art. 51.13, Sec. 3, V.A.C.C.P.
Art. 51.13, Sec. 3, V.A.C.C.P., reads:
"No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless in writing, alleging, except in cases arising under Section 6, that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand; provided, however, that all such copies of the aforesaid instruments shall be in duplicate, one complete set of such instruments to be delivered to the defendant or his attorney." (Emphasis added.)
The papers of the demanding State which purport to support the Governor's Warrant do not contain a copy of an indictment, information supported by affidavit, an affidavit made before a magistrate together with a warrant issued thereon, a judgment, or a sentence imposed in execution of a judgment. This Court has held that a copy of an indictment which was with the supporting papers without a judgment or sentence sufficiently complied with Art. 51.13, Sec. 3, V.A.C.C.P. even though the fugitive had already been convicted. Ex parte Goins, 515 S.W.2d 918 (Tex.Cr.App.1974). See also Ex parte Gray, 426 S.W.2d 241 (Tex.Cr.App.1968). It appears we have not been presented with the same facts as we are presented in this appeal. In Blasi v. State, 192 So. 2d 307 (Fla.App.1966) an order remanding the fugitive for extradition was reversed when the demanding papers did not contain a copy of the judgment of conviction *29 or a sentence imposed in execution of the judgment even though the papers did recite that the fugitive had been charged with, pled guilty to, and been convicted of a certain crime, and had been placed on probation. Cf. Ex parte Wheeler, 528 S.W.2d 229 (Tex.Cr.App.1975); Byers v. Leach, 187 Colo. 312, 530 P.2d 1276 (1975).
Included in the papers in the instant case are a petition to revoke probation and an order to issue a bench warrant for appellant. The order to issue a bench warrant recites that the appellant was granted probation and that a hearing should be held to determine whether the appellant had violated the terms of her probation. Although the Governor's Warrant recites that a judgment of conviction and an order granting probation are included we do not find them in any of the supporting papers. Since a copy of none of the instruments enumerated in Art. 51.13, Sec. 3, V.A.C.C.P., that should accompany the demand for extradition are included in the papers in this case the requirements of that article were not met. Therefore, the demand for extradition should not have been recognized and extradition should not have been authorized until the required instruments were furnished by the demanding state.
The judgment is reversed and the cause is remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431814/ | 575 S.W.2d 90 (1978)
GREENWAY PARK TOWNHOMES CONDOMINIUM ASSOCIATION, INC., Appellant,
v.
BROOKFIELD MUNICIPAL UTILITY DISTRICT, Appellee.
No. 1903.
Court of Civil Appeals of Texas, Houston (14th Dist.).
December 6, 1978.
John B. Geddie, Houston, for appellant.
Robert M. Collie, Jr., City Atty., James L. Dougherty, Jr., Asst. City Atty., Houston, for appellee.
CIRE, Justice.
Greenway Park Townhomes Condominium Association [the Association] appeals from a summary judgment rendered in favor of Brookfield Municipal Utility District [the District] on a contract executed between Brookfield and Young Homes, Inc. Appellant is claiming the right to sue on the contract as a third party beneficiary.
Appellee District was a corporate and governmental agency of the State of Texas until it was annexed by the City of Houston on March 29, 1978. On July 17, 1973, the District entered into a contract with Young Homes, Inc., a land developer, to provide water and sewer service to a tract of land being developed outside the boundaries of the Utility District. The contract provided for a rate equal to one and one-half times that charged for services within the District's boundaries. In 1974 Young Homes fell into arrears in payments owed the District, and shortly thereafter was foreclosed upon by Gibraltar Savings Association. Subsequently water service to the tract was disconnected.
Sometime after the foreclosure Gibraltar and the Utility District entered into negotiations to reestablish water service to the tract. No formal contract was executed, but service was resumed at a rate two and one-half times that paid by similar customers located within the District's boundaries.
On December 30, 1974, after service was reestablished, appellant Greenway Park Townhomes was incorporated. The members of the Association were the fee owners of the townhouses. Gibralter was the original seller of all the townhouses.
Appellant instituted this suit in February of 1977 alleging that the District was charging rates in excess of those stated in the contract with Young Homes and had breached the contract in failing to supervise construction of the sewer system. Appellant *91 claimed to be a third party beneficiary of the contract between Young Homes and the Utility District. The language in the contract upon which appellant relied for this claim was as follows:
To further such development, the Corporation [Young Homes] desires to obtain a secure and continuous supply of potable water for the future water users in the Tract and is further desirous of providing for the continuous treatment of domestic waste collected from the Tract. (Emphasis supplied).
The contract further provided:
District [Defendant] has determined that it has sufficient capacity in its treatment facilities and sufficient surplus water produced by its waterworks system to serve the future users in the Tract as is hereinafter provided. (Emphasis supplied).
The trial court found no material issues of fact and rendered a summary judgment for the Utility District.
We hold that appellant as a matter of law is not a third party beneficiary of the original contract between Young Homes and the Water District and therefore affirm the judgment of the trial court.
Parties are presumed to contract for their own benefit, and it is not to be assumed that they intended to benefit a third party unless this intent is clearly apparent. Any doubt should be resolved against such intent. Republic National Bank of Dallas v. National Bankers Life Insurance Co., 427 S.W.2d 76 (Tex.Civ.App. Dallas 1968, writ ref'd n. r. e.).
The contract contained the following language:
[T]he Corporation [Young Homes] may assign this contract to a Homeowners' Improvement Association upon receiving the District's written consent and after such assignment, the Corporation shall no longer be responsible for the payment of bills due for services provided by the District.
By this clause the parties anticipated that a home owners association might in the future come into existence and acquire Young's rights and duties under the contract. They provided that the benefits under the contract could be extended to such an association by means of an express assignment. This assignment provision is inconsistent with the contention that the parties intended the Association to be a third party beneficiary, and would be rendered meaningless by such a construction. It is assumed that the parties to a contract intend every clause therein to be effective. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.Sup. 1968).
Further, there is evidence that the original contract between the District and Young Homes was rescinded by tacit mutual agreement of the parties prior to the time appellant Association came into existence. Rescission of a contract need not be by formal agreement, but may be implied from the course of conduct of the parties indicating an understanding that the contract is terminated. Marsh v. Orville Carr Associates, 433 S.W.2d 928, 931 (Tex.Civ. App.San Antonio 1968, writ ref'd n. r. e.). Here, Young Homes defaulted in three months' payments and was foreclosed upon. The District ceased providing service to the tract and subsequently entered into a new arrangement with Gibraltar. This indicated a mutual understanding that the original contract was terminated. Further, this occurred prior to the time the Association came into existence. As a result appellant could not have accepted or relied upon the contract before it was terminated by mutual rescission of the contracting parties, and cannot enforce it now. Breaux v. Banker, 107 S.W.2d 382 (Tex.Civ.App.Beaumont 1937, reversed on other grounds, 133 Tex. 183, 128 S.W.2d 23 (1939)).
Since appellant was not entitled as a third party beneficiary to sue on the contract between the District and Young Homes there was no error in granting summary judgment.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431818/ | 575 S.W.2d 766 (1978)
In re the MARRIAGE OF R. R. and R. R.
No. KCD 29869.
Missouri Court of Appeals, Kansas City District.
November 27, 1978.
Kranitz & Kranitz, St. Joseph, for appellant.
Don Pierce, P. C., Robert D. Colley, St. Joseph, for respondent.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
TURNAGE, Judge.
The sole question presented on this appeal is the custody of two girls, ages 4 and 2, following the dissolution of the marriage of their parents, Ross and Rose. The trial court awarded custody to Rose and Ross appeals. Reversed and remanded.
At the time Ross and Rose were married, Rose had two daughters born out of wedlock. *767 She and the two girls moved in with Ross and his mother. The house was large enough to accommodate Rose and her family and also the two girls later born of the marriage of Ross and Rose.
At the time of their marriage, Ross was in a remission stage of multiple sclerosis, but a few years later the disease became active and Ross was confined to a wheelchair. By the time of trial in this cause, Ross testified his condition had improved to the point where he could be out of his wheelchair on occasion and was able to go up and down stairs with the aid of handrails.
The marital difficulties between Ross and Rose culminated when Rose left with her four children. Ross thereafter filed his petition for dissolution in which he claimed Rose had disposed of all of the marital property, thus obviating the need for the court to divide such property, and alleged the birth of the two girls and prayed for their custody. Rose responded by admitting the marriage was irretrievably broken and praying for the custody of the two girls.
Ross tendered evidence designed to show that Rose had virtually wiped out his and his mother's life savings by forging their endorsements to cash in $2,100 in Series E bonds; by withdrawing between $2,000 and $2,500 from a savings account of Ross's mother; by converting $700 from a social security settlement received by Ross's mother; and by writing checks but filling in the check stubs with a lesser amount, thus resulting in overdrafts on Ross's account. Indeed, he was eventually arrested for writing insufficient funds checks, but the charges were dismissed when it was determined that Ross's signatures on the checks were forgeries.
Ross's mother testified that she drove Rose around town to pay various bills, and even though Rose represented the bills had been paid, including those for property taxes and Ross's medical insurance premiums, it later developed they had not. Ross and his mother both testified Rose had taken social security checks to deposit in the bank but instead had secretly obtained cash. There was also evidence that Rose had sold family heirlooms, jewelry and a button collection belonging to Ross's mother. Ross and his mother testified they were required to borrow between $5,000 and $6,000 after Rose left to pay the unpaid bills they thought had been paid by Rose. In addition, Ross introduced testimony from a private investigator designed to show Rose was spending several nights each week with a married man after she left Ross.
In her testimony, Rose denied the financial defalcations alleged by Ross and his mother, and stated that whatever was done by way of signing the name of Ross or his mother on checks or bonds was with their consent. Rose said she took the jewelry, antiques and button collection with the consent of Ross's mother and sold them at her direction. With reference to the difference between amounts shown on check stubs and amounts for which checks were actually written, Rose said the tabs from the grocery store where such checks were generally written were in the grocery sacks and available for inspection.
Rose testified that since leaving Ross she had been living with her grandmother and working as a waitress from 5:30 A.M. to 2:30 P.M. and that her 65 year old grandmother was caring for the children during her absence. After admitting her intimate relationship with a married man, Rose justified it by stating she never left her home until after the two girls born of her marriage to Ross were in bed asleep. She said she visited this man at least three nights a week, but denied taking the two younger girls to his house while he was present. However, Rose did admit taking them there during the day to do some laundry while he was absent.
In contradiction to Rose's admissions, Rose's grandmother testified that Rose lived with her but never stayed out all night. She said she was in good health and was willing to assist Rose in looking after the two small girls. Rose also offered the testimony of her oldest girl, age 9, and this girl's cousin, age 11, that on occasion, when *768 they had been in the house alone with Ross, he had pointed to various parts of their bodies and asked them to name such parts. Both girls testified that Ross had never requested them to undress or had ever touched them.
At the conclusion of the evidence the trial judge expressed on the record his view of the evidence, first noting he was inclined to believe Rose was immoral, both as to money and personal relationships. As for the testimony of the two girls concerning Ross's interest in their bodies, he felt the testimony was exaggerated but believed there was a kernel of truth. The judge also stated Ross would have difficulty in training and disciplining the girls due to his handicap because he was not able to catch them very easily and the children would take advantage of this situation. The court concluded by stating:
"So I got it on both sides. The Court feels that the probabilities are if they live with their mother, that they may grow up to be immoral and dishonest. If they live with their father, they may grow up to be emotionally damaged because of his handicap. So the Court has decided to place custody in the mother, figuring that's the least likely the damage to be."
Under Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976) the judgment of the trial court is to be sustained unless it is against the weight of the evidence, such a finding to be made "with caution and with a firm belief that the decree or judgment is wrong."
The only conflict in the evidence related to Rose's financial manipulation and the trial court resolved it by finding Rose had engaged in the conduct charged by Ross and his mother. Such conduct was not only personally reprehensible, but also possibly constituted violations of criminal law. Moreover, in her personal conduct Rose not only admitted her liaison with a married man, but failed to exhibit any concern over such conduct and gave no indication of discontinuing the relationship. To be sure, the bearing of two other children out of wedlock indicates such immoral conduct was instinctive with Rose. Her frank admission of nocturnal activities stands in stark contrast to her grandmother's denial.
This court accepts the resolution of the factual disputes made by the trial court because of the deference accorded that court as to the credibility of witnesses. D.I.M. v. P.D.M., 548 S.W.2d 237, 239[2, 3] (Mo.App.1977). However, this court cannot agree with the trial court's decision as to the custody of the two small children.
On this appeal, the only ground urged by Rose for her to be awarded custody is the well-worn statement that children of tender years, particularly girls, are presumptively better off with their mother. However, such presumption is not conclusive. In Re Marriage of Carmack, 550 S.W.2d 815, 818[6] (Mo.App.1977). The true test is the best interest of the child or children. Section 452.375, RSMo 1976 Supp.
In determining the best interests of the children, the morals and character of the parent to whom custody is to be awarded are proper objects of inquiry. Downing v. Downing, 537 S.W.2d 840, 843[3] (Mo.App.1976). Here the trial court has found Rose to be immoral both as to her honesty and personal conduct, and as to such personal conduct she made no denial and showed no remorse. In her view, engaging in such conduct after her two small children were asleep, although entailing habitual all-night absences, would have no effect on them.
The trial court opined that if the girls were placed with Rose they might grow up to be immoral and dishonest. Based on the evidence this is more than a reasonable apprehension. On the other hand, the trial court felt that placing the children with Ross would cause them some emotional damage. Unlike the possibilities suggested in relation to awarding custody to Rose, the possibility of emotional damage from living with Ross and his illness finds no support in the evidence. There was no evidence whatever concerning potential emotional damage to children resulting from living with a parent confined permanently or partially to *769 a wheelchair. The evidence was that Ross was able to leave his wheelchair and could go up and down the steps, although admittedly not as fast as an able-bodied person. Furthermore, Ross's mother, who lived with him, stated she was in excellent health and was perfectly willing to assist in rearing these children. Both Ross and his mother will be home full time. The trial court largely discounted the testimony concerning Ross's interest in the older girls. A review of this evidence leads this court also to largely, if not totally, disregard the same.
This court has a firm belief the judgment granting custody to Rose is wrong and against the weight of the evidence and that the best interest of these girls would be served by placing them in the custody of their father. Murphy v. Carron, supra.
The judgment is reversed and the cause remanded with directions to the court to enter a decree vesting custody of the two children born of the marriage between Ross and Rose in Ross with provisions for reasonable visitation by Rose.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431826/ | 575 S.W.2d 916 (1978)
FORD MOTOR CREDIT COMPANY, a corporation, Plaintiff-Respondent,
v.
Janet M. PEDERSEN et al., Defendant-Respondent,
Florissant Bank, a corporation, Intervenor-Appellant.
No. 39445.
Missouri Court of Appeals, St. Louis District, Division One.
December 27, 1978.
*917 Richard D. Schreiber, Judson W. Calkins, Lashly, Caruthers, Thies, Rava & Hamel, Clayton, for intervenor-appellant.
James E. Hawk, Jr., Hawk & Mattingly, Clayton, for plaintiff-respondent.
Daniel J. O'Toole, Jr., Saitz, O'Toole, Kramer & Weinstock, St. Louis, for defendant-respondent.
Theodore S. Martin, Clayton, for witness Jasper Cillo.
SNYDER, Presiding Judge.
This is a replevin action brought by Ford Motor Credit Company (Ford Motor), a corporation, against Janet M. Pedersen to recover possession of a 1972 Ford Torino automobile. Florissant Bank, a corporation, was permitted to intervene in the action as a lien claimant. During the course of the litigation, Pedersen defaulted in her obligation on an installment note given by her to Florissant Bank. Florissant Bank then cross-claimed against her for the face amount due on The note, $1,240.64. The trial court made findings of fact, drew conclusions of law and rendered judgment granting possession of the automobile to Ford Motor and in favor of Florissant Bank on its cross-claim against Pedersen in the sum of $1,674.87, including interest and attorneys' fees.
Florissant Bank appealed, alleging that the trial court erred: (1) in holding that Ford Motor was entitled to possession over an innocent purchaser for value without knowledge of a perfected lien; and (2) in that its decision was against the weight of the evidence as to who should bear the loss between Florissant Bank and Ford Motor because of a delay by Ford Motor in perfecting its lien, and because Florissant Bank relied on a Missouri Department of Revenue title which indicated no lien was outstanding.
It is typical of such cases that the facts are complicated by the paperwork necessary to successive transfers of title to a motor vehicle.
On May 3, 1973, the automobile was traded in by Robert J. and Sharon Peters to Downtown Ford Sales, Inc. The Peters assigned a certificate of title to Downtown Ford Sales, Inc.
*918 On June 25, 1973 Downtown Ford sold the car to Elizabeth Watkins and executed the "reassignment by registered dealer only" portion of the Peters' title to Watkins. Watkins signed a retail installment contract on the automobile and a Missouri title application form. The retail installment contract was purchased by Ford Motor from Downtown Ford. In conjunction with the purchase, Downtown Ford tendered to Ford Motor the retail installment contract, the lien perfection copy of the title application form, and the title to the automobile showing the reassignment by Downtown Ford to Watkins.
Watkins defaulted on the installment contract. In addition, she neither paid the sales tax nor sent the other copies of the title application form to the director of revenue. Thus, no title was ever issued in Watkins' name.
Ford Motor on August 23, 1973 filed the assigned title, the lien perfection copy of the title application form, and the required fee with the director of revenue. If a title had been issued to Watkins and statutory procedures followed, the lien of Ford Motor would have been shown on the title which would have been sent by the director of revenue to Ford Motor, the first lienholder. § 301.620(4), RSMo 1969.[1]
On August 1, 1973, the automobile was towed by the St. Louis Towing Company, on order of the St. Louis Police, for parking fines incurred by the former owner, Robert J. Peters. A title check by the police department with the director of revenue disclosed no outstanding lien on the automobile.
On September 10, 1973, pursuant to ordinances of the City of St. Louis, the automobile was sold at auction to Jay's Auto Parts and Salvage, Inc. by the St. Louis Towing Company. The price was $150.00.
On September 24, 1973 the director of revenue issued a certificate of title, free of liens, to Jay's Auto Parts.
On October 1, 1973 Jay's Auto Parts sold the automobile to defendant Janet M. Pedersen, who signed a promissory note to Florissant Bank and a security agreement pledging the automobile to secure payment of the note. The evidence as to the sale price was in conflict but the face amount of the note was $1,869.30. Although the assignment on the reverse of the title issued to Jay's Auto Parts was not signed by an officer, employee or agent of the corporation, when Pedersen applied for a Missouri certificate of title, it was issued in her name showing the lien of Florissant Bank. No other liens were shown on the title.
Ford Motor's replevin action was subsequently filed.
After Pedersen became delinquent in her payments, the maturity of the note was accelerated by Florissant Bank who then cross-claimed against Pedersen for the balance due.
The trial court rendered judgment awarding possession of the automobile to Ford Motor and in favor of Florissant Bank on its cross-claim against Pedersen. The trial court's conclusion that Ford Motor was entitled to possession of the automobile was based on Zuke v. Mercantile Trust Company National Association, 385 F.2d 775 (8th Cir. 1967).
The standard of review in a court-tried case is set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.
Section 400.9-302 of the Uniform Commercial Code relating to the perfection of liens by filing does not apply to automobiles. When the Uniform Commercial Code was adopted by Missouri the legislature also passed § 301.600, which controls the method of perfecting liens and encumbrances on motor vehicles. Section 301.600.2 reads as follows:
2. A lien or encumbrance on a motor vehicle or trailer is perfected by the delivery to the director of revenue of the *919 existing certificate of ownership, if any, an application for a certificate of ownership containing the name and address of the lienholder and the date of his security agreement, and the required certificate of ownership fee. It is perfected as of the time of its creation if the delivery of the aforesaid to the director of revenue is completed within thirty days thereafter, otherwise as of the time of the delivery.
The lien of Ford Motor was perfected on August 23, 1973, the date of delivery of the requisite documents to the director of revenue, inasmuch as the delivery was not made within 30 days after June 25, 1973, the date the lien was created. Therefore, unless there are other reasons why the lien is not enforceable, Ford Motor must prevail.
Florissant Bank relies on: (1) the purchase by an innocent purchaser without knowledge of the lien; (2) the lack of notice to appellant and others because the title certificate was issued to Jay's Auto Parts showing no lien; and (3) the delay by Ford Motor in perfecting its lien.
Considering these points in order, the first two are refuted by the provisions of § 301.600.1, which reads as follows:
1. Unless excepted by section 301.650, a lien or encumbrance on a motor vehicle or trailer, as defined by section 301.010, is not valid against subsequent transferees or lienholders of the motor vehicle or trailer who took without knowledge of the lien or encumbrance unless the lien or encumbrance is perfected as provided in sections 301.600 to 301.670.
If a lien is not valid against "subsequent transferees . . . who took without knowledge of the lien or encumbrance unless the lien or encumbrance is perfected," then conversely, it must have been the intent of the statute that a lien is valid against subsequent lienholders if perfected as provided by the law.
Further, it is provided in § 301.650.2 that: "The method provided in sections 301.600 to 301.670 of perfecting and giving notice of liens or encumbrances subject to sections 301.600 to 301.670 is exclusive." (Emphasis supplied). Admittedly the statute provides that liens shall be recorded by the director of revenue on certificates of title. § 301.620(4). Ford Motor could not do this. Ford Motor did everything required of it to assure that its lien rights were perfected in accordance with the statute. It was the duty of the director of revenue to maintain records in such a way as to prevent the issuance of a certificate of title free of liens after Ford Motor's lien information had been delivered to him as required by § 301.600.2. Somewhere in the files of the director when the title to Jay's Auto Parts was issued was the lien copy of the application for title of Elizabeth Watkins showing the lien of Ford Motor. Through oversight, mistake, a failure of the system or call it what you will, this outstanding lien was not shown on the Jay's Auto Parts title.
Ford Motor's compliance with the statute gives it priority over subsequent lienholders. Florissant Bank cannot rely on or prevail because of its innocent purchaser status.
The statutes cited by Florissant Bank to support its argument that it should prevail as an innocent purchaser without notice of the lien, § 513.140 and § 428.070, relate to judgment executions and fraudulent conversions and have no application to the facts here. The cases cited in its reply brief to support the innocent purchaser theory, Anderson v. Arnold-Strong Motor Co., 229 Mo.App. 1170, 88 S.W.2d 419 (1935), Bonnell v. Mahaffey, 493 S.W.2d 688 (Mo.App.1973), are distinguishable on the facts. In neither case were there disputed lienholder rights. Instead both concerned the statute which provides that the sale of an automobile without the required assignment of a certificate of title is fraudulent and void.
The third reason advanced by Florissant Bank for not recognizing the Ford Motor lien is the delay in perfecting it. The lien was created on June 25, 1973 when Elizabeth Watkins signed the retail installment contract. It was not perfected until August 23, 1973 when the requisite documents were delivered to and received by the director of revenue. However, even if the *920 lien papers had been sent immediately by Ford Motor the result would have been the same. The title to Jay's Auto Parts was issued on September 24, 1973, more than a month after Ford Motor's lien was perfected. Title to Janet Pedersen was issued on November 6, 1973, more than two months after perfection of the lien. Florissant Bank was not harmed by the delay but rather by the failure of the director of revenue to record an existing lien on the Jay's Auto Parts title.
Both parties cite In re Jackson, 268 F. Supp. 434 (E.D.Mo.1967) and Zuke, supra, by which the Jackson opinion was affirmed. The Jackson opinion contains a thorough and scholarly analysis of the Missouri statutes relating to automobile liens. Zuke is authority for the proposition that a lien on an automobile is perfected when the lien copy only of the application for title form is delivered to the director of revenue with the other necessary documents, even though the other copies of the application for title are never delivered by the automobile purchaser and the automobile never registered for licensing purposes. The facts in Zuke are almost identical to those being considered here.
In Zuke, Mercantile Trust Company National Association perfected its lien by sending the required documents, including the lien copy of the application for title, to the director of revenue. The purchaser failed to apply for a title by sending the other copies of the application to the director of revenue along with a remittance for the sales tax due. The automobile was never registered for licensing purposes and no certificate of title was ever issued. The purchaser subsequently filed for bankruptcy and the trustee refused to honor Mercantile's lien.
The Eighth Circuit Court of Appeals held that Mercantile was entitled to possession under these circumstances. Zuke confirms Ford Motor's position that its lien should be honored.
Florissant Bank argues that Zuke should be distinguished on the facts because of the issuance to Jay's Auto Parts of the lien-free title and the bank's reliance on that title, and claims that Ford Motor's lien "passed out of existence," thus entitling Florissant Bank to possession. No cases are cited to support that theory and the argument is not persuasive. The position of the trustee in bankruptcy in Zuke was similar to that of Florissant Bank. Neither had actual notice of the prior lien. Each had a claim which arose subsequent to the perfecting of the prior lien. The trustee in bankruptcy, in fact, could be said to have had a stronger claim because he was acting as a fiduciary in representing the interests of creditors. Florissant Bank acted solely for itself. The trustee was not allowed to prevail. Similarly, the ruling here must be against Florissant Bank.
Florissant Bank contends Ford Motor should have redeemed the automobile when the public auction was held in accordance with the City of St. Louis ordinances, but it fails to cite any authority to support the theory that a lienholder must redeem a chattel at a public sale or lose its lien.
Finally, Florissant Bank advances an equitable argument, claiming it should prevail because Ford Motor was in privity with Elizabeth Watkins, a wrongdoer who failed to pay the sales tax due on the automobile. Again no authority is cited for this very weak reasoning and it is rejected.
There was substantial evidence to support the judgment and no error either in the declaration or application of the law by the trial court.
No appeal was taken from the judgment on the cross-claim.
The judgment is affirmed.
WEIER, C. J., and SMITH, J., concur.
NOTES
[1] All statute references are to RSMo 1969. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431839/ | 575 S.W.2d 72 (1978)
COMMISSIONERS COURT OF ANDERSON COUNTY, Texas, et al., Appellants,
v.
Jerry L. CALHOON, Appellee.
No. 1228.
Court of Civil Appeals of Texas, Tyler.
November 22, 1978.
*73 M. Gaddy Wells, Melvin D. Whitaker, Paxton, Whitaker & Parsons, Palestine, for appellants.
Jerry L. Calhoon, A. D. Henderson, McDonald, Calhoon & Kolstad, Palestine, for appellee.
MOORE, Justice.
Plaintiff, Jerry L. Calhoon, filed suit against defendant, N. R. Link, County Judge of Anderson County, Texas, as well as the Commissioners Court and the Tax Assessor of Anderson County, for a permanent injunction seeking to enjoin the defendants from putting into effect an allegedly unlawful scheme or plan of taxation and from the collection of ad valorem taxes based thereon. Plaintiff alleged that the defendants were about to adopt a tax plan by which all rural unimproved land would be valued at $48.00 per acre, irrespective of market value, whereas all improved property situated in the county was to be valued on the basis of fair market value. Plaintiff alleged that under the proposed plan, he and other taxpayers, whose property consisted primarily of improved property in the nature of a residence, would be required to bear a greater share of the tax burden than those taxpayers who owned unimproved property valued at the arbitrary figure of $48.00 per acre or one-sixth of its market value. Plaintiff further alleged that the proposed illegal plan was arbitrary and discriminatory and if allowed to be adopted would result in substantial injury to him and other homeowners similarly situated because it would result in their paying more than their fair share of the ad valorem tax burden of Anderson County. His prayer *74 was for a permanent injunction enjoining defendants from putting the plan into effect and from collecting any taxes on his property based on such illegal plan. After a trial before the court, sitting without a jury, the trial court entered judgment permanently enjoining defendants from "making or certifying or approving any of the present tax rolls." Whereupon defendants perfected this appeal.
We reverse and dismiss.
The record reveals that plaintiff's suit was instituted on July 28, 1978. Judgment was thereafter rendered on August 17, 1978, prior to the time the Commissioners Court of Anderson County, Texas, sitting as a Board of Equalization, had adjourned or certified the 1978 tax rolls. The judgment recites that the court was of the opinion that a permanent injunction should be granted for the following reasons:
(1) The tax rolls have been prepared, but not certified nor approved.
(2) The rural acreage in the County has been included upon the tax rolls thus prepared at an assessed evaluation of $12.00 an acre, which is arrived at by utilizing twenty-five percent (25%) of $48.00 per acre.
(3) Rural acreage in Anderson County has a minimum fair market value of $300.00 to $325.00 per acre.
(4) The $12.00 an acre valuation has been used with no consideration given to the market value of said land.
(5) Residential property, including the Plaintiff's, has been systematically included on the tax rolls by using a formula that gives consideration to market value, and values said property at one-fourth (¼) of fifty percent (50%) to sixty percent (60%) of its fair market value.
(6) The result of the utilization of $12.00 an acre valuation for the rural acreage has been to include on the tax rolls prepared such property at no more than twenty-five percent (25%) of one-sixth (1/6) of its fair market value.
(7) Residential properties, including the Plaintiff's, will carry approximately three (3) times the tax burden as will rural acreage of equal value if the present tax rolls are certified.
(8) The Tax Assessor Collector has not prepared the existing tax rolls; rather, they have been prepared by an employee, Wilson Buckley, hired by and working under supervision of the Commissioners Court.
(9) The Commissioners Court consists of N. R. Link, County Judge, H. C. Wilson, Lavoy Lassiter, B. J. Beard, and W. E. Henry; these individuals also make up the Board of Equalization for Anderson County, Texas.
(10) The rural acreage has been carried upon the tax rolls in the foregoing manner for at least fifteen (15) years during which same period the residential properties have been carried upon the tax rolls at a percentage of its fair market value, which substantially exceeds the percentage the rural acreage has been valued at.
(11) Anderson County, Texas is primarily rural in nature.
(12) An appearance by the Plaintiff before the Board of Equalization to present his complaint would have been futile.
(13) If the present tax rolls are certified and approved, the Plaintiff will pay substantially more taxes than he would were his property rural acreage.
(14) The Defendants, in their official capacities, have perpetuated a scheme which favors taxpayers with rural acreage over taxpayers with residential real property for several years prior to and including the present year.
(15) The manner in which the tax rolls have been prepared results in arbitrary and unconscionable discrimination against taxpayers, including the Plaintiff, whose property consists of real residential properties.
Under the first point of error defendants urge that the trial court erred in granting a permanent injunction because there is no evidence that the proposed plan of taxation would result in substantial injury to the plaintiff. We sustain this point.
*75 The material facts do not appear to be in dispute. The uncontroverted testimony offered at the trial shows that all unimproved land situated in Anderson County had a minimum market value of between $250.00 and $325.00 per acre. The evidence shows that commencing in 1963 the county adopted a plan whereby all unimproved rural land was arbitrarily valued at $48.00 per acre, irrespective of market value. Such unimproved land was then assessed at 25% of the arbitrary value, or $12.00 per acre, and taxes were collected on that basis. Residential or improved property, on the other hand, had been for many years assessed on the basis of its market value. The county then attempted to appraise the residential or improved land at approximately 50% to 60% of its market value and then assess such land at 25% of the appraised value. Thus, the evidence conclusively shows that all of the unimproved rural land was assessed on an arbitrary basis which was substantially below the market value while the improved lands were assessed and taxed on the basis of market value. The record shows that the tax assessor had again assessed all property on that basis for the present year and that the Board of Equalization intended to again adopt such a plan for the ensuing year.
In State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572 (1954), Justice Calvert said:
"Article VIII, sec. 1 of the Vernon's Ann.St. Constitution provides that `Taxation shall be equal and uniform' and that all property `shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.' By Article 7174, Revised Civil Statutes, 1925, the legislature has directed that `real property shall be valued at its true and full value in money,' and by Article 7212 has directed boards of equalization to hear evidence touching the `market value or true value' thereof. Our courts have interpreted these provisions to mean that assessed valuations shall be based on `the reasonable cash market value' of property. Rowland v. City of Tyler, Tex.Com. App., 5 S.W.2d 756, 760."
Unquestionably the evidence offered by the plaintiff shows that the plan or scheme of taxation adopted by the county was arbitrary and illegal. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 380 (1955) and the cases cited therein. Defendants do not contend to the contrary.
However, a mere showing of an erroneous and arbitrary plan of taxation does not entitle a taxpayer to injunctive relief. He still has the burden of showing that the proposed plan would result in injury to him. Consequently, we turn to the question of whether plaintiff discharged this burden.
Whether injunctive relief is sought before or after a fundamentally erroneous plan is put into effect, the taxpayer must show substantial injury in order to obtain injunctive relief against such plan. This means that he must show that the plan would discriminate against him by deliberately causing his property to be assessed at a greater percentage of its true value than the percentage assessed for other properties subject to the tax. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417 (1964); Atlantic Richfield Co. v. Warren Independent School Dist., 453 S.W.2d 190, 198 (Tex.Civ.App.-Beaumont 1970, writ ref'd n. r. e.); Lancaster Independent School Dist. v. Pinson, 510 S.W.2d 380, 383 (Tex.Civ.App.-Dallas 1974, writ ref'd n. r. e.).
Where the tax plan is attacked on the ground of inequality of assessment, proof of the actual market value of all of the plaintiff's property subject to the challenged plan is necessary, since without such proof no discrimination is established. Montgomery County v. Humble Oil & Refining Co., 245 S.W.2d 326, 335 (Tex.Civ. App.-Beaumont 1951, writ ref'd n. r. e.); State v. Whittenburg, supra; Lancaster Independent School Dist. v. Pinson, supra.
In the instant case, plaintiff testified that he owned a house and lot in Anderson County which he used as his residence. According to the testimony offered by the County his residence had a market value of *76 $76,800.00. Plaintiff testified that in addition to his residence, he also owned an undivided interest in other improved property. He further testified that he owned an undivided interest in unimproved property in the County. The record contains no proof whatever showing the market value of his improved property other than his residence, and contains no proof of the market value of his unimproved property.
Plaintiff takes the position that the plan of taxation substantially injures him because the ratio of assessed value to market value of his residence exceeds by at least three times the ratio of assessed value to market value of the unimproved rural property throughout Anderson County. While plaintiff admits that he owns some improved property other than his residence and also admits he owns unimproved rural property, the only evidence of the market value of any of his property is the value of his residence. In order to show that the tax plan was discriminatory as to him, it was incumbent on him to prove the value of all of his property. A taxpayer cannot establish substantial injury by offering proof of the market value of only a portion of his property alleged to be subject to the illegal plan or scheme of taxation. City of Houston v. Baker, 178 S.W. 820 (Tex.Civ.App.-Galveston 1915, writ ref'd); Thompson v. City of Houston, 410 S.W.2d 813, 816 (Tex. Civ.App.-Houston 1967, writ ref'd n. r. e.).
In the absence of any proof of market value of all properties owned by plaintiff alleged to be subject to the illegal plan of taxation, neither the trial court nor this court is in a position to determine whether plaintiff would have been compelled to pay more than his fair share of the tax burden. Consequently there is no basis on which the trial court's implied finding of substantial injury may be sustained. Thus, we hold that the plaintiff has not carried his burden of proof to show substantial injury.
In view of our holding that substantial injury was not established, we do not reach defendant's remaining points of error.
Accordingly, the judgment is reversed; the injunction is dissolved, and the cause is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431849/ | 575 S.W.2d 25 (1978)
Glen Wayne WALTON alias Glen Waymen Walton, Appellant,
v.
The STATE of Texas, Appellee.
No. 54724.
Court of Criminal Appeals of Texas, Panel No. 2.
November 29, 1978.
Rehearing Denied January 17, 1979.
C. Logan Dietz, Houston, for appellant.
Carol S. Vance, Dist. Atty., Robert A. Shults and Robert A. Moen, Asst. Dist. Attys., Houston, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
Rehearing En Banc Denied January 17, 1979.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for robbery, where a life sentence was imposed by the court following a jury verdict which included a finding that the appellant had been twice before convicted of felonies. See V.T.C.A., Penal Code, § 12.42(d).
At the outset we are confronted with appellant's contention that the court erred in overruling his objection to the court's charge at the guilt stage of the trial authorizing a conviction upon a theory or theories not charged in the indictment.
V.T.C.A., Penal Code, § 29.02, provides:
"(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
"(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
"(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
"(b) An offense under this section is a felony of the second degree."[1]
The court charging the primary offense alleged that the appellant on or about July 18, 1975:
*26 "did then and there unlawfully while in the course of committing theft of money owned by Jospa Nelkin, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant."
The indictment thus charged robbery under V.T.C.A., Penal Code, § 29.02(a)(1), although the indictment did not allege the act was done recklessly.
In the charge the court abstractly instructed the jury as to both modes of robbery under said § 29.02, and instructed the jury as to the meaning of "recklessly."[2]
In applying the law to the facts, the court instructed the jury:
"Now if you find from the evidence beyond a reasonable doubt that on or about the 18th day of July, 1975, in Harris County, Texas, the defendant, Glen Wayne Walton, did, without the effective consent of Jospa Nelkin, the owner, take and exercise control over the corporeal personal property of Jospa Nelkin, to wit, money, from the possession of Jospa Nelkin, with intent then and there to deprive Jospa Nelkin of said money, and that the said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, then you will find the defendant guilty of robbery as charged in the indictment." (Emphasis supplied.)
The appellant objected to the charge pointing out to the court that underlined portions authorized conviction upon a theory or theories not alleged in the indictment. The objection was overruled.[3]
In Davis v. State, 557 S.W.2d 303 (Tex.Cr. App.1977), a prosecution involving aggravated robbery, it was held that the charge to the jury was fundamentally erroneous as authorizing conviction under every conceivable theory under statutes rather than limiting conviction to theory alleged in the indictment. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), and Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976), were cited with approval.
Since the charge in the instant case authorized a conviction if the appellant "recklessly" caused bodily injury not charged in the indictment and also authorized conviction under the second mode of robbery under V.T.C.A., Penal Code, § 29.02(a)(2), which was likewise not charged in the indictment, the charge was fundamentally defective. In addition to being fundamentally defective, the appellant's objection called the matter to the trial court's attention. See and cf. Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977).
The State calls attention to Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), *27 where a robbery conviction was upheld despite the fact that a theory not charged in the indictment was submitted to the jury. While the charge was held erroneous, the error was held harmless since there was no objection to the charge, and further it was unlikely the jury was confused or misled because there was no evidence that the complainant received any bodily injury (the theory not charged in the indictment), and since the evidence was sufficient to sustain a conviction for aggravated robbery as originally charged.
Williams was not mentioned in Davis or in Robinson, where the charges there were held to be fundamentally defective even though there was no objection thereto. In Dowden, Williams was distinguished simply by noting that Dowden timely objected to the charge (footnote # 2, 537 S.W.2d at p. 6).
Whatever the continued viability of Williams, it is easily distinguishable from the instant case. First, there was an objection to the charge, the evidence would have supported a conviction under the theory alleged as well as under V.T.C.A., Penal Code, § 29.02(a)(2). Further, the court charged on "recklessly" committing the offense under § 29.02(a)(1), which was not alleged in the indictment. Cf. Dowden v. State, supra.
The judgment is reversed and the cause is remanded.
VOLLERS, J., concurs in the result because there was an objection to the charge.
NOTES
[1] In Robinson v. State, 553 S.W.2d 371, 373 (Tex.Cr.App.1977), this court wrote:
"The elements of robbery with bodily injury under V.T.C.A., Penal Code, § 29.02, are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally, knowingly or recklessly (5) causes bodily injury to another.
"The elements of robbery by threats or fear are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) knowingly or intentionally (5) threatened or placed another in fear of imminent bodily injury or death.
"It is observed as to the culpable mental states involved in the two ways of committing robbery knowingly or intentionally are common to both while recklessly is applicable only to robbery with bodily injury."
[2] In Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr. App.1976), the defendant complained because the court included in the charge portions of the statutes that were neither pled in the indictment nor supported by proof at trial. There this court said:
"... This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E. g., Griffith v. State, 142 Tex. Crim. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition."
[3] The State contends the appellant did not properly preserve the error, if any, since the objection was not made in accordance with Article 36.14, V.A.C.C.P. It is true that the objection was not in writing, but it was timely dictated to the court reporter in the presence and consent of the court and was subsequently transcribed showing the ruling of the court and was included in the appellate record. The State's position is without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431853/ | 575 S.W.2d 169 (1978)
Harold BARNES, d/b/a Sulphur Creek Marina, Appellant,
v.
DEPARTMENT OF REVENUE, Commonwealth of Kentucky, and Maurice P. Carpenter, Commissioner, Kentucky Department of Revenue and Commonwealth of Kentucky, Office of the Attorney General and the Kentucky Board of Tax Appeals, Appellees.
Court of Appeals of Kentucky.
December 22, 1978.
*170 Phyllis A. Sower, Michael L. Judy, Johnson, Judy & Gaines, Frankfort, for appellant.
William P. Sturm, Dept. of Revenue, Frankfort, for appellees.
Before HOGGE, VANCE and WINTERSHEIMER, JJ.
WINTERSHEIMER, Judge.
This appeal is from a judgment entered March 6, 1978, which affirmed an order of the Kentucky Board of Tax Appeals, holding that the appellant's houseboats were not exempt from use tax under KRS 139.483.
Appellant owns and operates a boat dock located on Dale Hollow Lake and has been in the marina business since early 1960. The business has been audited by the Revenue Department for sales and use tax purposes on three occasions. Previous audits have not resulted in any deficiency assessments regarding the houseboats. In 1974, the sales and use tax records of the appellant were examined by the Department for the years July 1, 1970, through July 30, *171 1974, and the result was a deficiency assessment of $2,874.09 use tax for the purpose of four houseboats during the audit period. The boats are registered by the appellant as livery or boats for hire and are leased on a weekly basis. The deficiency was challenged by the appellant within the Revenue Department system and the Department ruled that the exemption relied upon by the taxpayer, for excluding the houseboats from use tax, related only to river-industrial vessels, such as barges and towboats, and was a provision of the Port and River Development Commission Act. A petition of appeal was taken to the Kentucky Board of Tax Appeals, which ruled that the houseboats were subject to use tax, and that KRS 139.483 is an integral part of the Port and River Development Act of 1966. Further appeal was taken to the circuit court which affirmed the decision of the Board of Tax Appeals. This appeal followed.
Appellant sets out the following arguments:
1) The orders of the circuit court and the Board of Tax Appeals are not in conformity with the law and are not supported by substantial evidence.
2) If the meaning of KRS 139.483 is in doubt, then any doubt must be resolved in favor of the taxpayer.
3) The Board of Tax Appeals and the circuit court erred in that they usurped the power of the legislature.
This Court reverses the judgment of the trial court and the Kentucky Board of Tax Appeals.
The crucial issue is whether the houseboats of the appellant are exempt from sales and use tax under KRS 139.483.
KRS 139.483 is a sales and use tax statute which specifically exempts from taxation ships and vessels used principally in the transportation or conveyance of persons for hire. The Revenue Department contends that the statute is an integral part of the Port and River Development Commission Act, and therefore, relates only to river-industry vessels such as barges and towboats, not including pleasure craft. It appears to us that the statute is on its face an integral part and is located in the sales and use tax provisions of Chapter 139 of the statutes.
Statutory language must be given its clear and commonly accepted meaning. We find that the statute contains no language excluding houseboats from the application of the exemption. The statute draws no distinction between industrial commercial craft and pleasure commercial craft.
We must also consider the past practice of the Department of Revenue which was not to collect use tax on houseboats. Appellant had been previously audited and no deficiency assessments regarding houseboats were made. Appellant testified that others in the marina business have not been paying nor were required to pay use tax on their houseboats. Similar testimony was received from the appellant's accountant. The testimony of Department of Revenue officials indicates that there had been no previous taxation of houseboats. It is well established that the practical construction of a statute by administrative officers over a long period of time is entitled to controlling weight. Grantz v. Grauman, Ky., 302 S.W.2d 364 (1957). Because the Revenue Department has not previously assessed a use tax on houseboats they should not be permitted to impose this tax at this time without statutory authority.
The Kentucky Board of Tax Appeals and the trial court committed reversible error in holding that the Revenue Department was correct in excluding houseboats from the tax exemption. The statute contains no reference to a distinction between industrial commercial craft as opposed to pleasure commercial craft. Such a distinction is neither evident nor implied by the language of the statute. It appears to us that the statute has a general application to all ships and vessels which are used primarily in the transportation of property or in the conveyance of persons for hire. If the application of KRS 139.483 is to be *172 modified in any way, such a distinction must come from the legislature and not from the Department of Revenue. If there is an omission in KRS 139.483 it must be rectified by the General Assembly only. The construction of the statute by the Revenue Department is improper because the applicability of a tax is not a matter of administrative manipulation. Commonwealth ex rel. Ross v. Lee's Ford Dock, Ky., 551 S.W.2d 236 (1977).
If the statute is applied so as to exclude from taxation boats or vessels such as the Belle of Louisville or the Delta Queen, but not other vessels, then the statute is unconstitutional because it results in discrimination and unjust treatment of a particular taxpayer. George v. Scent, Ky., 346 S.W.2d 784 (1961). Uniformity of taxation is required by Kentucky law.
It is well settled that when there is confusion, ambiguity or doubt about the meaning of a statute, such doubt must be resolved in favor of the taxpayer. Brown-Foreman Distillers Corp. v. Commonwealth, Dept. of Revenue, Ky., 346 S.W.2d 752 (1961).
Here, it appears that the judgment of the trial court and the Board of Tax Appeals are at variance with the clear meaning and language of the statute. If there is a doubt as to the meaning of the statute, such doubt should be resolved in favor of the taxpayer, and therefore, the Board and the lower court were erroneous in their decisions.
It is the holding of this Court that houseboats are exempt from the use tax provision of KRS Chapter 139 by virtue of the exemption created in KRS 139.483. Therefore, the judgment of the trial court and the Board of Tax Appeals is reversed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431854/ | 575 S.W.2d 323 (1978)
Gloria GUERRERO et al., Appellants,
v.
AETNA CASUALTY & SURETY COMPANY, Appellee.
No. 16007.
Court of Civil Appeals of Texas, San Antonio.
November 22, 1978.
J. Walter Park, IV, David T. Turlington, Davis & Morehouse, San Antonio, for appellants.
*324 Joe Meador, San Antonio, for appellee.
OPINION
CADENA, Justice.
The question presented in this case is whether the stated policy limits of personal injury protection (PIP) coverage provided for in a single multi-car family automobile policy can be multiplied by the number of automobiles insured where such "stacking" or "pyramiding" is necessary to permit recovery by the insured and a relative for medical expenses and lost income where the amount of such expenses and losses exceeds the stated policy limits.
Plaintiff, Gloria Guerrero, sued to recover benefits allegedly due her under the policy issued by defendant, Aetna Casualty and Surety Company. She joins with the other plaintiffs, Magdalena Guerrero, Eddie Guerrero, Linda Guerrero and Guadalupe E. Guerrero, Jr., as sole heirs of Guadalupe E. Guerrero, Sr., deceased, in their effort to recover benefits allegedly due their decedent under such policy. Plaintiffs appeal from the order of the trial court granting defendant's motion for summary judgment and denying plaintiffs' motion for summary judgment.
The policy in question covered three automobiles owned by decedent, one of which was a 1973 Chevrolet Malibu. On June 1, 1976, while decedent insured was operating the vehicle, and Gloria Guerrero was riding in it as a passenger, the automobile was involved in an accident which resulted in injuries to decedent and Gloria.
Defendant paid $2,500.00, the stated policy limit, to Gloria Guerrero under the PIP coverage for medical expenses incurred by her and for loss of income resulting from injuries sustained by her as a result of the accident and paid the same amount for medical expenses incurred by decedent as a result of such accident.
The parties stipulated that Gloria Guerrero and decedent each suffered a loss of $7,500.00, representing medical expenses incurred and income lost as a result of the accident.
Plaintiffs in this suit seek recovery of an additional $5,000.00 as benefits due to decedent and Gloria under the policy. Their theory is that since separate premiums were paid for each vehicle included in the PIP coverage, defendant is under an obligation to pay the stated policy limit ($2,500.00) multiplied by the number of automobiles (3) covered under the policy.
The PIP coverage is evidenced by Form 243, Personal Injury Protection Endorsement Family Automobile Policy (Texas Standard Automobile Endorsement Prescribed August 27, 1973). In accordance with the provisions of Article 5.06-3, Tex. Ins.Code Ann. (Vernon Pamphlet Supp. 1963-1977), the endorsement provides coverage for "(1) the named insured or any member of [his] household who sustains bodily injury, caused by accident, in a motor vehicle accident, and (2) any other person who sustains bodily injury, caused by accident (a) while occupying the insured motor vehicle, or (b) while using such vehicle with the permission of the named insured, or the spouse of the insured...."
The exclusions make the insurance inapplicable
(a) to any person who: (1) intentionally causes the accident resulting in the bodily injury of such person, or (2) sustains bodily injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official.
(b) to the named insured or any member of the insured's household who sustains bodily injury while occupying or through being struck by a motor vehicle owned by such named insured or any member of the insured's household which is not an insured motor vehicle.
Article 5.06-3(e) requires an insurer to provide for exclusions (a)(1) and (a)(2) and these are the only exclusions mentioned in the statute. In Western Alliance Insurance Co. v. Dennis, 529 S.W.2d 838, 839 (Tex.Civ. App.Texarkana 1975, no writ), the Court held that only the two exclusions mentioned in the statute were permissible, and that an *325 exclusion substantially in the form of exclusion (b) found in the instrument before us is unenforceable. However, this holding was expressly disapproved by the Supreme Court of Texas in Holyfield v. Members Mutual Insurance Co., 572 S.W.2d 672 (1978). Plaintiffs' contentions which are based on the holding in Dennis are, therefore, not persuasive.
Plaintiffs rely on the cases permitting stacking of medical payments coverage. Perhaps the leading Texas decision permitting such stacking is Southwestern Fire and Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.Houston 1961, no writ). There, plaintiff was issued one policy which covered two vehicles, with a separate premium being paid for each vehicle. His daughter was injured when struck by a vehicle belonging to a third party. Although medical expenses incurred as a result of the accident exceeded $1,000.00, the insurer tendered only $500.00, the limit of liability specified in the policy. In allowing plaintiff to recover an additional $500.00 under the policy, the Atkins opinion, after pointing out that separate premiums were paid for each car covered reasoned: If only one car were insured, plaintiff could recover the specified limit of $500.00. If plaintiff had purchased a separate policy for each car, he could recover $500.00 under each policy. If double recovery were not allowed under a single policy covering two cars where a separate premium was paid for each vehicle, there would be no consideration for the additional premium charged for the medical expense insurance on the second car included in the policy. Id. at 895. The court in Atkins also relied on generally accepted rules of construction requiring that insurance policies be read as a whole and ambiguities be resolved in the manner most favorable to the insured. The court found the required ambiguity in what it considered as a conflict between the limitation of liability clause and the separability clause which provided that if two or more cars were insured under the policy the terms of the policy would apply separately to each.
The "no consideration" approach cannot be applied to the case before us. As observed in Dhane v. Trinity Universal Insurance Co., 497 S.W.2d 323, 328 (Tex.Civ.App. Waco 1973) aff'd, Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679 (Tex.1974), the medical payments coverage protects the insured or a member of his family if the injury occurred while the victim was riding in any automobile, whether insured or not, or if the victim was struck by an automobile while he was a pedestrian. The personal injury protection coverage is not as broad. The exclusion section of the PIP endorsement prohibits recovery if the injury occurred when the victim was occupying or was struck by an uninsured vehicle. Where coverage is extended to include more than one automobile, the risk to the insurer is increased, as is the protection afforded. In the case before us, the insurer would be liable if insured or a member of his household received injury while occupying any one of the three vehicles insured, or as the result of being struck by any one of the three vehicles. Such increase of risk and extension of coverage furnishes consideration for the separate premiums for each additional car insured, as is the case under the provisions of the uninsured motorist endorsement. Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 683 (Tex.1974).
The ambiguity on which the court relied in Atkins resulted from the apparent inconsistency between the limitation of liability clause in the medical payments endorsement and the separability clause (applicable when more than two cars are insured by the same policy) found in the conditions section of the basic policy. 346 S.W.2d 892 (Tex. Civ.App.Houston 1961, no writ). No such inconsistency is present in this case since the conditions clause of the PIP endorsement expressly recites that only the expressly specified conditions found in the basic policy are applicable to the PIP endorsement, and such enumeration does not include the separability clause.
We do not accept plaintiffs' contention that the PIP endorsement is ambiguous because of conflict between the clause limiting liability and the clause relating to the *326 effect of other insurance on the same vehicles. The "other insurance" clause in the PIP endorsement is as follows:
If there is other personal injury protection insurance against a loss covered by the provisions of this endorsement, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in this endorsement bears to the total applicable limit of liability of all valid and collectible personal injury protection insurance; provided, however, the insurance afforded hereunder shall be excess over any other valid and collectible personal injury protection insurance available to the named insured or any member of the insured's household, and provided the insurance with respect to a temporary substitute or non-owned automobile shall be excess over any other valid and collectible personal injury protection insurance. (Emphasis added.)
Plaintiffs contend that the underlined portions of the "other insurance" provisions specifically allow stacking because it states that the PIP coverage shall be in excess over any other valid and collectible PIP insurance.
In cases involving uninsured motorist endorsements, our courts have held that provisions concerning other insurance are unenforceable to the extent that they deprive the insured of the minimum protection required by Article 5.06-1, Tex.Ins. Code Ann. (Vernon Pamphlet Supp. 1963-1977) which requires uninsured motorist insurance. It is not true, therefore, that the other insurance provisions on which plaintiffs rely have the effect of limiting the liability of the insurer. The provision in question does not deprive the insured of the protection required by Article 5.06-3.
In American Motorists Insurance Co. v. Briggs, 514 S.W.2d 233, 236 (Tex.1974), the Supreme Court said:
`We agree with ... those jurisdictions which have construed their uninsured motorist statutes as precluding the use of "other insurance" clauses to limit the recovery of actual damages caused by an uninsured motorist.' ... If coverage exists under two or more policies, liability on the policies is joint and several..., subject to the qualification that no insurer may be required to pay in excess of its policy limits.
A comparison of the endorsements relating to medical payments, uninsured motorist and PIP leads to the conclusion that the PIP endorsement more closely resembles the endorsement concerning uninsured motorist coverage as opposed to the medical payments coverage. The decisions denying the right to stack uninsured motorist coverage are, therefore, more persuasive than those permitting stacking of medical payments coverage. The trial court did not err in ruling that plaintiffs were not entitled to recover the specified policy limits for each of the three cars insured in this case.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2431863/ | 575 S.W.2d 326 (1978)
Marion T. CARSON, Independent Executor of the Estate of Julius B. Korus, Appellant,
v.
Mary Emma KORUS, Appellee.
No. 16159.
Court of Civil Appeals of Texas, San Antonio.
November 22, 1978.
Rehearing denied January 10, 1979.
*327 Eugene H. Lieck, Charles J. Lieck, Jr., San Antonio, for appellant.
Stewart & Hemmi, Kirk Patterson, B. F. Pennypacker, San Antonio, for appellee.
OPINION
MURRAY, Justice.
Mary Emma Korus, appellee, sued to recover child support payments from Marion T. Carson, appellant and Independent Executor of the Estate of Julius B. Korus. Appellee and Julius B. Korus were divorced in December of 1976, and Mr. Korus paid the child support called for under the divorce decree and property settlement agreement until his death on June 1, 1978. Thereafter, appellant qualified as independent executor of the Estate of Julius B. Korus, but did not make further child support payments. The divorce decree and property settlement agreement required payments of $250 per month per child for each of the three children until they shall reach the age of 18.
On June 30, 1978, appellee filed a motion in the original divorce case to modify the divorce decree requesting that temporary orders be issued to require the appellant to pay child support in the amount of $750 per month. Appellee also requested that upon final hearing of this motion an order to require the estate to make such child support payments be entered. On August 18, 1978, the court ordered that appellant pay $2,250 arrearages in child support pending final hearing of the cause. Appellant prosecutes this appeal to attack this order.
Appellant contends that (1) the court is without jurisdiction to entertain this motion because the suit is one to enforce an alleged contract not within the court's continuing jurisdiction defined in Section 11.05(a)[1] of the Texas Family Code and that (2) the trial court erred in not requiring appellee to post a bond.
Section 11.05(a) provides as follows:
Except as provided in Subsections (b), (c), and (d) of this Section, when a court acquires jurisdiction of a suit affecting the parent-child relationship that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this Code.
Tex.Fam.Code Ann. § 11.05(a) (Vernon Supp.1978). In addition, Section 11.11(c) provides as follows:
In a suit under this subtitle the court may dispense with the necessity of a bond in connection with temporary orders in behalf of the child.
Tex.Fam.Code Ann., § 11.11(c) (Vernon Supp.1978).
The question is whether the present action is a "suit affecting the parent-child relationship" within Section 11.05. We conclude that it is not such a suit.
Sections 14.05(d) and 14.06(d) provide respectively:
*328 Unless otherwise agreed to in writing or expressly provided in the decree, provisions for the support of a child are terminated by the marriage of the child, the removal of the child's disabilities for general purposes, or the death of a parent obligated to support the child.
Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides.
Tex.Fam.Code Ann. §§ 14.05(d), 14.06(d) (Vernon 1975).
Paragraph VI of the property settlement agreement provides that "[T]his agreement shall enure to the benefit of and be binding upon the heirs, assigns, executors, administrators, and personal representatives of the parties." Appellee contends that this written agreement binds the estate to continue child support payments.
The case of Adwan v. Adwan, 538 S.W.2d 192 (Tex.Civ.App.Dallas 1976, no writ) is in point. In Adwan, the wife sued her former husband in a district court of Dallas County to enforce a property settlement agreement made between them at the time of their divorce. The husband contended that the trial court lacked jurisdiction of this suit under Section 11.05 of the Texas Family Code because the domestic relations court had acquired jurisdiction of the children in a subsequent suit to change custody and retained continuing jurisdiction to the exclusion of the district court with respect to any "suit affecting the parent-child relationship." In Adwan, the court stated:
The question is whether the present action in the district court is a `suit affecting the parent-child relationship' within § 11.05. We conclude that it is not such a suit.
. . . . .
As we interpret this subsection [§ 14.06(d)] in the light of the other provisions of Subtitle A, a suit to enforce the terms of a support agreement set forth in the decree by contempt proceedings or other remedies available for enforcement of a judgment must be `brought under this subtitle' as a `suit affecting the parent-child relationship,' but a suit to enforce the terms of such an agreement as contract terms is not one `brought under this subtitle,' and, further, is not permitted unless the agreement provides that it may be enforced as a contract. If the contract does so provide, the suit may be brought, but it must be brought under the common law rather than `under this subtitle.' The effect of § 14.06(d) is to exclude from the operation of the Code an action to enforce the provisions of a support agreement `as contract terms' if the agreement provides that it may be so enforced. If such a suit is brought under the common law rather than under the Code, it is not a `suit affecting the parent-child relationship' as defined in § 11.01. Consequently, it is not within the `continuing jurisdiction' provisions of § 11.05, which apply to a `suit affecting the parent-child relationship.' (Emphasis added).
538 S.W.2d at 194.
We hold that a suit to enforce the terms of a property settlement agreement is not a "suit affecting the parent-child relationship."
In view of our holding that this is not a suit affecting the parent-child relationship, it follows that § 11.11(c) of the Code does not authorize the trial court to dispense with the necessity of a bond in connection with these temporary orders.
The temporary orders entered by the trial court are hereby dissolved.
NOTES
[1] All future references to statutory sections are to the Texas Family Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432296/ | 456 S.W.2d 23 (1970)
STATE of Missouri, Respondent,
v.
Clinton GLADIES, Appellant.
No. 54792.
Supreme Court of Missouri, Division No. 1.
July 13, 1970.
*24 John C. Danforth, Atty. Gen., Jefferson City, Gene E. Voigts, First Asst. Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., for respondent.
Ronald M. Sokol, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
HOUSER, Commissioner.
Appeal from a judgment of conviction based upon a plea of guilty and from an order overruling appellant's motion to withdraw the plea of guilty filed under Criminal Rule 27.25, V.A.M.R.
Clinton Gladies was originally charged with assault with intent to rape, under § 559.190, RSMo 1959, V.A.M.S., the pertinent portions of which follow: "Every person who shall be convicted of an assault with intent to * * * commit any * * rape, * * * or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine of not less than one hundred dollars." He originally pleaded not guilty, but later decided to plead guilty to this charge. On the day he appeared in court to change his plea from not guilty to guilty the State undertook to amend the information by interlineation by adding the words "with malice aforethought" after the words "did then and there unlawfully and feloniously." The purpose was to change the charge from assault under § 559.190 to assault with malice under § 559.180, RSMo 1959, V.A.M. S. The latter section, which proscribes a more serious crime and prescribes a much graver range of punishment, provides in pertinent parts as follows: "Every person who shall, on purpose and of malice aforethought, * * * assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to * * * ravish * * * such person, or in the attempt to commit any burglary or other felony, * * * shall be punished by imprisonment in the penitentiary not less than two years."
After some preliminary explanations, an off-the-record colloquy, and consultation with counsel, appellant entered a plea of guilty to the information as amended. Court, counsel and appellant considered that appellant was pleading guilty to a charge under § 559.180. The court ordered a presentence investigation. Before sentence was passed appellant filed this motion to withdraw the plea of guilty on the ground of surprise, inadequate opportunity to reflect on the amendment and the possible punishment, undue haste, innocence, and that he was not in full possession of his faculties because he was still feeling the effects of an assault made upon him while in the jail. Testimony was heard. The court overruled the motion and sentenced appellant to five years' imprisonment "for said offense of Assault with Intent to Rape with Malice Aforethought." This appeal followed. Appellant's original brief on appeal dealt only with the point that the court erred in accepting his plea of guilty for the reasons stated in his motion, viz., surprise; insufficient time to reflect on the amendment and its consequences; failure of the court to adequately determine that the plea was voluntarily made, etc. Appellant later filed an amended brief in which he raised the point that the amended information was fatally defective for not alleging that the assault was made "with a deadly weapon, or by any other means or force likely to produce death or great bodily harm." This new point goes to the jurisdiction of the court. That there must be an information on file charging the defendant with the offense to which he pleads as a jurisdictional prerequisite is established by Montgomery v. State of Missouri, Mo. Sup., 454 S.W.2d 571 (May 11, 1970), and the cases cited therein. A question of jurisdiction may be raised at any stage of the proceeding. The jurisdictional point is *25 meritorious and is completely dispositive of the appeal.
The purported amendment and subsequent proceedings were a nullity. In the first place, the State attempted by way of amendment of an information to charge an offense distinct and different from that charged in the original information. The two offenses proscribed by §§ 559.180 and 559.190 are distinct and different, both in degree and in severity and range of punishment. An amendment operating to charge an offense different from that charged in the original information is not permissible, § 545.300; Criminal Rule 24.02; State v. Thompson, Mo.Sup., 392 S.W.2d 617, and cases cited l.c. 620 [1, 2].[1] Furthermore, as acknowledged by the State, the purported amendment omitted an element of assault with malice, i. e., an allegation that the assault was made with means or force likely to produce death or great bodily harm. "[T]he use of means or force likely to produce death or great bodily harm is an essential element of an offense under Sec-559.180." State v. Berry, 361 Mo. 904, 237 S.W.2d 91, 93. Merely adding the words "with malice aforethought" without adding the words "by the use of means or force likely to produce death or great bodily harm" did not reconstitute the charge so as to make it a proper charge under § 559.180. The words "with malice aforethought" were mere surplusage added to the original charge. At the time appellant entered his plea of guilty to a purported charge of assault with intent to rape with malice aforethought under § 559.180, and at the time he was sentenced therefor, the information on file charged him with ordinary assault with intent to rape under § 559.190. In legal contemplation no charge of assault with intent to ravish with malice under § 559.180 was pending against him. The court "had no jurisdiction of such a charge and could not accept the plea of guilty or sentence defendant thereon. Such lack of jurisdiction of the subject matter may not be waived." Montgomery v. State of Missouri, supra. Appellant pleaded guilty to a crime with which he was not charged. Accordingly, the judgment and sentence for assault with intent to rape with malice aforethought must be vacated.
In this situation there is no merit in the argument of the Attorney General that appellant was not prejudiced by any defects in the amended information charging assault under § 559.180 because in passing sentence the court did not "hold the change against the defendant" but stated that the amendment would not be considered in passing sentence, and proceeded to sentence appellant to a term of imprisonment within the limits prescribed as punishment for a violation of § 559.190. It is patently and undeniably prejudicial to convict a person of a crime with which he has not been charged.
The circuit court is directed to strike the words "with malice aforethought" from the information. On remand the State may proceed further upon the original information or dismiss the cause and file a new information, subject to any possible question of limitations, or proceed otherwise as it may see fit. It may not proceed further in this cause on any charge except that of assault with attempt to rape under § 559.190. State v. Thompson, supra, 392 S.W.2d, l.c. 622.
The judgment is reversed and the cause is remanded for further proceedings in accordance with this opinion. Appellant is remanded to the custody of the Sheriff of Jackson County.
WELBORN and HIGGINS, CC., concur.
*26 PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
HOLMAN and BARDGETT, JJ., and DALTON, Special Judge, concur.
SEILER, P. J., not sitting.
NOTES
[1] Of course, if the information had properly stated a case under § 559.180 (the greater crime) a conviction under § 559.190 (the lesser crime) would have been permissible, because an offense under the latter section is an included offense in a charge under the former section, State v. Testerman, Mo.Sup., 408 S.W.2d 90, 93, but the instant situation is the converse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432287/ | 456 S.W.2d 693 (1970)
Phillip Wayne QUARLES, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
June 26, 1970.
Phillip Wayne Quarles pro se.
John B. Breckinridge, James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.
MILLIKEN, Judge.
This is an appeal from a final order overruling appellant's RCr 11.42 motion *694 after a hearing at which the appellant and his counsel were present. The appellant had been indicted for armed robbery, allegedly committed by him and a man by the name of Torian, but pleaded guilty to a reduced charge of robbery and received a five-year sentence. He complains (1) that he was denied effective assistance of counsel because his counsel was appointed on the day of trial and conferred with him approximately five minutes prior to trial, refused to move for a continuance, and refused to prepare adequately because he was not being compensated; (2) that his counsel coerced him to plead guilty; (3) that he was denied compulsory process for obtaining witnesses in his favor at the hearing on his RCr 11.42 motion, and (4) that he was denied due process of law.
Appellant wished to defend himself by claiming that it was not he but a man named Mattingly who had joined the defendant Torian in committing the crime and claims that he was denied the opportunity to subpoena Torian as a witness. Appointed counsel on the original trial, Mr. Turner, testified at the hearing that he had asked counsel for Torian if he thought Torian would testify against Quarles if Quarles went to trial, and that Torian's counsel believed he would. He asked the victims of the robbery, two soldiers, if they could identify the men who had robbed them, and they pointed to Torian and Quarles.
In view of the foregoing and other information, Mr. Turner recommended to the appellant that he plead guilty to an amended charge of robbery rather than risk a heavier sentence for armed robbery. This court has held that an attorney may, after making an adequate investigation, in good faith and in the exercise of reasonable judgment, advise his client to plead guilty. Commonwealth v. Campbell, Ky., 415 S.W.2d 614 (1967). Appointed counsel also stated that in cases such as the one at bar he customarily made a motion for a continuance, and he believed that he had done so in the Quarles case, but he could not recall precisely whether he had; he said that Quarles did not tell him of any witnesses he had to support a defense of alibi. In any event, appellant's contention that he was denied the right to subpoena witnesses cannot be considered on appeal since it was not raised in the trial court at the time of the hearing on his RCr 11.42 motion. Angelo v. Commonwealth, Ky., 451 S.W.2d 646 (1970).
In Ford v. Commonwealth, Ky., 453 S.W.2d 551 (May 1, 1970) which is somewhat similar to the case at bar, the movant alleged that his court-appointed counsel refused to prepare a defense for him simply because he was not being compensated; that his lawyer did not consult with him from the time of his appointment to the time of trial and had coerced him to plead guilty. In both the Ford case and this one the respective trial courts made inquiry to determine whether the plea of guilty was entered voluntarily with understanding of its effect. However, Ford, unlike the appellant in this case, had not had the benefit of a hearing, yet we refused to order one for him, and distinguished his situation from that found in Hall v. Commonwealth, Ky., 429 S.W.2d 359 (1967) on the grounds that in Hall the record did not show that the trial court had inquired into the voluntariness of the movant's plea and had warned him of its effect.
Since Quarles' allegation that his plea of guilty was coerced is thus disproved, his allegation that he was deprived of his right to effective counsel is of no avail. Lawson v. Commonwealth, Ky., 386 S.W.2d 734 (1965). In fact, the effect of a plea of guilty is to waive all defenses other than that the indictment charges no offense. Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (1966) cert. denied. Watkins v. Kentucky, 384 U.S. 965, 86 S. Ct. 1596, 16 L. Ed. 2d 677, Boles v. Commonwealth, Ky., 406 S.W.2d 853.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432291/ | 456 S.W.2d 414 (1970)
George M. BLAIR, Appellant,
v.
HALLIBURTON COMPANY, Appellee.
No. 6103.
Court of Civil Appeals of Texas, El Paso.
May 27, 1970.
Lynch, Chappell, Allday & Culp, Jimmie D. Oglesby, Midland, for appellant.
Turpin, Smith, Dyer, Hardie & Harman, Thornton Hardie, Jr., Midland, for appellee.
OPINION
PRESLAR, Justice.
This is a case in which summary judgment was rendered for the plaintiff on a promissory note. We reverse and remand for the reason that the appellee-plaintiff's proof was not conclusive that it was the owner and holder of the note.
*415 Appellee filed its petition in this cause with what may be termed the usual averments for a cause of action by the payee of a promissory note against the maker thereof. The petition stated a cause of action sufficient in all respects, and attached to it as an exhibit was a copy of the note. It was not a sworn pleading. The appellant-defendant replied with an unsworn general denial. Appellee then filed its motion for summary judgment, which was also unsworn, and to which there was no reply by the defendant-appellant. Nothing more was filed. Both parties appeared for hearing on the motion for summary judgment, through their attorneys. Counsel for the plaintiff urged its motion, and counsel for the defendant remained silent. In such state of the record, the motion of the plaintiff for summary judgment was granted, allowing recovery of the unpaid principal, interest and attorney's fees.
Thus we have judgment being granted solely on the pleadings, with a "copy" of a note a part thereof. That is not enough. The general denial raises the issue as to whether appellee was the owner and holder of the note and places the burden on it to prove these facts. Mitchell v. Geosonic Corporation, Tex.Civ.App., 431 S.W.2d 958 (n. w. h.); Schoolcraft v. Channel Construction Company, Tex.Civ. App., 397 S.W.2d 256 (n. r. e.); Alexander v. Houston Oil Field Material Company, Tex.Civ.App., 386 S.W.2d 540 (n. r. e.). Rule 92, Texas Rules of Civil Procedure, provides:
"A general denial of matters pleaded by the adverse party which are not required to be denied under oath, shall be sufficient to put the same in issue."
That this applies to a promissory note is well settled by the above-cited cases and others. Also, the Uniform Commercial Code, Sec. 3.307, V.T.C.A., "Burden of Establishing Signatures, Defenses and Due Course", provides in paragraph (b):
"When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense." (Emphasis supplied).
The purpose of requiring production of the instrument is to show that the instrument has not been transferred or assigned to another; in other words, that the plaintiff is the then holder. Pat H. Stanford, Inc. v. Franklin, Tex.Civ.App., 312 S.W.2d 703 (n. w. h.); Alexander v. Houston Oil Field Material Company (supra).
Appellee urges that this motion for summary judgment called upon the defendant to reply, and his failure to do so and remaining mute at the hearing leaves no doubt that he has no defense. It is perhaps unfortunate that the matter must be tried again, and that full proof by both parties of their contentions were not placed before the court, but the fact remains that the defendant was not required to do any more than he did to meet such case as was presented against him. He was faced only with pleadingsno proofand he countered with pleadings. Plaintiff submitted no proof, and his pleadings were of no greater dignity than that of the defendant. This is not the case argued by appellee that pleadings alone will not raise a fact issue. Such cases are where pleadings are pitted against proof of the kind spoken of in Rule 166-A. Summary judgment is possible only by virtue of Rule 166-A, Texas Rules of Civil Procedure. To entitle a party to a summary judgment, the provisions of this rule must be complied with. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him. Gardner v. Martin (1961), 162 Tex. 156, 345 S.W.2d 274. "In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary *416 judgment proof establishes as a mat-of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action." Opal Dent Gibbs et al. v. General Motors Corporation, Tex., 450 S.W.2d 827 (Feb. 14, 1970).
Being of the opinion that the court erred in granting the motion for summary judgment, the judgment is reversed and the cause remanded for trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432308/ | 456 S.W.2d 912 (1970)
Helen Ruth KEENER, Appellant,
v.
The STATE of Texas, Appellee.
No. 42983.
Court of Criminal Appeals of Texas.
July 22, 1970.
*913 Howell & Sherbert by Frank Killough, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Tom Dunn, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is murder; the punishment, 15 years.
The indictment alleged that on or about April 7, 1968, appellant voluntarily and with malice aforethought killed Willie Charles Thomas by shooting him with a gun.
Tried on her plea of not guilty, a jury found appellant guilty, rejected her motion for probation and assessed her punishment.
Appellant was represented at her trial and on appeal by counsel of her choice; was at large on bail pending trial and is at large pending the outcome of her appeal. However, upon her affidavit that she was unable to pay therefor, the court directed the court reporter to prepare a statement of facts.
A full record on appeal was filed in this court March 17, 1970.
Three grounds of error are set forth in appellant's brief. The first presents the contention that the evidence is insufficient to support a conviction for murder with malice.
The state's evidence includes the following:
On the evening of April 7, 1968, the deceased, accompanied by his brothers-in-law, Harold Maxie and Julius Smith, left the Collins Lounge, where they had been playing pool and drinking beer, to go to Marsha's Inn some five blocks away.
About a half block from Collins Lounge they encountered appellant, her mother and Reverend Victor Langford who were standing on the sidewalk. As the deceased and his companions started to go around them appellant fired a .22 caliber pistol she took from her blouse, the bullet striking the deceased in the left chest, penetrating the left lung and aorta, causing "two quarts of internal hemorrhage in the left chest and this resulting in irreversible shock and death."
After the shot was fired Reverend Langford grabbed appellant and she "told him to turn her loose she was going to kill all of them s o bs."
Appellant testified that the deceased had his hand up under his shirt; that she was afraid; that the deceased had threatened to kill her; that she believed that he had a gun, knife or some kind of weapon to kill her with; that she said "don't come up on me, you all beat me up last night" and she reached in her bra'"I just reached down and fired. I didn't aim it at no one. I just fired."
A large part of the 339 page transcript of the evidence relates to the happenings of the night prior to the killing.
*914 Appellant's brief urges that the only witnesses for the state to rebut her claim of self-defense were relatives of the deceased, some of whom had participated in beating her the night before, and that all of the credible testimony supports appellant's contention that the shooting of deceased "was motivated solely due to self-defense and not due to any unusually cruel disposition toward the deceased."
The issues of self-defense and whether the killing was upon malice aforethought were submitted in the court's charge and were resolved against appellant. As trier of the facts, the jury may believe that portion of the testimony it sees fit to accept as true. Hudson v. State, Tex.Cr. App., 418 S.W.2d 813.
We find the evidence sufficient to sustain the jury's verdict.
Ground of error No. 1 is overruled.
The second ground of error presents the contention that the state failed to prove venue.
This court judicially knows that Houston is in Harris County and is the County Seat of said County.
The evidence reflects that Collins Lounge is on Tuam Street, about 25 blocks south of the Courthouse, and that deceased was about a half block from Collins Lounge when he was shot. The evidence further shows that after being shot deceased ran to the door of the Black Cat Lounge, a half block away, where he died.
Officer M. E. Hurley testified that he went to the Black Cat Lounge on Main Street, in Houston, on April 7, 1968, where he found a man lying on the steps bleeding from the nose and mouth. He learned that the man's name was Willie Thomas. He remained with him until the ambulance arrived, at which time the man was dead.
Officer P. K. McKeehan testified that he was familiar with the area of Tuam Street and that Collins Lounge and several other lounges around there were "all here in Harris County, Texas."
Venue was also shown in the deposition of Reverend Langford, to which appellant's remaining ground of error relates.
Ground of error No. 2 is overruled.
Ground of error No. 3 complains that the trial court erred in failing to grant a new trial due to the prejudicial error of the State's Attorney in reading into evidence, over defendant's objection, portions of the deposition of Reverend Langford when no proper predicate had been laid for the admission of said deposition.
A portion of said deposition was used in cross-examination of appellant. No specific objection was made at the time. Thereafter, the entire deposition was introduced by the defense and read to the jury.
Any error in the reading of portions of the deposition was not preserved, Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728; Spencer v. State, Tex.Cr.App., 438 S.W.2d 109; 6 Tex.Jur.2d 68; and was cured by introduction of the same evidence by the appellant. Ramirez v. State, 169 Tex. Crim. 494, 335 S.W.2d 228; Cook v. State, Tex.Cr. App., 409 S.W.2d 857; Edwards v. State, 156 Tex. Crim. 146, 239 S.W.2d 618.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432250/ | 438 S.W.2d 382 (1969)
Sid MURRAY et al., Appellants,
v.
John BRAZZEL, Appellee.
No. 4706.
Court of Civil Appeals of Texas, Waco.
February 6, 1969.
*384 Fischer, Wood, Burney & Nesbitt, Allen Wood, Corpus Christi, for appellants.
Butler, Binion, Rice, Cook & Knapp, William E. Wright, Houston, for appellee.
OPINION
WILSON, Justice.
Plaintiff-appellee Brazzel recovered judgment against Sid Murray, his wife and the Sid Murray Agency for over $200,000 actual and exemplary damages in a jury trial. The subject matter of the suit is Brazzel's claim for agent's renewal commissions, which he contends he is entitled to from his sale of insurance while a salesman for the Murray Agency, after termination of his employment.
Brazzel's petition alleged three counts: (1) the breach of his 1948 written agency contract with the Murray Agency; (2) an action, as he says, "based upon promissory fraud or deceit arising from misrepresentations originally made in 1946 and repeated continually until termination" of his employment in 1963; (3) an action based on alleged wrongful termination by Murray in 1963.
We look first to determine whether the 1948 contract, the interpretation and alleged breach of which is regarded by the parties as of cardinal import in consideration of the other two counts, will support recovery. Excerpts from the portions of the contract which are deemed material to this appeal are quoted in the footnote.[1]
Appellee relies on a "finding" by the trial court that the 1948 contract provides for vested renewal commissions irrespective of termination of employment. He *385 argues this "finding" is unassailed by appellants. In a jury case the trial court is not authorized to make findings other than those specified in Rule 279, Texas Rules of Civil Procedure. Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219, 220; see authorities cited, Sears, Roebuck and Company v. Coker, Tex.Civ.App., 428 S.W.2d 710, syl. 1, writ ref. n.r.e. Consequently we do not, as appellee urges, treat the court's conclusion of law procedurally as constituting such a finding. From its 139 points appellants present 26 pertaining to the 1948 contract, its construction and effect; and they have effectually preserved their attack on this basis of recovery.
Appellee concedes the 1948 contract was not induced by fraud. He states it is unambiguous, and correctly expresses the agreement of the parties. The issue narrows to whether the contract entitles Brazzel to renewal commissions after termination of the contract. The contest over this question, in our opinion, obscured the real issue on the contract aspect of the case, and resulted in trial and submission on an erroneous theory.
The record shows the Murray Agency was engaged in selling "association" insurance to members of organizations such as the State Bar of Texas, engineering, accounting, medical and realtor organizations, whereby insurance was made available at lower "wholesale" rates. Upon approval of an association, Murray obtained proposals from insurance companies, which, if acceptable to the association, were sold to members. Murray kept the association informed of the status of the insurance program, collected premiums and paid claims. Salesmen sold and serviced policies. These comprised disability income protection and major medical insurance.
According to Murray's testimony, in 1961 the major medical insurance had resulted in an excessive loss which would have required a change in coverage or an increase in premium, whereas the income protection business resulted in a profit. It was considered that change in coverage or increase in premium would result in withdrawal of sponsorship by the associations; Murray "could not find any insurance company that was willing to take over the major medical insurance"; and the initial company would not continue the program without reduction in coverage or substantial premium advance.
Murray induced Mutual of New York in 1963 to replace all association insurance, both medical and income protection. The initial company "did not want the business" on this basis, and it was necessary to find a company which "would take the bad business". The new company, under this replacement plan, however, refused to exchange policies and all old policies were cancelled; a group plan was developed by which a master contract was issued to the associations and individual certificates issued to insured members. The plan included reducing loss experience by improved underwriting and modified certificate provisions. Thereafter the original policies "were not on Murray's books", but the original policy holders held certificates under the new group, or master policy agreement issued by MONY.
Murray terminated the 1948 contract in March, 1963. It was not terminated as a result of termination of the agency agreement as referred to in paragraphs 12 and 13 of the 1948 contract. Notice of termination by Murray to Brazzel preceded notice of termination of the agency agreement.
In the wake of voluminous evidence to this general effect, the court submitted without objection by appellee, a special issue inquiring whether Murray recommended "without good cause", that the associations transfer their income protection plans to Mutual Life Insurance Company of New York. The jury answered, "No". There is another jury finding to the effect that Murray intended that the MONY insurance would be a "replacement" of the existing policies. There were numerous other evidentiary findings, and others which we consider immaterial.
*386 We come now to apply the terms of the contract.
By paragraph 13 either party is given the right to terminate after notice. Does Brazzel's right to compensation end with termination? The contract answers this question in the negative, as will be seen; but the right to renewal commissions ended with termination. The latter, by the clear terms of paragraph 4, Brazzel was to receive "so long as this contract shall remain in force and unchanged". When it ceased to be "in force and unchanged" by exercise of the right of termination under paragraph 13, Brazzel's rights became determinable by the provisions of the latter paragraph.
Brazzel's rights and measure of recovery and Murray's obligation upon termination, as delineated under paragraph 13, are that Brazzel is to receive and Murray "does agree to pay the salesman the reasonable and customary price for his business".
Neither the contract, the pleadings, the testimony nor the verdict furnishes a basis or formula from which judgment may be rendered for "the reasonable and customary price" payable for business attributable to Brazzel, and we are not authorized to devise one. Appellant's points complaining of the measure of damages submitted are sustained. That measure is fixed by the contract. The quantum of damage under the contract is a question for the fact finder, which has not yet made a finding.
There are jury findings as to renewal commissions Brazzel would have earned from date of termination to time of trial, as to the probable amount of future renewal commissions, and as to the "market value of business" on Murray's books written by Brazzel prior to termination. None of these findings solve the ultimate issue.
In our opinion recovery is not authorized on the basis of alleged "promissory fraud" or fraudulent representations prior to the 1948 contract. There is no suggestion they induced the written agreement, which "supersedes all previous agreements, whether written or oral".
Brazzel argues that recovery is predicable on a series of jury findings to the effect that in 1959 Murray represented to him that renewal commissions on previous sales "would be paid to him even if he sold no further policies," in order to persuade Brazzel to continue selling; that it was "a custom" of the Murray Agency to continue to pay renewal commissions where policies sold by an agent were replaced.
There is no pleading raising any of these matters as a ground for recovery, even if they can constitute a legally sustainable ground under the evidence. They were all objected to on this ground. By Rule 67, Texas Rules of Civil Procedure written pleadings are necessary to submission of issues. Matthews v. General Accident Fire and Life Assur. Corp., 161 Tex. 622, 343 S.W.2d 251, 254. The latter jury findings will not support a judgment, under the record.
Finally appellee insists none of the appellant's objections to the court's charge by which it raises many of its contentions may be considered. The argument is that Rule 272 was not complied with, in that objections dictated to the court reporter and subsequently transcribed as the Rule authorizes, were so made without "consent" of appellee's counsel as the Rule requires.
The position is untenable. Appellee's counsel was present before the Court and appellant's attorney began dictating his objections with the following preamble: "Now come defendants, and having been supplied a copy of the court's charge, now, in the presence of the court and counsel for all parties make their objections to the charge to the court reporter with the understanding and agreement" that the objections might be subsequently transcribed in the *387 manner provided by Rule 272. Appellee's counsel remained silent. The objections which are contained in 19 pages of the transcript to the charge of 35 issues were orally dictated without any protest from appellee.
After the objections were overruled appellee's counsel said, "We would like to note an objection to the form of defendant's exceptions to the charge on the basis that defendant's counsel has made such an extensive recitation of evidence, allegations and positions of the case that they have tended to conceal and submerge those objections * * * as to allow plaintiff a fair opportunity to recognize the true nature of the objections." Appellants counsel then offered to have the objections typed in advance. This offer was also met with silence.
In this posture of the record we are unable to subscribe to appellee's urging that he did not "consent" to oral dictation. His "Silence gives consent," and he may not now urge he withheld it. By continuing mute during the proceedings appellee effectively fulfilled the consent requirement of the Rule. The complaint as to the form of the objections that they were "extensive, concealed and submerged" are not fairly susceptible of the interpretation that appellee did not consent to use of oral dictation. Neither is the quoted attack on the objections sustainable.
Since the case was tried and submitted on an erroneous theory, and has not been fully developed on a correct theory, it is considered equitable and in the interests of justice to remand. Waldo v. Galveston, H. & S. A. Ry. Co., Tex.Com.App., 50 S.W.2d 274, 277; authorities cited, Pacific Coast Engineering Co. v. Trinity Const. Co., Tex.Civ.App., 410 S.W.2d 797, 801; Appellate Procedure in Texas (1964) Sec. 18.9.
It is not necessary to pass upon appellant's other points.
Reversed and remanded.
NOTES
[1] "1. The Agency agrees to employ the salesman to sell Metropolitan Casualty Insurance Company of New York Professional group health and accident insurance policies. * * *
3. The Salesman shall sell policies only to individual members of such professional groups as shall have approved the insurance plan as offered by the Agency; The Agency shall obtain the approval of the professional groups. * * *
4. The Salesman shall receive, at Corpus Christi, Texas, as compensation for his services a commission of 15% of the first years' premium collected on each policy and a commission of 10% on each renewal premium collected thereafter, so long as this contract shall remain in force and unchanged; said commissions shall be subject to change at any time, subject only to the giving of written notice to the Salesman and any reduction shall apply not only to future policies sold but to the renewals collected on policies sold before such reduction. * * *
12. This agreement is subject to a contract between Metropolitan Casualty Insurance Company of New York and A. S. Murray, hereinafter called "Agency Agreements", and the termination of such Agency Agreement shall automatically terminate this agreement. * * *
13. This agreement may, upon fifteen days written notice by one to the other, be terminated, but in the event of termination, the Agency in consideration of the covenant and agreement on the part of the Salesman that he will not endeavor to induce any policyholder to cause his insurance to lapse, does agree to pay the Salesman the reasonable and customary price for his business, except that if the termination is after termination or notice of termination of the "Agency Agreement", there shall be no obligation on the part of the Agency to buy the Salesman's business; except that if the Agency shall be compensated for the business at the time of such termination, Salesman shall share in the compensation received, in the proportion that his business bears to the total business of the Agency and in direct ratio as his commission compares to the Agency's commission. * * *
16. This agreement is assignable by the Salesman upon approval by the Agency of the purchaser and any subsequent purchaser shall have the same right to assign subject to the approval of the Agency; but the Agency shall have the prior right and option to purchase the business from the Salesman or any subsequent purchaser at the same price obtainable from any third person acceptable to the Agency. * * *
17. This agreement supersedes all previous agreements whether written or oral, and is the full and complete agreement between the parties hereto. * * *" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2909125/ | Richard Alan Dunn v. City of Bellmead
IN THE
TENTH COURT OF APPEALS
No. 10-00-042-CV
RICHARD ALAN DUNN,
Appellant
v.
CITY OF BELLMEAD,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court # 99-1854-1
MEMORANDUM OPINION
The City of Bellmead (the “City”) filed suit against Richard Alan Dunn (“Dunn”) to abate
a nuisance on his property. Dunn appeals from a judgment favoring the City. Because his appeal
does not challenge the merits of the trial court’s judgment or present any preserved complaint
which is subject to review, we affirm.
BACKGROUNDDunn owns property within the city limits of the City of Bellmead, Texas. On his property,
Dunn had accumulated junk, junked vehicles, refrigerators, auto parts, lumber, and other
miscellaneous materials. The City warned Dunn on multiple occasions that the presence of the
junk, refuse, and other discarded materials created a nuisance condition under the City’s
ordinances. In spite of the warnings, Dunn failed to remove the materials from his property. The
City municipal court fined Dunn and ordered him to abate the nuisance. However, Dunn
continued to accumulate junked vehicles, junk, and other undesirable materials on his property.
Because of the continuing condition, the City filed suit against Dunn in district court alleging
that his property constituted a common law nuisance, a nuisance per se, and was in violation of
the City’s ordinances.
The City sought and obtained declaratory and injunctive relief requiring
Dunn to remove all accumulated junked vehicles, junk, rubbish, trash, and discarded material from
his property. The judgment also authorized the City to abate the nuisance if Dunn failed to
comply within thirty days. When Dunn failed to comply, the City abated the nuisance.
DISCUSSION
Dunn presents five points of error on appeal. He complains that: 1) he was entitled to a
“more definite statement” of the City’s pleadings, 2) the City was required to prove his “corporate
existence,” 3) the trial court was required to take “judicial notice” of Rule 12(e) of the Federal
Rules of Civil Procedure, 4) he was denied effective assistance of counsel of choice, and 5) the
trial court failed to rule on various pre-trial motions.
Dunn’s appeal, however, does not challenge the merits of the trial court’s judgment requiring
him to remove undesirable materials from his property and authorizing the City to abate the
nuisance if he failed to comply. Instead, Dunn complains about various procedural aspects of the
proceedings.
1. “More definite statement” of the City’s pleadings
Dunn complains generally that he was entitled to a “more definite statement” of the City’s
pleadings. Every defect, omission, or fault in a pleading, either of form or of substance, which
is not specifically pointed out by exception in writing and brought to the attention of the judge
before the judgment in a non-jury case is signed, shall be deemed to have been waived. See Tex.
R. Civ. P. 90. A special exception, governed by Rule 91, “shall not only point out the particular
pleading excepted to, but it shall also point out intelligibly and with particularity the defect,
omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading
excepted to.” Tex. R. Civ. P. 91; Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San
Antonio 2000, no pet.).
Dunn filed a pleading identified as a “Demand for Bill of Particulars.” To the extent this
pleading may be taken as special exceptions, it does not point out “intelligibly and with
particularity” the pleading excepted to. Also, the record does not reflect whether this “demand”
was ever presented to the trial court, and no written order granting or denying the requested relief
was obtained. We will not review an unpreserved complaint. Tex. R. App. P. 33.1. Dunn’s first
point of error is without merit and is overruled.
2. The City was required to prove Dunn’s “corporate existence”
Dunn contends that the City was required to prove his “corporate existence,” citing to Rules
52 and 93 of the Rules of Civil Procedure. Because the City brought this action against Richard
Alan Dunn, an individual, and did not name a corporation as a defendant, there is no requirement
to allege that “a corporation is incorporated,” and any verified denial of such has no application
to this case. Tex. R. Civ. P. 52, 93(6). Dunn’s second point of error is without merit and is
overruled.
3. The trial court was required to take “judicial notice” of Rule 12(e) of the Federal Rules
of Civil Procedure
Dunn argues that the trial court was required to take “judicial notice” of Rule 12(e) of the
Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure explicitly “govern the
procedure in the United States district courts.” See Fed. R. Civ. P. 1. They have no application
to this action in state court. Dunn’s third point of error is without merit and is overruled.
4. Dunn was denied effective assistance of counsel of choice
Dunn requested a non-licensed attorney to assist him and speak on his behalf during the
proceedings. The City objected, and the trial court sustained the objection. Dunn complains this
denied him effective assistance of counsel of choice. A person may not practice law in this state
unless the person is a member of the state bar. See Tex. Gov’t Code Ann. § 81.102 (Vernon
1998). The “practice of law” includes the managing of an action or proceeding on behalf of a
client before a judge in a court. See id. § 81.101(a) (Vernon Supp. 2001). Only the Supreme
Court may issue licenses to practice law in this state. See Tex. Gov’t Code Ann. § 82.021
(Vernon 1998). Furthermore, neither the Texas Constitution nor the United States Constitution
guarantees a right to counsel in a civil suit, and therefore Dunn cannot make a claim for ineffective
assistance. Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.—Beaumont 1998, pet. denied);
Tex. Const. art. I, § 10; U.S. Const. amend. VI. Dunn’s fourth point of error is without merit
and is overruled.
5. The trial court failed to rule on various pre-trial motions
Finally, Dunn complains that the trial court failed to rule on certain pre-trial motions. As a
prerequisite to presenting a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion and that the trial
court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule
thereon. Tex. R. App. P. 33.1. Because the record does not reflect that the trial court either ruled
or refused to rule on any of the various motions Dunn complains about, nothing is presented for
review, and Dunn’s final point of error is overruled.
CONCLUSION
Because Dunn has failed to show error, we affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed April 4, 2001
Do not publish | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2432298/ | 456 S.W.2d 191 (1970)
Ladell Yvonne KIRK et vir, Appellant,
v.
Rebecca Sue BENNETT, Appellee.
No. 4888.
Court of Civil Appeals of Texas, Waco.
May 21, 1970.
Rehearing Denied June 18, 1970.
*192 Beard & Kultgen, M. Frank Beard, Waco, W. A. Keils, Jr., Teague, for appellant.
Naman, Howell, Smith & Chase, George Chase, Roy Barrett, Waco, for appellee.
OPINION
McDONALD, Chief Justice.
This is an appeal by plaintiff from a take nothing judgment in a suit for damages for a miscarriage after plaintiffs' automobile was struck by defendant's automobile.
Plaintiff Kirk sued defendant Bennett alleging she was driving her automobile on U. S. Highway 84 in Freestone County on October 20, 1968, and was attempting to make a left turn onto Farm Road 1361, when she was struck from the rear by an automobile driven by defendant Bennett. Plaintiff alleged the collision was caused by the negligence of defendant; that plaintiff was pregnant; and as a proximate result of the collision she suffered a miscarriage.
Defendant answered by general denial; alleged plaintiff guilty of negligence causing the accident; and that the collision was the result of an unavoidable accident.
Trial was to a jury which found:
1) Defendant did not fail to keep a proper lookout.
3) Defendant failed to turn to the right immediately prior to the collision.
4) Such failure was not negligence.
6) Defendant did not fail to make proper application of her brakes immediately before the collision.
7A) Defendant was not operating her automobile at an excessive speed on the occasion in question.
8) Plaintiff did not fail to keep a proper lookout on the occasion in question.
10) The collision was the result of an unavoidable accident.
11) Plaintiff did not fail to give a signal of her intention to turn left on the occasion in question.
*193 14) Plaintiff did not drive her automobile from the shoulder of the road onto the lane of traffic just prior to the collision.
17) Plaintiff was damaged $15,000.
The trial court entered judgment on the verdict that plaintiff take nothing.
Plaintiff appeals on one point: The trial court erred in admitting testimony by defendant Bennett, on her re-direct examination to the effect that visibility was obstructed by the hill on the occasion in question, based on her observations at some later time after the collision in question, over the objection of plaintiff that such was an experiment and that the experiment did not meet the conditions as they existed on the day in question; that the experiment was conducted with different cars and under different circumstances from those which existed on the day in question; and objecting to any conclusions drawn or stating any results from such experiment.
The collision occurred between Mexia and Teague on U. S. Highway 84 at the intersection of Farm to Market Road 1336, on October 29, 1968, between 5:00 and 5:30 P.M. Both vehicles were proceeding east toward Teague. Plaintiff was attempting to make a left hand turn when her automobile was struck in the rear by the automobile driven by defendant.
The intersection of the two roads is on the crest of a hill. The distance from the crest of the hill west to the bottom of the hill is approximately 250 to 300 yards. The road is straight, the slope is gradual; and Highway Patrolman Glass who investigated the collision testified there are no obstructions to a view of the intersection other than a possible slight obstruction caused by the hill crest itself. Plaintiff testified the hill does not obstruct the view of the intersection and did not obstruct her view.
Defendant in her oral deposition prior to trial, in response to the question of whether the hill obstructed her view said: "Yes sir, I think itwell, it didn't present a clear view as a whole where you cannot see, it wasn't real vivid but I think it did have something to do with it." On direct examination on the trial defendant testified that you cannot see the intersection as you go up the hill "because of the slope of the road. The intersection is right on the other side of the hill"; that she could not see the plaintiffs' car sitting in the intersection prior to getting to the top of the hill; that she "couldn't see anything in the intersection, the hill obstructed her view"; that she was first aware of the Kirk vehicle when she crested the hill; that immediately upon seeing plaintiffs' vehicle she applied her brakes, but struck plaintiffs' vehicle.
On redirect examination defendant was asked if she had been to the scene since the time of the deposition and tried to find out what the hill does toward obstructing the view. She said "Yes sir," and was asked "What did you do?". She answered: "I took my car and parked it right here, where". Counsel for plaintiff objected "to some experiment * * * which didn't meet the conditions as they existed on this day. It's an entirely different situation from what was presented on this day, for her to go and make an experiment with different cars and different circumstances. We would object to any conclusions drawn from that, or stating any results of any such experiment".
The Court stated: "At this time it will be overruled. I just can't tell yet," and the examination continued by Mr. Chase.
"Q: What did you do Rebecca?
A: On this day?
Q: Yes, go ahead.
A: I parked my car right here, and then I walked back down this slope, and I got down at the level where my Mustang would be, that low. And you cannot see a car right here.
*194 Q: Thats all. We pass the witness.
Mr. Beard:
Q: Just a minute, its not that easy. Did you try parking the car out where you marked F2 on this diagram?
A: Well, I got back and we saw cars going over that place.
Q: And you were where?
A: I was back down as it starts to rise, in the road.
Q: In the road?
A: Yes, in the middle.
Q: In the middle of the road?
A: Yes sir.
Q: And you were stooped down?
A: Yes sir, because I know how far it is on the Mustang."
Plaintiff asserts the only evidence in the record which would support a finding of unavoidable accident is the testimony relating to the obstruction of view caused by the crest of the hill; that prior to the experiment evidence, there was evidence in the record to support either proposition that the hill did or did not obstruct the view; that the evidence of experiment was inadmissible and was calculated to and probably did cause rendition of improper judgment.
We overrule plaintiffs' point.
The experiment was conducted at the scene of the accident using the same road and same hill as involved in the accident. In conducting the "experiment" defendant placed her automobile in substantially the position over the crest of the hill where plaintiffs' automobile was located prior to the collision. After parking her car she "walked back down the slope, and got down to the leval where my Mustang would be". She had the same view of the hill immediately before the accident. The experiment was made and the accident occurred during daylight and during the Fall of the year. The location of plaintiffs' vehicle at the time of the collision and of defendant's vehicle at the time of experiment was at substantially the same place; and the place from which defendant made her observation was at substantially same place it was at the time of the accident, which was the bottom of the slope of the hill.
Evidence of experiment made out of court is admissible when there is substantial similarity between conditions existing at the time of occurrence giving rise to the litigation, and at time experiment is conducted. Identical conditions are not essential. And admission of evidence of experiment made out of court is discretionary whenever dissimilarity between occurrence conditions and circumstances of experiment is minor, or can be made abundantly clear by explanation. Ft. Worth & Denver Ry. v. Williams, Tex., 375 S.W.2d 279.
We think the evidence admissible under the foregoing authority, but if we be mistaken, we think that under the record as a whole, such was harmless. Rule 434 Texas Rules of Civil Procedure.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432304/ | 456 S.W.2d 97 (1970)
James A. POWERS, Appellant,
v.
The STATE of Texas, Appellee.
Lawrence P. DION, Appellant,
v.
The STATE of Texas, Appellee.
No. 42386.
Court of Criminal Appeals of Texas.
March 11, 1970.
On Motion to Reinstate June 10, 1970.
Rehearing Denied July 22, 1970.
Davis Bragg, of Curtis, Duncan & Bragg, Killeen, for appellant.
Stanley Kicar, Dist. Atty., Bruce Bangert, Asst. Dist. Atty., Belton, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
PER CURIAM.
In a joint trial, James A. Powers was assessed sixteen years and Lawrence P. Dion twenty years for possessing marijuana.
The record on appeal does not include sentence pronounced by the court as required by Article 40.09(1), Vernon's Ann. C.C.P.
The appeals are dismissed.
DOUGLAS, Judge.
*98 OPINION
ON MOTION TO REINSTATE
Sentence has been pronounced and another notice of appeal has been given. The appeal is reinstated.
In a joint trial, James A. Powers was assessed sixteen years and Lawrence P. Dion twenty years for possessing marihuana.
The record reflects that the marihuana introduced into evidence was obtained as a result of a search under a warrant.
Appellants contend that the search warrant was based upon an affidavit that did not show sufficient facts to constitute probable cause. The affidavit made before the justice of the peace by Thomas Vernon Wadkins, omitting the formal parts, is as follows:
"* * * That I have good reason to believe and do believe that on or about the 22 day of November, 1968, in the county and state aforesaid David R. Dion, James A. Powers & Derusso did then and there possess a narcotic drug, to-wit, Marijuana And that I have good reason to believe and do believe that said narcotic drug is now concealed by David R. Dion in the said county and state at 1021½ S. Pearl, Belton, Texas which said premises are occupied and under the control of David R. Dion.
"That my belief of the foregoing facts is based upon information received from reliable, credible and trustworthy citizens of Bell County, Texas, which information is as follows, to-wit: that there is marijuana in the house located at 1021½ S. Pearl, Belton, Texas.
"That the above information has been given to the undersigned and to other peace officers by this and other sources of information.
"That because the source of information mentioned in the foregoing paragraph has given information to the undersigned on previous occasions that was correct, and because this same information is given by other sources the undersigned has just reason to believe and does believe that the above described illicit property is being secreted in the above said person."
In Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, the Supreme Court of the United States wrote:
"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were * * *."
The recitations in the affidavit that the affiant had been informed by reliable, credible and trustworthy citizens that appellants possessed marihuana are not sufficient.
There are no underlying circumstances shown in the affidavit in the present case to inform the magistrate "from which the informant concluded that the narcotics were where he claimed they were," as required by the Supreme Court in Aguilar. For this reason, the marihuana seized by virtue of the search warrant based upon the affidavit should not have been admitted into evidence.[1]
The State contends that the case should be affirmed, because there was no objection when the marihuana was offered into evidence.
*99 Appellant filed a motion to suppress all of the evidence seized as a result of the search of the premises without probable cause. At the hearing on the motion to suppress, the affidavit was introduced and it was urged that the affidavit did not show that either of the informants spoke with personal knowledge of the facts. It was urged to the court that the principles announced in Aguilar, supra, and in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, involving the sufficiency of affidavits were not met. The court denied the motion to suppress.
During the trial on the merits, the jury was retired and appellants again introduced the affidavit and search warrant before the court and objected that all of the testimony of the officers be suppressed because of the Aguilar case; the court denied the motion. Objections concerning the search were made before each officer testified and the court permitted the objection to "run along with the testimony." When the marihuana was offered into evidence, no objection was made.
Article 40.09, Sec. 6(d) (3), V.A.C.C.P., provides:
"When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury."
Appellant complied with the terms of Article 40.09, Sec. 6(d) (3), V.A.C.C.P., and to follow the provisions of the statute, we hold that appellants' objections were sufficient and the failure to object when the marihuana was introduced into evidence did not constitute waiver or harmless error.
The judgments are reversed and the causes are remanded.
NOTES
[1] See Gaston v. State, Tex.Cr.App., 440 S.W.2d 297. There facts were detailed and specific in the affidavit to show the underlying circumstances for the informant to conclude that narcotics were at the location described in the affidavit. This Court held that the requirements of Aguilar were met. See the cases collated under Note 4 of Article 18.01, V.A.C.C.P., where this Court has held facts set out in affidavits to be sufficient to show probable cause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432283/ | 456 S.W.2d 156 (1970)
The CHARTER OAK FIRE INSURANCE COMPANY, Appellant,
v.
Mary Frances FEW et vir, Appellees.
No. 484.
Court of Civil Appeals of Texas, Tyler.
June 11, 1970.
Rehearing Denied June 25, 1970.
*157 Ramey, Brelsford, Flock, Devereux & Hutchins, Donald Carroll, Mike A. Hatchell, Tyler, for appellant.
Smith, Johnson & McDowell, Howard S. Smith, William McDowell, Sulphur Springs, for appellees.
DUNAGAN, Chief Justice.
The plaintiff[1], Mary Francis Few, joined pro forma only by her husband, Milburn Few, brought this suit to recover total, permanent workmen's compensation *158 benefits allegedly due as the result of an injury sustained by her on June 20, 1968, during the course and scope of her employment at the Safeway Grocery Store in Mineola, Texas. The case was tried to a jury which found that plaintiff, Mary Frances Few, sustained an accidental injury in the course and scope of her employment; that such injury resulted in total disability beginning June 20, 1968; and that such total disability was permanent. The jury further found that defendant failed, refused and neglected to furnish plaintiff all reasonable medical services within a reasonable time after notice of injury; and that $808.00 would compensate plaintiff for medical services which she contracted on her own after said failure, refusal or neglect.
The trial court entered judgment on the above verdict for both Mary Frances Few and husband, Milburn Few, (and their attorneys) in the lump sum of $10,492.67 plus $808.00 for medical services and interest from the date of judgment.
Defendant's five points of error raise two issues, to-wit: (1) the propriety of entering judgment for community property absent the joinder of one indispensable member of the community as a real party at interest in the litigation, and (2) the legal sufficiency of the evidence to support the jury's finding that defendant failed, refused or neglected to furnish plaintiff medical services as required by Article 8306, Sec. 7, Vernon's Tex.Civ.St.
The points do not challenge the compensability of plaintiff's injury or the duration of her disability. The jury's findings in that regard are conceded for the purpose of this appeal. Consequently, there is no need for us to discuss or summarize the facts surrounding the accident or the medical testimony regarding plaintiff's injury.
The plaintiff was married to Milburn Few at the time of trial, on the date of the accident, and had been so married for 28 years prior thereto.
When plaintiff brought this suit, she joined her husband as a formal or pro forma party only in that portion of her original petition which reads:
"Come now Mary Frances Few, joined pro forma herein by her husband, Milburn Few, hereinafter called plaintiffs, complaining of The Charter Oak Fire Insurance Company, defendant herein, and would show unto the court and jury the following: * * *." (Emphasis ours.)
The original petition also states that "* * * Unless otherwise specifically stated, the word `plaintiff', has reference to Mary Frances Few throughout these pleadings", which makes it clear that no cause of action was stated nor any recovery sought by or for Mr. Few. Plaintiff's original petition was later supplemented, again designating Milburn Few as a pro forma party. Neither of these petitions (the original nor the supplemental) was ever amended to change Milburn Few's status from that of a pro forma party. "Plaintiff" is in the singular throughout the pleadings and no where is the plural "plaintiffs" used in the pleadings including the prayer. Mr. Few did not sign any of the pleadings on file in this cause.
However, the judgment rendered in the case awarded the recovery of compensation benefits not to Mary Frances Few alone but to both her and her husband as parties equal in right, the plural "plaintiffs" being used throughout all decretal portions of the judgment. From this judgment defendant has appealed.
After jury verdict and before judgment was rendered, defendant by written motion complained to the trial court that Milburn Few was only a pro forma party to the action and was not entitled to judgment therein and that the court was without jurisdiction to grant judgment to him. Mrs. Few did not amend her pleadings and bring her husband into the litigation as a real party in interest. It again raised the same complaint in its motion for a new *159 trial, both motions being overruled by the trial court.
A party to a lawsuit joined in a pro forma capacity only is considered to be joined as a matter of form only, usually to satisfy some requirement of pleading or procedure. See Yellow Cab & Baggage Co. v. Smith, 30 S.W.2d 697, 702 (Tex. Civ.App., 1930, writ dism.); Dixie Motor Coach Corporation v. Watson, 138 S.W.2d 314, 315 (Tex.Civ.App., 1940, no writ); 44 T.J.2d, p. 127, sec. 2. A pro forma party does not become a real party at interest in the litigation and he is deemed to have no recoverable interest in the subject matter of the suit. Rhodes v. Taliaferro, 119 S.W.2d 703, 705 (Tex.Civ.App., Ft. Worth, 1938, n. w. h.); Urban v. Field, 137 S.W.2d 137, 139 (Tex.Civ.App., San Antonio, 1940, n. w. h.); Roberts v. Magnolia Petroleum Co., 142 S.W.2d 315 (Tex.Civ. App., Beaumont, 1940, writ ref., 135 Tex. 289, 143 S.W.2d 79); Brown v. Jones, 134 S.W.2d 850, 852, (Tex.Civ.App., Amarillo, 1939, n. w. h.); Houston Gas and Fuel Co. v. Spradlin, 55 S.W.2d 1086 (Tex.Civ.App., Galveston, 1932, n. w. h.); Hill v. Kelsey, 89 S.W.2d 1017 (Tex.Civ.App., Dallas, 1935, writ dism.); Perkins v. Campbell, 63 S.W.2d 567 (Tex.Civ.App., Waco, 1933, n. w. h.); Speer's Marital Rights in Texas, Vol. 2, sec. 750, p. 576.
A "protagonist" is any main or leading character or actor. Webster's New 20th Century Dictionary, Unabridged 2nd Ed.; Webster's Universal Unabridged Dictionary and Atlas of the World; and Thorndike Earnhart, Comprehensive Desk Dictionary. Milburn Few was one of several witnesses who testified upon the trial of the case. The substance of his testimony was that since the accident his wife had suffered pain and was not able to do the housework which she did before the accident in question. Applying the above definition to the record in this case, we do not consider Milburn Few a "protagonist" in any sense of the word.
Affirmative relief cannot be granted to one who stands in a pro forma capacity, Lucas v. Dallas County, 138 S.W.2d 179, 181 (Tex.Civ.App., Dallas, 1940, n. w. h.); Perkins v. Campbell, supra, and a pro forma party remains as such until his status is changed affirmatively. Brown v. Jones, supra.
A husband who has been joined by his wife as a pro forma plaintiff only in suit to recover community property is a party who has an interest in the subject matter of the lawsuit and the recovery, sought but he is not a real party in interest in the litigation, he is only a nominal or formal party without any right to control or direct the course of the suit as well as no right to recovery anything by judgment entered in the cause.
Plaintiff contends that no fundamental error was committed by the trial court and therefore, even though this court should determine that Milburn Few was not a real party plaintiff, there is no reversible error because defendant failed to make timely objection that Milburn Few was not properly before the court.
Milburn Few whose status was pro forma throughout, recovered judgment as if he were a real party at interest. Milburn Few being a pro forma party only and not a real party at interest, the award of affirmative relief to him was not only error, Lucas v. Dallas County, supra, it was fundamental error. Mays & Mays v. Flattery, 252 S.W. 860 (Tex.Civ.App., El Paso, 1923, writ dism.); Urban v. Field, supra. In Hill v. Kelsey, supra, the court said "* * * while the absence of the husband as a real party might have been raised by plea in abatement or special exception, the defendant is not relegated to that method of raising the issue, but could reach it just as effectively by * * * suggestion of fundamental error on appeal, or otherwise; indeed it became the duty of the trial court itself to refuse to proceed to judgment whenever the omission came to *160 its knowledge. * * *" See Rhodes v. Taliaferro, supra. The trial court could not determine Milburn Few's interest in the benefits which accrued to Mary Frances Few without him being a real party at interest. National Educators Life Insurance Company v. Master Video Systems, Inc., 398 S.W.2d 358, 366 (Tex.Civ. App., Corpus Christi, 1967, writ ref., n. r. e.).
Workmen's Compensation benefits are community property to the extent that they represent disability which accrues during marriage. Piro v. Piro, 327 S.W.2d 335 (Tex.Civ.App., Ft. Worth, 1959, writ dism.); Speer's Marital Rights in Texas, Vol. 1, p. 638, sec. 432; 30 T.J.2d, p. 131, sec. 74; Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d 951, 953 (1935); Glens Falls Insurance Co. v. Yarbrough, 369 S.W.2d 640, 642 (Tex.Civ.App., Waco, 1963, n. w. h.). This court in General Insurance Company of America v. Casper, 426 S.W.2d 606, writ ref., n. r. e., 431 S.W.2d 311, held that any portion of compensation benefits that accrue to an employee during marriage is community property in which claimant and spouse have joint interest. Since Milburn Few was married to Mary Frances Few when her total, permanent disability began, he was the legal owner of any compensation benefits due for his wife's disability to the extent of his community interest therein, and he was a necessary and an indispensable party to any suit for the recovery of such benefits; therefore, it was error to award the whole of the community property recovered herein without his joinder as a real party. General Insurance Company of America v. Casper, supra, and cases cited therein; see Belt v. Texas Co., 175 S.W.2d 622 (Tex. Civ.App., Amarillo, 1943, writ ref.); 67 C. J.S. Parties § 1(3), p. 892; 44 T.J.2d, sec. 3, p. 131; Travelers Insurance Company v. Jacks, 441 S.W.2d 312, 313 (Tex.Civ.App., El Paso, 1969, n. w. h.). This also is fundamental error. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex. Sup., 1966). Appellee in her brief states that the Supreme Court in its Per Curiam Opinion (refusing writ of error, n. r. e.) in General Insurance Company of America v. Casper, 431 S.W.2d 311, held that the nonjoinder of a workmen's compensation claimant's husband is not fundamental error. We do not agree. The Supreme Court merely held that error should not have been characterized as fundamental since the appellant had preserved its error in the trial court. Travelers Insurance Company v. Jacks, supra. See Vol. 23 S. L.J., p. 180-181. In Tyra the Supreme Court speaking through its Chief Justice Calvert said "If Fite were truly an indispensable party to the suit, we would agree that the error in proceeding in his absence was fundamental error which could and should have been noticed by the court of civil appeals on its own motion. * * * Jurisdiction over indispensable parties to a suit is as essential to the court's right and power to proceed to judgment as is jurisdiction of the subject matter. * * *" See Sharpe v. Landowners Oil Assn., 127 Tex. 147, 92 S.W.2d 435 (1936).
The error is not cured by the fact that judgment was rendered in favor of Milburn Few and wife, Mary Frances Few, jointly. Urban v. Field, supra; Houston Gas & Fuel Co. v. Spradlin, supra; Middlebrook v. Zap, 73 Tex. 29, 10 S.W. 732; Milliken v. Smoot, 64 Tex. 171; Speer's Marital Rights in Texas, Vol. 2, sec. 689, p. 489, 490.
The reasons above set forth are sufficient to require a remand of this case; however, in view of the likelihood of another trial, we will discuss the remaining question presented.
A discussion of appellant's remaining question requires a brief summation of the facts in this case. Following her injury at the Mineola Safeway Store, Mrs. Few requested that the ambulance carry her to the Glenwood Clinic in Tyler. There she remained for approximately fifteen days under the care of Drs. Wood and Knight; she was examined once by Dr. DeCharles, *161 a specialist. No representative of appellant contacted Mrs. Few until after she was released from the clinic and returned home and the evidence does not show what Mrs. Few was told concerning her medical treatment by appellant at that time, if anything.
Upon her release from the clinic, the doctors told Mrs. Few to return periodically for out-patient treatment; she did return three times within the next month. On her last visit she was told to return for further treatment if she was not able to return to work at the end of ten days. She did not return to the clinic again, but started consulting with Dr. Thomas of Mineola without appellant's knowledge or consent. She received from appellant after approximately ten visits to Dr. Thomas, a letter stating that appellant could authorize no further treatment by Dr. Thomas and requested that she make an appointment with Dr. DeCharles of Tyler. Mrs. Few sent this letter to the Industrial Accident Board which replied that in its opinion the insurer was within its right to select the medical service, as evidently her case required treatment by a specialist. Mrs. Few stopped seeing Dr. Thomas, but rather than make an appointment with Dr. DeCharles, she consulted instead Dr. Jones, her family physician also without appellant's knowledge or consent.
Appellant paid all the expenses incurred at the Glenwood Clinic and the fees of Drs. Wood, Knight and DeCharles. It refuses to pay any of the fees of Drs. Thomas and Jones, and here complains that the trial court erred in awarding judgment against it for those fees as there was no evidence upon which the jury could have found that it refused, failed or neglected to furnish reasonable medical aid. Under the record as developed below, we must agree with appellant's contention but only as to the fee of Dr. Jones. The record discloses that in response to Plaintiff's Request for Admissions, appellant admitted the truth of request number twenty-eight (28) to the effect that it had agreed to pay for the services of Dr. Thomas. Having so admitted the truth of that fact under oath as required by Rule 169, Texas Rules of Civil Procedure, appellant is bound by its admission.
Article 8306, sec. 7, V.T.C.S.[2], places upon appellant the burden of furnishing *162 such medical aid as may reasonably be required as a consequence of the injury. It also specifically sets out the conditions under which the employee may, on his own, contract for medical aid at the expense of the insurer. These conditions are, (1) at the time of the injury or immediately thereafter, to administer first-aid treatment as may be reasonably necessary; and (2) thereafter only if the insurer has been notified of the injury and has refused, failed or neglected to furnish reasonable medical aid.
We recognize as a general proposition that the Workmen's Compensation Act should be construed liberally so as to effectuate the beneficent purposes for which it was enacted. Travelers Insurance Co. v. Adams, 407 S.W.2d 282 (Tex.Civ. App., Texarkana, 1966, ref., n. r. e.). It is equally true that the recovery of medical expenses incurred as a result of compensable injury is purely statutory; there can be no recovery in conflict with the statute. Robertson v. National Surety Corp., 208 F.2d 642 (Fifth Circuit, 1953).
Article 8306, sec. 7, V.T.C.S., is clear and unambiguous on this point. "* * * The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid * * * unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time. * * *" (Emphasis added.) The purpose of such a provision must be to give the insurer an opportunity to select and contract with a physician of its own choosing. See American Indemnity Co. v. Nelson, 201 S.W. 686 (Tex.Civ.App., 1918, no writ).
Appellee argues strongly that "It is not reasonable that the claimant must abandon treatment by a doctor of her choosing and submit to treatment by another and different doctor not of her choosing, simply because the carrier says to do so. * * *" But that is exactly what is allowed by the statute.
The statute recognizes that first-aid is often needed immediately after the injury with no time to inform the insurer of the need for such aid. But after the immediacy of the situation is past and the insurer has notice of the injury, the statute provides that then the insurer must be given a reasonable time in which to contract for and furnish medical aid of its choosing. If the company chooses to offer a doctor other than the one originally selected by the employee, it has that right. The insurer may, of course, leave the choice of physicians entirely in the hand of the employee. But if the insurer informs the employee within a reasonable time that it can no longer authorize treatment by a doctor selected by the employee and affirmatively offers specific, reasonable medical aid, that insurer has fulfilled the requirements of the statute. The only recourse for the employee is to request the Industrial Accident Board to order a change in physicians under Art. 8306, sec. 7a, V.T.C.S., or to refuse the proffered physician and contract for services by another doctor at the employee's expense. Without a showing that the company did not offer their choice of physicians within a reasonable time or some other action or inaction by the insurer amounting to a refusal, failure or neglect, the insurer is not liable for expenses incurred by the employee. See Travelers Insurance Co. v. Garcia, 417 S.W.2d 630 (Tex.Civ.App., El Paso, 1967, ref., n. r. e.); Texas Employers' Insurance Association v. Steadman, 415 S.W.2d 211 (Tex.Civ. App., Amarillo, 1967, ref., n. r. e.); Liberty Universal Insurance Co. v. Gill, 401 S.W.2d 339 (Tex.Civ.App., Houston, 1966, ref., n. r. e.); United States Fidelity and Guaranty Co. v. Camp, 367 S.W.2d 952 (Tex.Civ.App., Houston, 1963, ref., n. r. e.); Travelers Insurance Co. v. Hernandez, 276 F.2d 267 (Fifth Circuit, 1960).
For all the reasons set out above, this case is reversed and remanded to the trial *163 court for new trial in accordance with this opinion.
Reversed and remanded.
MOORE, Justice.
I respectfully dissent from that part of the majority opinion reversing the judgment on the ground that there was a defective joinder of the parties.
Appellant makes no complaint of the judgment on its merits. The only complaint is that the court did not have jurisdiction to enter the judgment because the husband was joined only as a pro forma party as distinguished from a real party. Appellant made no objection to the joinder of the husband as a pro forma party until after trial when appellees presented the trial court a proposed judgment in which the husband and wife were allowed to recover jointly.
While from a purely technical standpoint, the conclusion reached by the majority appears to have some support in the cases cited therein, I do not believe that the application of these narrow, technical rules are applicable under the facts or the present day rules of civil procedure. I am opposed to a reversal of the case on the ground that there is a defect in the parties for two reasons.
First, it must be remembered that in 1967, the 60th Legislature at page 739, ch. 309, made some significant changes in the law with respect to the rights, duties, privileges, powers and liability of spouses. Among other changes, the legislature passed Art. 4621, V.A.T.S. giving each spouse the exclusive control and disposition of that community property which he or she would have owned if a single person and also provided for combined control and management over all other community property.
At the same session, the legislature also enacted Art. 4626, V.A.T.S., providing that:
"A spouse may sue and be sued without the joinder of the other spouse. When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally." Amended by Acts 1963, 58th Leg., p. 1188, ch. 472, sec. 6, eff. Aug. 23, 1963; Acts 1967, 60th Leg., p. 739, ch. 309, sec. 1, eff. Jan. 1, 1968.
Thus, since the legislature granted the wife sole management and control over that community property which she would have owned if a single person and also provided that she is to have joint control over all other community, I take the position that in passing Art. 4626, supra, the legislature intended to grant the wife the right to protect her interest in the community by suing without the joinder of her husband. At any rate however, Art. 4626 specifically provides that, "A spouse may sue and be sued without the joinder of the other spouse. * * *" To me this language is plain and clear. While the second sentence of the statute does say that "When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally. (emphasis supplied), I do not believe the legislature intended to grant the wife the right to sue in the first sentence and take away such right in the second sentence by merely providing that the husband "may" be joined where the claim is joint and several.
Secondly, I do not agree with the majority because as I view the record the husband actively participated in the trial of the cause. The record shows that he appeared and testified in behalf of his wife. For this reason I do not understand how the majority could have reached the conclusion that the husband was not a protagonist "in any sense of the word". Contrary to the majority, I take the position that his conduct in testifying in the case in *164 behalf of his wife is sufficient to show that he was a protagonist and was interested in the litigation in behalf of his wife. Because of these circumstances I find myself in complete agreement with what is said in McDonald, Texas Civil Practice, Vol. 1, sec. 3.08.1, p. 243 (citing cases) as follows:
"What is the effect, in such actions, of the petition's naming the wife as plaintiff and joining the husband `pro forma'? Some technical decisions prior to the Rules of Civil Procedure held such pleading insufficient to make the husband a real party. It has even been held that the judgment may not properly include the husband's name when he is joined pro forma, and that if it does he is not bound. But holdings which predicated an insufficiency of joinder merely upon the words `pro forma' in the allegations enumerating the parties were inconsistent with the philosophy underlying the Rules of Civil Procedure. One who actively participates in a cause may be bound by the judgment though he is not named as a party: he should not be less so because in the pleadings his name carries a `pro forma' appendix. Even prior to the Rules, when the words `pro forma' clearly were surplusage, they were disregarded. The test applied was whether the husband was `a real, active, militant litigant, (or had merely) entered the suit pro forma for the purpose of technically clothing his wife with authority to maintain the suit in her own right'. There should no longer be any doubt that the joinder is sufficient when the record as a whole shows that the husband was an active protagonist. Even without this affirmative showing, the husband's joinder, qualified by a pro forma, should be sufficient absent a contention that he has been joined without his knowledge or consent."
I would reform and affirm the judgment.
NOTES
[1] For convenience, the parties will be designated as they appeared in the trial court.
[2] "The association shall furnish such medical aid, hospital services, nursing, chiropractic services, and medicines as may reasonably be required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury. Such treatment shall include treatments necessary to physical rehabilitation, including proper fitting and training in the use of prosthetic appliances, for such period as the nature of the injury may require or as necessary to reasonably restore the employee to his normal level of physical capacity or as necessary to give reasonable relief from pain, but shall not include any other phase of vocational rehabilitation. The obligation of the association to provide hospital services as herein provided shall not be held to include any obligation on the part of the association to pay for medical, nursing or surgical services not ordinarily provided by hospitals as a part of their services. If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association. The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital services, nursing, chiropractic services, or medicines, nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time. At the time of the injury or immediately thereafter, if necessary, the employee shall have the right to call in any available physician, surgeon, or chiropractor to administer first-aid treatment as may be reasonably necessary at the expense of the association." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432284/ | 456 S.W.2d 374 (1970)
Pomposa OLIVIA GARZA, Appellant,
v.
The STATE of Texas, Appellee.
No. 42957.
Court of Criminal Appeals of Texas.
July 15, 1970.
*375 Clyde W. Woody (on appeal only), Marian S. Rosen (on appeal only), John P. Farra (on appeal only), Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough, and Ted Hirtz, Asst. Dist. Atty., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The conviction is for the possession of heroin; the punishment, fifty years.
Officers of the Houston Police Department found 177 grams of 58% heroin at appellant's lounge. The record shows that appellant was arrested on West Dallas Street and the officers proceeded to her home at 1102 Stanford Street and began the search. There she asked to talk to Officer Michael Chavez. Before she made any statement, Officer Chavez warned her that she had a right to have a lawyer present to advise her prior to or during any questioning; that if she were unable to employ a lawyer, she had a right to have a lawyer appointed to counsel with her prior to or during any questioning; that she had a right to remain silent and not make any statement at all; that any statement she made might and probably would be used against her at a trial; and that she had a right to terminate the interview at any time.[1] She then told Officer Chavez that they would find the heroin at her lounge on West Gray. The officers at the direction of appellant found heroin at various places in the lounge.[2]
The sufficiency of the evidence is not challenged. Appellant presents two grounds of error wherein she complains of the search of her premises.
In the first ground of error, it is contended that the heroin was obtained as a result of a search warrant based on an affidavit that did not show probable cause for the search. The affidavit is stronger than the affidavits in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434; Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435; Brown v. State, Tex.Cr.App., 437 S.W.2d 828, all of which were held sufficient to show probable cause.
The affidavit in the present case, made before a corporation court judge, omitting the formal parts, is as follows:
"Before me, the undersigned authority, on this day personally appeared the undersigned affiants, who being by me severally sworn, upon their oaths state, that: A certain building, house and place, occupied and used as a private residence, located in Harris County, Texas, described as a one story brown brick building, located at 1102 Stanford Street, in the City of Houston, County of Harris and the State of Texas, and all out buildings and motor vehicles appurtenant to the above described premises *376 and being the building, house or place of Olivia Garza a Latin American Female and other person or persons unknown to the affiants by name, identity, or description is a place where we each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building, house and place has in Her possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 20th day of June, A.D. 1968, SEE AFFIDAVIT ATTACHED
"On June 16, 1968, affiants received information from a reliable and credible person that Olivia Garza had Heroin in her possession for the purpose of sale. The informer further stated that Olivia Garza was selling Heroin at the La Habana Lounge at 508 Louisiana and Garza's Lounge, 240 West Gray, and that she lived at 1102 Stanford Street. This person giving the information on Olivia Garza has in the past on three occasions given affiants information on people possessing narcotics for use and sale. And on each occasion the information proved to be true and correct.
"The affiants believing the information to be true and correct set up surveillance on the La Habana Lounge 508 Louisiana Street between the hours of 12;00 PM and 5;30 PM on June 17, 1968. At 2;30 PM the affiants observed a Latin American Male who is a known user of narcotics drive up in front of the La Habana Lounge and park. Olivia Garza came out of the lounge, and went to the window on the drivers side of the automobile and leaned over and appeared to talk to the driver. Olivia Garza put her hand through the window of the automobile and then straightened up and reentered the Lounge. As she was reentering the lounge she appeared to be examining something in her hand. At 3;55 PM affiants observed another Latin American Male who is a known user of Narcotics enter the lounge at 508 Louisiana Street. He was in the Lounge for approximately one minute and exited at approximately 3;56 PM and stood beside the door of the Lounge. Olivia Garza walked out of the Lounge and approached the Latin American Male. As she approached the Latin American Male he reached into his right trouser pocket and handed something to Olivia Garza, which she took, looked at and then returned to the inside of the lounge, came back out side to the Latin American Male handed something to him which he examined and placed in his left shirt pocket, then turned and walked South on Louisiana to Texas Avenue. Olivia Garza returned inside the lounge.
"On June 18, 1968, affiants resumed surveillance on the La Habana, 508 Louisiana, between the hours of 12;15 PM and 4;00 PM. At 1;20 PM, affiants observed Olivia Garza exit from the lounge walk north on Louisiana to Prairie, west on Prairie to the south east corner to Prairie and Smith, where she met a Latin American Male who is a known user of Narcotics. Olivia Garza handed something to the Latin American Male and accepted something in return. Olivia Garza turned and returned to the lounge by the same route. The Latin American Male walked north on Smith Street to Preston Avenue. At 2;15 PM affiants observed a Latin American Malw who is a known user of narcotics parked in front of the Lounge, at 508 Louisiana. Olivia Garza walked out of the lounge directly to the automobile, where she handed something through the window to the Latin American Male driving and excepted something in return. She then turned and walked inside the lounge. The Latin American Male drove north on Louisiana to Prairie and west on Prairie.
"On June 19, 1968, Affiants set up surveillance on Garza's Lounge at 240 *377 West Gray at 12;10 PM. At 2;30 PM affiants observed Olivia Garza leave the lounge at 240 West Gray, enter a white and brown 1955 Chevrolet with a Latin American Female and two children. Officer Bell followed the 1955 white and brown Chevrolet occupied by Olivia Garza to 1102 Stanford. She entered the house at 1102 Stanford and the unknown Latin American Female and the children remained in the automobile. Olivia Garza entered the house at approximately 2;35 PM and exited at approximately 2;39 PM and drove to the 1400 block of Genesee Street where she parked. While Officer Bell was following Olivia Garza, Officer Chavez maintained surveillance at the Lounge at 240 West Gray, and observed a Latin American Male park a 1957 Chevrolet in front of the lounge and enter. The subject returned immediately to his automobile and was recognized as a known user of narcotics by Officer Chavez. The Latin American Male drove his automobile by Officer Chavez to the 1400 block of Genesee where he met Olivia Garza and an exchange was made, between the occupants of the two automobiles. The Latin American Male continued north on Genesee and Olivia Garza returned to the lounge at 240 W. Gray."
Appellant relies on the opinion in Acosta v. Beto, 297 F. Supp. 89 (U.S.D.C., S.D. Texas, 1969), which held (contrary to this Court) that the warrant based on an informant's tip plus surveillance of the officers was insufficient under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637. The Court held, however, that the information possessed by the officers but not alleged in the affidavit could be combined with the attempted flight and circumstances of Acosta's apprehension to justify an arrest and subsequent search without a warrant.
After appellant filed his appellate brief in the trial court, the United States Court of Appeals for the Fifth Circuit held (as did this Court) in Gonzales v. Beto and Acosta v. Beto, 425 F.2d 963 (5th Cir., May 6, 1970), that the affidavits in those cases were sufficient to show probable cause for the issuance of a search warrant and were not in violation of the Fourth Amendment provision against unreasonable searches and seizures.
The Court discussed the Aguilar and Spinelli cases and noted that the informant's tip, the statement to show reliability of the informant and the surveillance of the officers in each case were sufficient for a detached magistrate to believe the elements offered to show probable cause.
In accordance with our previous decisions and that of the Fifth Circuit in the Gonzales and Acosta cases, supra, we hold that the affidavit in the present case is sufficient to show probable cause.
The first ground of error is overruled.
Appellant's second ground of error is as follows:
"The trial court committed reversible error in allowing evidence to be introduced against Defendant which was obtained by virtue of the execution of the arrest warrant contained within the search warrant as aforesaid for the reason that said arrest warrant is an unauthorized delegation of judicial authority to the executive branch."
Appellant contends that the combination search and arrest warrant was invalid, and the statement of appellant and the results of the search should not have been admitted.
Article 725b, Sec. 16, Vernon's Ann.P. C., provides for the issuance of search warrants for narcotic drugs and that all proceedings relative thereto shall conform as near as may be to the provisions of Title 6 of the Code of Criminal Procedure. The pertinent statutes under Title 6 of the 1925 Code of Criminal Procedure are now Articles 18.10 and 18.11 of the 1965 Code and they provide that a warrant to arrest *378 may issue with a search warrant and that a search warrant may order an arrest.
In Collins v. State, 170 Tex. Crim. 196, 339 S.W.2d 913, this Court held that the arrest of Collins at a cafe away from the premises searched was authorized under the terms of the search warrant and the subsequent search was legal.
In Doby v. State, Tex.Cr.App., 363 S.W.2d 286, this Court held that Garcia v. State, 170 Tex. Crim. 328, 340 S.W.2d 803, was controlling and wrote:
"[T]he search warrant and the warrant of arrest therein authorized the arrest of the appellant who was in possession of the premises described. The arrest being lawful the search of appellant's person incident thereto was legal."
In Giacona v. State, 169 Tex. Crim. 101, 335 S.W.2d 837, counsel contended that the order for the arrest of Tony Giacona was not valid because it was contained in the search warrant, and such contention was answered adversely to him. The order for an arrest has been authorized by statute and has been approved by this Court. We find no delegation of authority from the judiciary to the executive branch. The second ground of error is overruled.
The judgment is affirmed.
NOTES
[1] Judge Walton then conducted a hearing and found that her statement was made voluntarily after having been warned. The matter of voluntariness of the oral confession was also submitted to the jury.
[2] The prosecutor argued without objection that heroin of the value of $256,650 was found there. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432288/ | 398 F. Supp. 2d 275 (2005)
ODEGARD INC., Plaintiff,
v.
SAFAVIEH CARPETS, INC. and Safavieh, Inc., Defendants.
No. 04 Civ. 4142(RWS).
United States District Court, S.D. New York.
November 8, 2005.
*276 Arthur R. Lehman, LLC, New York, NY (Arthur R. Lehman, of counsel), for Plaintiff.
Ostrolenk, Faber, Gerb & Soffen, New York, NY (Robert C. Faber, Peter S. Sloane, Charles P. Guarino, of counsel), for Defendants.
OPINION
SWEET, District Judge.
Defendants Safavieh Carpets, Inc. and Safavieh, Inc. ("Safavieh") have moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment to dismiss the claim of copyright infringement contained in the complaint of plaintiff Odegard Inc. ("Odegard"). For the reasons set forth below, the motion is granted.
Prior Proceedings
On June 2, 2004, Odegard filed its complaint alleging causes of action for copyright infringement, unfair competition, conversion and unjust enrichment arising out of the alleged substantial similarity between the Mahogany carpet in Safavieh's Rodeo Drive collection and the Takyu III design in Odegard's Kyoto collection. An answer containing affirmative defenses and counterclaims was filed and Odegard filed its reply. Discovery was had and the instant motion was marked fully submitted on July 13, 2005.
The Facts
The facts are set forth in the parties' Local Rule 56.1 Statements. For the purposes of this motion, Safavieh does not challenge Odegard's assertion that Safavieh had access to Odegard's Takyu III design.
Odegard designs, manufactures, and sells Tibetan carpets. Among its various lines of carpets, Odegard sells a design called "Takyu III."
Stephanie Odegard is the president of Odegard who created the Takyu III design in the middle to late 1990's, elements of which were inspired by and derived from *277 an antique Japanese kimono depicting vines. Odegard sells the Takyu III carpet as part of its "Kyoto Collection."
Takyu III is a hand-drawn design. The work "takyu" means vine in the Tibetan language, perhaps a particular vine. The spindly vines in Takyu III turn and curl in every direction. In Takyu III some of the vines spill from the broken border into the large open field at the center of the design. Most of the vines in Takyu III have stems and leaves and curlicues. Some of the vines in Takyu III have multiple leaves on the vine stems and have a floralesque aspect. Most of the vines in Takyu III are curvilinear, constituting a curvy design rather than a geometric, straight-edge design. The blocks of color in the border of the Takyu III design are separated by straight edges between them except that the handmade process sometimes alters the straight appearance. Each edge between the colored blocks in the border of Takyu III consists of a narrow scissored line.
Borders are common elements in carpet design while broken borders are not. Branches of plants are common elements in carpet design. The combination of patterned borders (but not broken borders) and floral motifs were commonly used in carpets before the middle to late 1990's.
Odegard carpets are known for their "contemporary classic" design.
U.S. Copyright Registration No. VA-1-035-311 for the Takyu III fabric design identified the textile design created by Odegard known as "Takyu" as a preexisting work on which Odegard holds a copyright registration and identified the material added to the work as motifs selected from "Takyu" and made into a new design layout. The fabric design known as "Takyu III" was created by Stephanie Odegard.
In addition, the unrebutted affidavit of Stephanie Odegard, president of Odegard, describes her background, including service in the Peace Corp., familiarity with Tibetan products, and the development and establishment of Odegard and its success in the design world. Odegard is preeminent in the importation of hand-knotted woolen carpets, its sales exceed $10 million and its sales of 350 Takyu III rugs have produced $1.6 million in revenues. Odegard has spent $300,000 between 2000 and 2004 advertising the Takyu III rug. Stephanie Odegard described in detail the process by which she created the Takyu III design.
Safavieh sells carpets in the United States and among its many designs Safavieh sells a collection called the "Rodeo Drive Collection" which includes a carpet design named "Mahogany." Sales of the Mahogany design totalled $5,196.20 and have been discontinued.
Albert Laboda ("Laboda"), the employee of Safavieh who created the Mahogany design of Safavieh used a computer to create the Mahogany design. Laboda, who was employed for about a year, is no longer an employee of Safavieh and is a missing witness.
Odegard advertised its Takyu III design from 2000 to 2004 in prominent design magazines, many of which are regularly read by Safavieh employees.
Summary Judgment Is Appropriate
Summary judgment may be granted when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Non-infringement may be determined as a matter of law. Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. *278 1986), citing Warner Bros. v. American Broadcasting Companies, 720 F.2d 231, 240 (2d Cir.1983), cert. denied, 476 U.S. 1159, 106 S. Ct. 2278, 90 L. Ed. 2d 721 (1986).
Courts in the Second Circuit have granted motions for summary judgment on non-infringement in copyright cases. See, e.g., Williams v. Crichton, 84 F.3d 581 (2d Cir.1996); Churchill Livingstone, Inc. v. Williams & Wilkins, 949 F. Supp. 1045 (S.D.N.Y.1996). The Second Circuit has held that where both the plaintiff's and defendant's works are before the court, "the court may compare the two works and render a judgment for the defendant on the ground that as a matter of law a trier of fact would not be permitted to find substantial similarity." Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980).
To establish copyright infringement, Odegard must prove: (1) ownership of a valid copyright, and (2) infringing copying of constituent elements of the works that are original. Eve of Milady v. Impression Bridal, Inc., 957 F. Supp. 484, 487 (S.D.N.Y.1997), citing Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139 (2d Cir.1992); Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996), citing Feist Publications, Inc. v. Rural Tel. Servs., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). For the purposes of this motion, Safavieh has assumed, without admitting, that Odegard owns a valid copyright in the Takyu III design and that it had access to the Takyu III design.
The Differences Between The Designs
The hand-drawn Takyu III design is characterized by its meandering vines which run and curl in every direction. The vines have clearly defined leaf shapes, joined to the vines at one end of the leaf, as occurs in nature. The computer-generated Mahogany design has no vines or curls but relatively long and straight lines, interspersed with uniformly shaped oval figures, displayed in a diagonal arrangement. Some lines pierce and run through the oval figures. Other lines are broken up by, and connect, the oval figures.
The Takyu III design has leaves on certain vines. All the leaves are leaf-shaped, not ovals. The leaves are also sized differently. Some vine branches have very small leaves, almost like spines along the vines. The Mahogany design has oval shapes of uniform size only, some intersected by lines, and no leaf shapes at all.
The lines and only oval shapes in Mahogany create a design of contrasting geometric shapes with lines and ovals in place of the vines in Takyu III which are curvy in appearance and "floralesque."
The floral appearance of the Takyu III design results in part from the random extensions of the vines into the large field at the middle of the design. The vines in Takyu III are of irregular length and, as a result, are not confineable to a narrow border region. The Mahogany design does not have anything displayed in the field in the middle. The shapes and lines in the border end where the border meets the field.
The broken borders, too, are different between the two designs. The colored blocks in Takyu III abut each other, adjacent blocks demarcated only by narrow-width parallel lines. The colored blocks in the Mahogany design are separated by thick, jagged lines which are not even uniform in thickness.
Some of the colored segments in the border of the Mahogany design are not fully separated. Some segments have dividing lines that start at the edge of the carpet, stop in the middle of the border, *279 and start again before reaching the middle field.
Takyu III has 14 distinct colored blocks in its border. Mahogany appears to have 19 blocks, unevenly arranged.
The Takyu III design shown in the deposit material to the copyright application includes a colored border block displayed with the same light blue color pictured in the field in the middle of the design, creating the appearance of an asymmetric design. The border design in the Mahogany carpet, on the other hand, appears symmetrical. The color in the field is offset by the non-matching color shown in each and every block in the surrounding border.
The combination of colors shown in the deposit material also differs entirely from any combination of colors used by Safavieh for its Mahogany design. The combination of light blue, dark blue, olive, ivory and orange displayed in the deposit material are missing from any of the accused designs.
The "More Discerning Observer" Test Is Applicable
It is a reasonable inference under the circumstances here that Laboda used the Takyu III design in creating his computer design. He is no longer employed, there are no records of his design work, and those to whom he submitted his design did not observe him as he created his design. Because of Odegard's prominence and advertising, access is presumed for the purpose of this motion. However, that inference does not end the inquiry.
Illegal copying is proved by showing substantial similarity, not between the works as a whole, but only as between the protectable elements of the copyrighted work and the accused infringing work. See Folio Impressions Inc., v. Byer California, 937 F.2d 759, 765-66 (2d Cir.1991); Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995).
The protectable elements in the Takyu III design must not include any elements in the public domain such as the vines, including the leaves, stems and curlicues, derived from the "Takyu" Japanese kimono which was identified as preexisting material in the Certificate of Registration for the Takyu III design.
Certain elements of the Takyu III design, such as borders and branches, are common elements in carpet design and the combination of patterned borders and floral motifs were commonly used in carpets before the middle to late 1990's.
Therefore, the only protectable aspect of the Takyu III design is the selection and arrangement of the otherwise unprotectable elements. Indeed, the Certificate of Registration for Takyu III indicates that the material added to the preexisting work are motifs selected from "Takyu" that have been made into a new design layout. That new layout consists of vines meandering around the broken border and straying into the large open field.
Odegard's selection and arrangement of the meandering vines and broken border into a new layout is entitled to only a narrow scope of protection. In Feist Publications, Inc. v. Rural Tel. Servs., Inc., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991), the Supreme Court held that copyright protection in the selection, coordination and arrangement of otherwise uncopyrightable elements is "thin" because the scope of the copyright is limited to the particular selection or arrangement. Id. at 349-51, 111 S. Ct. 1282. Furthermore, a "subsequent [author] remains free to use [the public domain elements] to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement." Id.
*280 The difficulty of the application of the "ordinary observer" standard and the "more discerning" ordinary observer standard is exemplified by the Court of Appeals discussion of the standards in Hamil America, Inc. v. GFI, 193 F.3d 92 (2d Cir.1999). In that case the court stated:
Here, there is no contention that either party imported unprotectable material from the public domain into its floral fabric design. We therefore need not apply the "more discerning" ordinary observer standard.
Id. at 102.
In discussing the "more discerning" standard considered in Folio Impressions, the court stated:
Having narrowed the scope of the copyright, we applied a "more discerning" ordinary observer test and compared only the protected portion of the design that is, the roses and the way they were arranged, rather than their display against the background to the allegedly infringing fabric design. Folio Impressions, 937 F.2d at 765-66; see also Knitwaves, 71 F.3d at 1003.
Id. at 101.
Based on these authorities the "more discerning ordinary observer" test is applicable in determining substantial similarity.
The Designs Are Not Substantially Similar
Odegard does not dispute that its copyright is limited to its original contributions in selecting, modifying, coordinating, coloring and arranging the public domain elements found in its work. As such, the copyright in Takyu III is "thin" because its scope is limited to the particular selection or arrangement. Feist Publications, Inc. v. Rural Tel. Servs., Inc., 499 U.S. 340, 349-51, 111 S. Ct. 1282, 113 L. Ed. 2d 358. See also Beaudin v. Ben & Jerry's Homemade, Inc., 95 F.3d 1, 2 (2d Cir.1996) ("Where the quantum of originality is slight and the resulting copyright is `thin,' infringement will be established only by very close copying ..."). Here, any copying is not "very close" because the Mahogany design does not feature the same selection and arrangement of public domain elements found in Takyu III.
Notwithstanding its admission of the public domain elements found in Takyu III, Odegard has argued that the Takyu III has no public domain elements. According to Odegard, the "Takyu" design identified as preexisting material in the Certificate of Registration for Takyu III is not the same Japanese kimono found in the public domain, but rather the first design created by Stephanie Odegard based upon that Japanese kimono. To the extent that the public domain elements found in the Japanese kimono served as a basis for the design of Takyu, and to the extent that Takyu was a predecessor design to Takyu III, the vines found in Takyu III are still public domain elements that should be discounted in any infringement and analysis.
In granting summary judgment on non-infringement for the defendant, the court in Maharishi Hardy Blechman v. Abercrombie & Fitch Company, 292 F. Supp. 2d 535, 554 (S.D.N.Y.2003), stated that the "noted differences are merely illustrative of a factual finding which is difficult to explain."
Knitwaves, Inc. v. Lollytogs Ltd., Inc., 71 F.3d 996 (2d Cir.1995), is relied upon by Odegard. Unlike in the case at bar, the copyrighted sweaters in Knitwaves were original creations in their entireties. Id. at 1004 n. 3. Furthermore, the defendant Lollytogs also had chosen to use the same two fall symbols, leaves and squirrels, used by the plaintiff Knitwaves. Id. at 1004. Consequently, according to the court, "an observer viewing the sweaters side by side *281 cannot help but perceive them as coming from one creative source." Id.
Here, no reasonably discerning consumer (i.e., one who would spend thousands of dollars on a carpet) would expect the two designs to share a common source of origin. Odegard's Takyu III looks like the expensive hand-made carpet that it is and Safavieh's computer-generated Mahogany rug is not substantially similar.
Indeed, it is the differences in the individual details that make the overall designs decidedly different in look and feel. No reasonably discerning observer would find that the Mahogany design has a "floraesque" appearance like the classic design in the Japanese-inspired Takyu III. The same consumers would not be interested in comparing or buying both designs for the same purpose and the Mahogany rug would not be viewed as a viable commercial substitute for the Takyu III carpet.
Odegard's reliance upon Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir.2003) is misplaced. In Tufenkian, the Second Circuit noted that it was "one of those relatively unusual cases" where the infringing work copies the "particular" or "same" selections made in the copyrighted work. Id. at 136. The selections identified by Odegard are simply not the same as those contained in the Safavieh design.
The border in Mahogany is not the same as the border in Takyu III. The colored blocks in Takyu III abut each other while the differently colored blocks in Mahogany are separated by thick, jagged lines. The vines randomly extend into the large open field at the middle of the Takyu III design, thus emphasizing the floral appearance of the Takyu III design. The Mahogany rug has more blocks, unevenly arranged, than the 14 distinct colored blocks found in the border of the Takyu III carpet. The selections made by Odegard and allegedly copied by Safavieh are far different from those made in Tufenkian.
The Mahogany rug not only lacks the same selection and arrangement of design features found in the Takyu III carpet, but it also lacks the same designs. The lines in Mahogany are not similar to the vines or leaves found in Takyu III. Safavieh has selected, modified, coordinated, colored and arranged different non-copyrightable elements in different ways than Odegard. The differences between the individual design elements establishes that the designs are not substantially similar to the "more discerning ordinary observer."
Conclusion
For the reasons set forth above, the motion of Safavieh for summary judgment is granted and the cause of action for infringement is dismissed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432290/ | 398 F. Supp. 2d 1359 (2005)
In re RHODIA S.A. SECURITIES LITIGATION
Bernard Cerles
v.
Rhodia S.A., et al.,
Oppenheim Pramerica Asset Management S.A.R.L.
v.
Rhodia S.A., et al.,
No. MDL 1714.
Judicial Panel on Multidistrict Litigation.
October 21, 2005.
*1360 Before WM. TERRELL HODGES, Chairman, JOHN F. KEENAN, D. LOWELL JENSEN, J. FREDERICK MOTZ, ROBERT L. MILLER, Jr., KATHRYN H. VRATIL and DAVID R. HANSEN, Judges of the Panel.
TRANSFER ORDER
WM. TERRELL HODGES, Chairman.
This litigation currently consists of one action each pending in the District of New Jersey and the Southern District of New York. Plaintiff in the latter action moves the Panel, pursuant to 28 U.S.C. § 1407, for an order centralizing this litigation in the Southern District of New York.[1] Defendants[2] support the motion. No other party has responded.
On the basis of the papers filed and hearing session held, the Panel finds that these actions involve common questions of fact, and that centralization under Section 1407 in the Southern District of New York will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. These actions are putative class actions that share factual questions arising from alleged misrepresentations or omissions concerning the financial condition of Rhodia. Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (including ones with respect to questions of class certification), and conserve the resources of the parties, their counsel and the judiciary.
Given the geographic dispersal of the parties and prospective witnesses, no district stands out as the focal point of this litigation. In concluding that the Southern District of New York is an appropriate forum for this docket, we observe that this district, where an action is already pending, provides an accessible, metropolitan location, the selection of which is not opposed by any responding party.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the action pending in the District of New Jersey is transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable Deborah A. Batts for coordinated or consolidated *1361 pretrial proceedings with the action pending in that district.
NOTES
[1] The Panel has been notified of two additional actions pending in the District of New Jersey. These actions and any other related actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001). Also, two other actions that were originally included in the Section 1407 motion have been dismissed. Panel consideration of those actions is thus moot.
[2] Rhodia, S.A. (Rhodia); Gilles Auffret; Pierre Prot; Jean-Pierre Tirouflet; Jean-Pierre Clamadieu; Rhodia, Inc.; Benefits Committee Rhodia Inc.; The Investment Committee of Rhodia's Board of Directors; Fidelity Management Trust Company; Diana Audette; John Donahue; Kristie W. Evans; Guy McCormick; Myron Galuskin; Blaise Halluitte; and Cheryl Staton. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432360/ | 398 F. Supp. 2d 1 (2005)
GEM COUNTY MOSQUITO ABATEMENT DISTRICT and Gem County, Plaintiffs,
v.
ENVIRONMENTAL PROTECTION AGENCY, Michael O. Leavitt, Peter Dill, St. John's Organic Farm, and Does 1-50, Defendants.
No. CIV.A. 03-2179 RMC.
United States District Court, District of Columbia.
January 4, 2005.
*2 *3 Robin W. Grover, Law Office of Robin W. Grover, Washington, DC, Mark L. Pollot, Boise, ID, for Plaintiffs.
Ammie I. Roseman-Orr, U.S. Department of Justice, Benjamin S. Sharp, Perkins Coie, LLP, Washington, DC, Charles Marshall Tebbutt, Amy R. Atwood, Eugene, OR, for Defendants.
MEMORANDUM OPINION
COLLYER, District Judge.
The Gem County Mosquito Abatement District ("GCMAD") and Gem County, Idaho, sue the Environmental Protection Agency ("EPA"), its Administrator, Michael O. Leavitt, in his official capacity (collectively, the "Federal Defendants"), and two Idaho private parties, Peter Dill and St. John's Organic Farm (collectively, the "Private Defendants"). The underlying dispute concerns GCMAD's use of pesticides to control mosquitos and mosquito larvae throughout the 2,000 square miles of Gem County that the Private Defendants have alleged is contrary to their interests in raising crops without pesticides. The Private Defendants alleged that the use of such pesticides requires a permit under the Clean Water Act ("CWA") and threatened to sue.[1] Although GCMAD believed that its activities were fully regulated by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., and that no CWA permit was necessary, it applied for such a permit to avoid litigation. EPA has not issued a permit because the Federal Defendants agree that no CWA permit is required under these circumstances. Meanwhile, the Private Defendants made good on their threat and sued the Plaintiffs in a separate action in the United States District Court for the District of Idaho.
In the instant case, GCMAD and Gem County seek a declaration that GCMAD is not required to obtain a CWA permit, as well as an injunction barring EPA or the *4 Private Defendants from asserting that it does. In the alternative, the Plaintiffs seek an order directing the Federal Defendants to process GCMAD's application for a permit. All Defendants have filed motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim on which relief may be granted. Private Defendants also move in the alternative for transfer to Idaho federal district court. Plaintiffs oppose these motions and are joined by the Washington Potato Growers Association, et al., as amici curiae.[2] Having considered the parties' arguments and the entire record, the Court will grant the motions to dismiss.
BACKGROUND
Gem County is a political subdivision of the State of Idaho and contains approximately 2,000 square miles, much of it farmland. Amend. Compl. ¶ 7. Gem County is in a rural agricultural area of Idaho. In the 2000 census, Gem County's population was 15,181, id., or approximately 27 people per square mile. Id. ¶ 16.
Because of its terrain features and hydrology, much of the land in Gem County is suitable for mosquito habitat. Id. ¶ 17. In the absence of abatement activities, Gem County experiences an extremely high mosquito population. Id. ¶¶ 16, 17.
Established in 1960, GCMAD is a legal entity organized under the laws of the State of Idaho to undertake mosquito abatement activities against adult and larval mosquitoes. Id. ¶ 6. It uses chemical larvicide and pesticides that are subject to extensive regulation under FIFRA. Id. ¶ 6(a). These chemicals are evaluated and registered by EPA under FIFRA and their use is highly regulated. Id. ¶¶ 15, 23, 24.
Around August of 1999, Mr. Dill sent a letter to GCMAD demanding that it cease allowing its pesticides to enter his property. Id. ¶ 24.
He complained about the noise of the airplane, perceived threats to him and his family from a potential plane crash, and a perceived threat to the certification of [St. John's Organic Farm] as an organic operation, although no activity of GCMAD to the date of this Complaint has affected any organic certification. He also demanded that GCMAD observe flight levels set by him, much of which could not be done for safety reasons, and he opposed fogging in the vicinity of his property in addition to aerial application.
Id. GCMAD's attempts to accommodate Mr. Dill's concerns engendered complaints from other County residents that mosquito abatement was suffering. Id. ¶ 25. Threatened by a lawsuit from unhappy residents, GCMAD decided to continue its activities as originally planned. Id.
On or about June 16, 2003, GCMAD received a "60-day notice letter" from the Private Defendants threatening a citizen's suit under the CWA and promising to seek fines and penalties if GCMAD did not cease its activities until it obtained an NPDES permit. Although GCMAD firmly believes that its activities are regulated solely by FIFRA and that no NPDES permit is required, it submitted an application for a permit to EPA that was received by EPA on or about July 10, 2003. As luck would have it, on the very next day, EPA's Assistant Administrators for Water and for Prevention, Pesticides, and Toxic *5 Substances, issued an "Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA" ("Interim Guidance"). See Amend. Compl., Exh. A. This interim guidance concluded that "the application of a pesticide to waters of the United States consistent with all relevant requirements of FIFRA does not constitute the discharge of a pollutant that requires an NPDES permit under the Clean Water Act" in at least two circumstances. Id. The two circumstances include application of pesticides directly to waters in the United States to control pests, such as mosquito larvae, and the application of pesticides to control pests that are present over waters of the United States, such as adult mosquitos. Id. According to the Interim Guidance, it reflected thirty years of consistent conduct by EPA. Id. After the Interim Guidance was issued, EPA sought public comments and is now considering those comments.
Because the Interim Guidance advises EPA Regional Offices that no NPDES permit need be issued when pesticides are applied in a manner consistent with FIFRA and its regulations, EPA has not issued an NPDES permit to GCMAD. Amend. Compl. ¶ 28(b). Indeed, an email from the EPA indicated that GCMAD would not receive a permit. See Amend. Compl., Exh. B ("HQ sent out their interim guidance for pesticides of certain situations .... I don't know what it will mean for you in your situation [the threatened lawsuit] but it does mean that EPA is not going to issue a permit for pesticide applications....").
The Plaintiffs filed this suit in an attempt to obtain a declaration that GCMAD does not need an NPDES permit and to avoid litigation with the Private Defendants. Four months after the complaint was filed in this case, the Private Defendants instituted litigation in Idaho, claiming that GCMAD must have an NPDES permit to use pesticides in mosquito abatement activities. That action has been stayed pending resolution of the motions to dismiss brought in this Court. See St. John's Organic Farm v. Gem County Mosquito Abatement Dist., No. 04-87 (D. Idaho filed Sept. 23, 2004).
ANALYSIS
The Plaintiffs claim that a series of actions by both the public and private defendants placed them in "an untenable position, the proverbial `rock and a hard place.'" Opp. at 2. As explained in the Amended Complaint:
[D]efendants Peter Dill and St. John's Farm assert than an NPDES permit is required for application of FIFRA regulated pesticides. They demand that plaintiffs cease any application of pesticides, even in accordance with FIFRA regulations and EPA approved instructions, until it obtains such a permit on pain of suffering protracted and expensive litigation and the possible imposition of significant fines and penalties. The EPA, on the other hand, de facto and/or de jure denied plaintiff's permit application.
. . . . .
The only other alternative left to plaintiffs under the private defendants' continuing demands is to abdicate plaintiffs' statutory responsibility which will subject them to litigation and other legal sanctions [by other citizens of the County]....
Amend. Compl. ¶¶ 31, 32. The prayer for relief seeks a judgment that no NPDES permits are required for the application of FIFRA-regulated pesticides, an injunction prohibiting all defendants from asserting otherwise, and, in the alternative, if the Court determines that an NPDES permit *6 is required, an order directing EPA to process GCMAD's application for a permit.
The Plaintiffs' unenviable position notwithstanding, the Court agrees that the Plaintiffs have not articulated a "case" or "controversy" against the Federal Defendants and that no statute gives this Court subject-matter jurisdiction over claims against the Federal Defendants. Furthermore, the Court finds that the case against the Private Defendants should be dismissed for improper venue.
MOTION TO DISMISS BY FEDERAL DEFENDANTS
Federal courts are courts of limited jurisdiction possessing only that power authorized by Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). Because "subject matter jurisdiction is an `Art. III as well as a statutory requirement... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982)).
On a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C.2002). See Kokkonen, 511 U.S. at 377, 114 S. Ct. 1673 (a cause is presumed to lie outside the court's limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction). Nevertheless, the complaint must be construed liberally and a plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). See also Macharia v. United States, 334 F.3d 61, 64 (D.C.Cir.2003) (because subject-matter jurisdiction focuses on the court's power to hear the claim, the court must closely scrutinize a plaintiff's factual allegations before dismissal).
1. Case or Controversy
The threshold inquiry is whether the Amended Complaint alleges a "case" or "controversy" as required by both Article III of the Constitution and the Declaratory Judgment Act. O'Shea v. Littleton, 414 U.S. 488, 493, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) ("[T]hose who seek to invoke the power of federal courts must allege an actual case or controversy.").[3]
Before undertaking to decide any dispute brought before it, a federal court must first assure itself that the dispute presented by the parties represents a justiciable "case" or "controversy"; that is, that the plaintiff suffers an actual injury fairly traceable to some challenged action of the defendant and likely to be redressed by the judicial relief requested, and that the factual claims underlying the plaintiff's challenge are concrete enough and the legal issues submitted for decision sharply focused enough to ensure that a genuine clash between the parties exists.
Navegar, Inc. v. United States, 103 F.3d 994, 997 (D.C.Cir.1997). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, *7 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (standing requires a concrete and particularized invasion of a legally protected interest that is actual or imminent, not conjectural or hypothetical, that is fairly traceable to the challenged action of the defendant, and that is redressible by judicial action); Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990) (to invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision). An "actual controversy" under the Declaratory Judgment Act shares the same characteristics: "the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941). See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S. Ct. 461, 81 L. Ed. 617 (1937) (same standard under Declaratory Judgment Act).[4] These threshold determinations required by Article III ensure that "the federal courts act only when the disputes brought before them involve sharply-defined issues pressed by truly adversary parties with a genuine stake in the outcome." Navegar, 103 F.3d at 998 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)).
The Federal Defendants argue that there is no actual controversy because there is no adverse legal interest between EPA and the Plaintiffs. Specifically, they assert that the Plaintiffs and the Federal Defendants agree that no CWA permit is required for the application of FIFRA-regulated pesticides, when done in a manner consistent with FIFRA and its regulations and in the two circumstances identified by EPA. Accordingly, the Federal Defendants argue that the Plaintiffs' action seeks an "impermissible and premature advisory opinion that the EPA has correctly interpreted two federal environmental statutes." Federal Defendants Memo. at 8.
In response, the Plaintiffs argue that the "case" or "controversy" need not be "based solely on whether there is a sufficient adversity between the plaintiffs and the federal defendants... [because of] the completely adversarial opinion of the private defendants." Opp. at 9-10. Further, they assert that "there are differences between the plaintiffs' and federal defendants' positions on central issues and there are certainly differences of opinion between plaintiffs and the private defendants." Id. at 13.
The Plaintiffs muddy the analytical waters, conflating the claims against the Federal Defendants with those against the Private Defendants.[5] For the federal courts to have jurisdiction to hear a case, a plaintiff must have a live case or controversy *8 with each defendant.[6] While there is evidently a live dispute between the Private Defendants and the Plaintiffs being litigated under the CWA citizen-suit provisions in Idaho and while the Private Defendants clearly disagree with the position of EPA (and the Plaintiffs) on the necessity for an NPDES permit on these facts, there is no real dispute between the Plaintiffs and EPA arising from its interpretations of the two environmental statutes.[7] As there is no injury resulting from a "putatively illegal action," Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973), by the Federal Defendants, and as there is no "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment," Maryland Casualty Co., 312 U.S. at 273, 61 S. Ct. 510, standing appears to be absent.[8]See Hydro Investors, Inc. v. FERC, 351 F.3d 1192, 1195 (D.C.Cir.2003) (only aggrieved parties may seek judicial review of agency decisions and, to establish Article III standing, the plaintiff must show that the agency's action has caused it some concrete injury).
The Plaintiffs urge this Court to recognize that the threat of litigation under the CWA creates a case or controversy with the Federal Defendants. The D.C. Circuit has recognized that "[a] credible threat of imminent prosecution can injure [a] threatened party by putting her between a rock and a hard place absent the availability of preenforcement review, she must either forego possibly lawful activity because of her well-founded fear of prosecution, or willfully violate the statute ...." Navegar, 103 F.3d at 998. Such a threat must be "credible and immediate, and not merely abstract or speculative." Id. While the threat of litigation is very real, and indeed has come to fruition in an action brought by the Private Defendants, as plaintiffs, in federal district court in Idaho, that lawsuit does not involve the Federal Defendants. Despite the Plaintiff's claim that "but for the [Federal Defendants'] refusal of a permit, plaintiffs would not be threatened with the harm facing them", Opp. at 12 (emphasis added), the mere fact that EPA issues or denies permits under the CWA does not, by itself, create an adversarial relationship, nor does it create a case or controversy between it and the Plaintiffs.[9] To the extent the Plaintiffs rely on this "but for" reasoning to establish standing, their efforts are unavailing.
*9 2. Denial of Permit Application and Section 1369 of the Clean Water Act
In addition to their more generalized arguments regarding Article III standing, GCMAD and Gem County propose that EPA's denial of GCMAD's permit application creates a case or controversy and provides sufficient grounds for subject-matter jurisdiction. Specifically, the Plaintiffs propose that EPA has responded to GCMAD's request for a permit, finding that it would not issue such permits for pesticide applications. They propose that this was "final action" by EPA that is reviewable by this Court. Opp. at 19 (the refusal to issue a permit is "on its face a final action").
In passing the CWA, Congress created a comprehensive regulatory scheme to control the discharge of waste and pollutants. The Act makes unlawful any pollutant discharges into navigable waters, except as authorized by other provisions of the CWA including sections 1311 and 1342. 33 U.S.C. § 1311(a), 1342. EPA enforces the CWA through the National Pollutant Discharge Elimination System ("NPDES"). Pennsylvania Mun. Auth. Ass'n v. Horinko, 292 F. Supp. 2d 95, 97 (D.D.C.2003). Under this system, EPA may issue permits for the discharge of otherwise prohibited pollutants. 33 U.S.C. § 1342(a)(1).
GCMAD applied for a permit under the NPDES. In response, EPA sent an email clarifying that EPA would not be issuing permits for pesticide applications because it believes that the application of pesticides consistent with FIFRA does not constitute the discharge of a pollutant requiring an NPDES permit under the CWA. There is some question regarding whether this email constitutes a final action that is made reviewable by the Administrative Procedure Act, 5 U.S.C. § 704 ("APA"). Whether the email is "final action," as proposed by Plaintiffs, cannot be decided by this Court.
Under the CWA's judicial review provision, parties affected by EPA actions, including an action "issuing or denying any permit under section 1342 of this title", may appeal to the Circuit Courts of Appeals for the "Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person." 33 U.S.C. § 1369(b)(1). This Court need not decide whether all the jurisdictional requirements of Section 1369 have been met. It is sufficient to find that, in any event, the Plaintiffs would be required to dispute the actions of the Federal Defendants, whether final or otherwise, in the Court of Appeals for the Ninth Circuit, not here. See, e.g., Horinko, 292 F.Supp.2d at 107 ("Section 1369(b)(1) confers exclusive jurisdiction upon the Circuit Court of Appeals").
The Plaintiffs attempt to avoid this conclusion by artfully stating that they "are not asking this court or any other to review the issuance or denial of the applied for permit.... The issue here is not whether the Administrator properly denied the permit." Opp. at 25 n. 11. This position is consistent with the Amended Complaint, which does not seek relief from this alleged denial. Indeed, EPA's reason for failing to act on the permit application is that, like the Plaintiffs, it is of the opinion that no CWA permit is required for pesticide applications that are consistent with FIFRA and its regulations. But, by so arguing, the Plaintiffs relinquish any claim to a case or controversy with the Federal Defendants grounded in the permit application. If there is any legitimate ground for alleging a case or controversy involving the permit application, it involves a dispute over the issuance or denial of a permit. Such issuance or denial is, by *10 statute, only reviewable in the Circuit Courts of Appeals for the judicial district in which such person resides or transacts business which is directly affected by such action. 33 U.S.C. § 1369(b)(1). If, however, there is no issue regarding "whether the Administrator properly denied [a] permit", as the Plaintiffs argue, then they have not alleged a case or controversy sufficient for standing. They cannot have it both ways by elevating the permit application to a case or controversy in one breath, and denying it in another to escape the jurisdictional and venue mandates of the CWA.[10]
3. Interim Guidance and Section 704 of the Administrative Procedure Act
In addition to their argument that jurisdiction may be based upon the refusal to issue a permit, the Plaintiffs propose that jurisdiction is proper over the Federal Defendants based upon the Interim Guidance issued by EPA on July 11, 2003. This Interim Guidance advised that the application of a pesticide to waters of the United States consistent with all relevant requirements of FIFRA does not constitute the discharge of a pollutant that requires a NPDES permit under the Clean Water Act in at least two circumstances that are immediately applicable to the Plaintiffs.
The Amended Complaint asserts that the Interim Guidance is a "rule" within the meaning of the APA. Amend. Compl. ¶ 28. Plaintiffs argue that "the [Interim Guidance] is a final action which is a final decision on an interim rule." Opp. at 19.[11] Despite their word-smithing, the Interim Guidance is not yet challengeable.
Unlike the alleged denial of the permit application, the Interim Guidance does not, itself, fall squarely within the matters deemed reviewable under Section 1369. See 33 U.S.C. § 1369.[12] Still, under certain circumstances, judicial review is possible under Section 704 of the APA, which states:
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable *11 is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
5 U.S.C. § 704.
Judicial review may be obtained under the APA if the agency action is considered "final." Atl. States Legal Found. v. EPA, 325 F.3d 281, 284 (D.C.Cir.2003). To be final, agency action must be definitive, with a direct and immediate effect on the day-to-day business of the challenging party. Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm'n, 324 F.3d 726, 731 (D.C.Cir.2003). It must mark the consummation of the agency's decision-making process, not be merely interlocutory in nature, and the action must be one by which rights or obligations have been determined. Bennett v. Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997).
EPA has made clear that the Interim Guidance is just that: interim guidance upon which public comment would be solicited and considered before issuing a final interpretation and guidance. In its interim form, this guidance is interlocutory and does not finally determine legal rights or obligations. Rather, EPA has provided immediate guidance to regional administrators after certain cases from the Ninth Circuit cast uncertainty upon NPDES permitting requirements, but it remains subject to notice and comment prior to consummation of the agency decision-making process.
The "finality" element is interpreted in a "pragmatic" way. FTC v. Standard Oil Co. of California, 449 U.S. 232, 239, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980). To regard EPA's Interim Guidance as final where it does not impose a legal obligation to obtain permits would improperly and prematurely interfere with the process by which an agency reaches a final position on matters committed to its discretion. Because a party may only petition for judicial review of final agency action, this question is not reviewable at this time. Papago Tribal Util. Auth. v. FERC, 628 F.2d 235, 238-39 (D.C.Cir.1980).
The Plaintiffs argue that "the Statement and Interim Guidance is a final action which is a final decision on an interim rule. It may be subject to revision in the future, but is nonetheless effective now and will continue to be for the indefinite future." Opp. at 19. They claim that "to argue, therefore, that no final agency action exists is sophistry since it, though denied by defendants, is in fact `the culmination of agency decisionmaking.'" Opp. at 19-20 (citing Private Defendants Memo. at 7).
Even accepting the Plaintiffs' argument that the Interim Guidance constitutes final agency action reviewable under the APA, the Amended Complaint fails to challenge the Interim Guidance in its claims and its prayer for relief. Despite arguments in brief about alleged differences of opinion and finality of the "rule," the Amended Complaint makes no legal claim concerning the Interim Guidance. It does not allege that any "differences of opinion" are material to GCMAD's operations or that GCMAD's use of pesticides does not fit into the two circumstances identified in the Interim Guidelines. For these reasons, the Amended Complaint does not set forth a "case" or "controversy" with respect to *12 the Interim Guidance.[13] Because federal courts are courts of limited jurisdiction under Article III, a district court does not have jurisdiction over truly "final" agency action if there is no case or controversy. See Hydro Investors, 351 F.3d at 1197 ("Administrative agencies need not adjudicate only Article III cases and controversies, but federal courts must.").
4. Federal Question and the Declaratory Judgment Act
The Plaintiffs attempt to rescue their case by resting subject-matter jurisdiction on the Federal Question statute, 28 U.S.C. § 1331, and the Declaratory Judgment Act, 28 U.S.C. § 2201. Opp. at 17, 18. Such reliance is misplaced and merits little attention.
Section 1331 confers jurisdiction in the federal courts for cases that "aris[e] under" the laws of the United States. 28 U.S.C. § 1331. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983) (Article III "arising under" jurisdiction is broader than federal question jurisdiction under Section 1331). Section 1331 does not independently or separately confer jurisdiction. Rather, the Plaintiffs must identify a statute or law of the United States on which their claims are based. Similarly, it is well-settled that the Declaratory Judgment Act does not independently create jurisdiction. Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 280 (9th Cir.1988). When a plaintiff has a legal claim under federal law, the Declaratory Judgment Act allows him to obtain a federal court declaration of his rights under that federal statute. See C & E Serv., Inc. v. District of Columbia Water & Sewer Auth., 310 F.3d 197, 201 (D.C.Cir.2002) (availability of declaratory relief presupposes the existence of a judicially remediable right). But, absent that independent legal right, the Declaratory Judgment Act does not confer jurisdiction.
5. Dismissal of Federal Defendants
For the reasons discussed above, the Plaintiffs have failed to allege a case or controversy or advance justiciable claims against the Federal Defendants that arise under the CWA or FIFRA. Further, challenges to the propriety of the alleged denial of an NPDES permit or the Interim Guidance under either the CWA or the APA cannot now be brought in this Court. Accordingly, the Plaintiffs' Amended Complaint fails to set forth a cause of action against EPA under federal law. Neither the Federal Question statute nor the Declaratory Judgment Act changes this result and the case against the Federal Defendants must be dismissed.
MOTION TO DISMISS BY PRIVATE DEFENDANTS
Rule 12(b)(3) of the Federal Rules of Civil Procedure allows a case to be dismissed for improper venue. Where jurisdiction is premised on a federal question, 28 U.S.C. § 1391(b) controls venue and establishes three places where venue is proper:
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated or (3) a judicial district in which any defendant may be found, if there is no *13 district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). If the district in which the action is brought does not meet the requirements of Section 1391(b), that district court may dismiss the case or, if it is in the interest of justice, transfer the case to a proper district. 28 U.S.C. § 1406(a). See Davis v. Am. Soc. of Civil Engineers, 290 F. Supp. 2d 116, 120 (D.D.C.2003).
The Plaintiffs acknowledge that the provisions of Section 1391 apply to the venue determination. Opp. at 28. They argue that "venue over all such defendants is proper so long as at least one properly selected official defendant resides in the District where the action is filed ...." Id. As the Federal Defendants have been dismissed, unless venue is otherwise appropriate under Section 1391, dismissal or transfer is appropriate.
Neither of the Private Defendants resides in this district. Further, as to the claims between the Plaintiffs and the Private Defendants, any "part of the events or omissions giving rise to the claim" that may have occurred in this district are insubstantial at best. Indeed, the fact that "the laws enacted, the policy determinations arrived at, and the fundamental actions taken to effectuate the statutes and policy determinations occurred in this District" cannot alone be grounds for venue here. Opp. at 29-30. Absent the Federal Defendants, this is an issue of local concern affecting the interests of Idaho and its residents. Venue is more appropriately laid in the United States District Court for the District of Idaho.
Although the interests of justice often require transfer rather than dismissal, Davis, 290 F.Supp.2d at 120, this determination rests within the sound discretion of the court. James v. Booz-Allen, Hamilton, Inc., 227 F. Supp. 2d 16, 25 (D.D.C.2002). In this case, there is a separate action involving the Plaintiffs and Private Defendants currently pending in Idaho District Court. That action has been stayed pending the disposition of the motions brought by the defendants here. The Idaho litigation involves essentially the same facts and legal issues as remain between the Private Defendants and the Plaintiffs. Accordingly, to transfer would merely create duplicative litigation in the same district court and is unnecessary to preserve the interests of justice. Accordingly, the complaint against the Private Defendants will be dismissed for improper venue.
CONCLUSION
For the reasons stated in this Memorandum Opinion, the Federal Defendants' Motion to Dismiss for lack of subject-matter jurisdiction is GRANTED. The Private Defendants' Motion to Dismiss for improper venue is GRANTED. The case is DISMISSED.
A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
NOTES
[1] The Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, is commonly referred to as the Clean Water Act. Section 1342 of the CWA provides for application to EPA for a National Pollution Discharge Elimination System ("NPDES") permit, which the Private Defendants assert is required for GCMAD's pesticide applications.
[2] The Memorandum and Brief was filed by amici Washington State Potato Commission, Central Oregon Potato Growers Association, Potato Growers of Washington, Willamette Valley Potato Growers, Columbia-Snake River Irrigators Association, Potato Growers of Idaho, and Washington State Horticultural Association.
[3] Article III of the United States Constitution limits the role of the federal courts to "cases" and "controversies." U.S. CONST., art. III, § 2. A complaint should be dismissed if: 1) there is no case or controversy; 2) the claim does not "arise under" federal law or the Constitution; or 3) the cause of action is not described in any other jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).
[4] The Declaratory Judgment Act affords relief only in "a case of actual controversy within the court's jurisdiction." 28 U.S.C. § 2201.
[5] The Plaintiffs do note that, "[n]o case cited by any defendant suggests that declaratory judgment cannot be had, or that a plaintiff cannot bring in all interested parties whose actions have affected or threaten to affect a plaintiff once standing has been satisfied. Once a plaintiff has standing, he has standing." Opp. at 13 (emphasis in original). See also Opp. at 16 n. 9 ("The adversity required in declaratory judgment actions is supplied in part by the federal defendants and by the private defendants."). But the burden lies on the Plaintiffs to show that jurisdiction is proper as to the claims against each defendant and such superficial treatment will not survive a motion to dismiss.
[6] It is not sufficient that a plaintiff has a live dispute with Defendant A and that Defendant A might have a similar dispute with Defendant B; the plaintiff must have a live dispute with Defendant B as well. The triangle drawn by the Amended Complaint fails in this basic requirement.
[7] It is, of course, understandable that the Plaintiffs would prefer to have the Federal Defendants in this lawsuit to explain their own Interim Guidance and to defend their interpretation of the CWA and FIFRA. That common-sense approach does not suffice to establish a case or controversy, nor does it create a case arising under federal law.
[8] The Plaintiffs argue that the issuance of a 60-day notice letter is sufficient to make declaratory judgment available, citing Shields v. Norton, 289 F.3d 832, 836 (5th Cir.2002). Opp. 12-13. The 60-day notice is demonstrative of the dispute between the Plaintiffs and the Private Defendants. It does not create or establish a dispute between the Plaintiffs and the Federal Defendants.
[9] The cases cited by the Plaintiffs are not to the contrary. Unlike this case, Culinary Workers v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.1999) involved the threat of suit by the government agency itself. Further, Shields v. Norton, 289 F.3d 832, 836 (5th Cir.2002) found that the "suit does not present justiciable issues and the district court was without jurisdiction to decide the case."
[10] The Private Defendants argue that the Plaintiffs' filing of a declaratory judgment action in this Court is a "clear attempt to avoid the law of the Ninth Circuit" that might apply should the Plaintiffs have to proceed under 33 U.S.C. § 1369(b)(1). Private Defendants Memo. at 10.
[11] To the extent that the Plaintiffs urge that the Interim Guidance is part and parcel of the denial of a permit, Section 1369 of the CWA controls and this Court does not have jurisdiction.
[12] 33 U.S.C. § 1369(b)(1) states:
Review of the Administrator's action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C), (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316 or 1345 of this title, (F) in issuing or denying any permit under section 1342, and (G) in promulgating any individual control strategy under section 1314(l), may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.
[13] In the initial complaint, the Plaintiffs alleged that they agreed with EPA's interpretations of its statutes. While this statement has been dropped from the Amended Complaint, it remains clear that the Plaintiffs and EPA are not truly adverse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432321/ | 456 S.W.2d 271 (1970)
C. A. PARMER, Appellant,
v.
Hal ANDERSON, Appellee.
No. 17447.
Court of Civil Appeals of Texas, Dallas.
May 29, 1970.
*272 Arthur Skibell, Spinuzzi & Girand, Dallas, for appellant.
Lee Shipp, Shipp & Crooks, Dallas, for appellee.
CLAUDE WILLIAMS, Justice.
Hal Anderson brought this action against C. A. Parmer seeking to recover unpaid installments of a rental agreement. Parmer answered, denying that he had failed to pay the monthly rental due for the months in question. Anderson filed his motion for summary judgment supported by affidavit of his attorney in which it was alleged that the monthly rental payments due under the contract subsequent to December 15, 1968 had not been paid. Parmer answered the motion and attached his affidavit in which he said that he had made the monthly payments of rental from May 15, 1968 to and including April 15, 1969.
The trial court heard the motion for summary judgment and entered an order granting same. As a part of the order the court stated that he was "of the opinion that Defendant's Answer does not comply with Rule 185 of the Texas Rules of Civil Procedure * * *."
Judgment was entered in favor of Anderson and against Parmer for the sum of $600.
Appellant vigorously attacks this judgment in several points of error. Primarily, he contends that the trial court was in error in treating appellee's cause of action as one properly brought as a sworn account pursuant to Rule 185, Vernon's Texas Rules of Civil Procedure. Appellant argues that the subject matter of the suit was not such as to make it a subject for a sworn account under this rule so that he was not required to respond with the particular sworn answer required by the rule.
We sustain appellant's contention. Rule 185, T.R.C.P., prescribes the particular types of action which may be brought under the designation of "sworn account". These are (1) upon an open account or (2) other claim for goods, wares and merchandise, (3) including any claim for a liquidated money demand based upon written contract or founded on business dealing between the parties, (4) or for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept. A careful examination of the original petition of appellee clearly reveals that the cause of action asserted does not fall within any of these categories enumerated in this rule. Obviously the suit is to recover money allegedly due based upon a rental agreement between the parties. We think that the affidavit of appellee's attorney, attached to the motion for summary judgment, clearly demonstrates that the suit arose out of a special contract between the parties. This identical situation was discussed by us in Robinson v. Faulkner, 422 S.W.2d 209 (Tex.Civ.App., Dallas 1967), in which we held that the suit was based on a contract rather than upon a sworn *273 account which rendered it unnecessary for the adverse party to verify his answer pursuant to Rule 185, T.R.C.P. See also Ball v. Cooper-Stanley Co., Inc., 413 S.W.2d 467 (Tex.Civ.App., Dallas 1967).
Even if it could be said that the action was properly maintainable under Rule 185, T.R.C.P., we think appellant's denial, under oath, that the rental payments sued upon were due and payable, is in substantial compliance with the rule.
Moreover, the suit cannot be said to have been instituted pursuant to Rule 185, T.R.C.P., for the reason that the petition filed by appellee is not supported by an affidavit of appellee, or his attorney, taken before some officer authorized to administer oaths. Examination of plaintiff's original petition reveals that it was signed by the attorney for plaintiff; that it contains an affidavit form signed by the attorney but it is not signed or subscribed by a notary public or any other officer authorized to administer oaths. The petition was therefore not filed under oath as prescribed by the rule.
Appellant contends that his affidavit in opposition to appellee's motion for summary judgment clearly presents issues of fact which must be submitted to a trier of fact. We agree. The whole question presented by the pleadings is whether appellant paid certain monthly rental installments. Appellee, through the affidavit of his attorney, says that such installments were not paid. Appellant, in his affidavit, says that such installments were paid. Thus a clear-cut issue of fact is presented. It is elementary that when summary judgment evidence discloses the existence of controverted issues of fact the motion must be overruled.
The judgment of the trial court is reversed and remanded for further proceedings.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432338/ | 398 F. Supp. 2d 507 (2005)
Judith BURKENSTOCK
v.
NORTHWEST AIRLINES, INC.
No. CIV.A.04-3348.
United States District Court, E.D. Louisiana.
October 31, 2005.
*508 *509 William Roy Mustian, III, Stanga & Mustian, Metairie, LA, for Judith Burkenstock.
Rene' Elizabeth Thorne, Howard Shapiro, Susanne A. Veters, Proskauer Rose, LLP, New Orleans, LA, for Northwest Airlines, Inc.
ORDER AND REASONS
VANCE, District Judge.
This is an action for review of the denial of long-term disability benefits by the administrator of an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1054, et seq. Before the Court is defendant's motion for summary judgment. For the following reasons, the Court DENIES defendant's motion for summary judgment.
I. BACKGROUND
Judith Burkenstock is a former employee of Northwest Airlines. Burkenstock began working for Northwest as a customer service agent on May 4, 1974. The last day she worked was July 26, 2002.
On November 5, 2001, Burkenstock injured her lower back while attempting, along with a co-worker, to carry a passenger in a chair off of an airplane. She received treatment in the form of physical therapy, medication, a steroid injection, and eventually had surgery for this injury. On April 19, 2003, Burkenstock applied for disability retirement benefits under the Northwest Airlines Pension Plan for Salaried Employees. Northwest Airlines is the administrator of the plan. Northwest denied Burkenstock's claim on the basis that Burkenstock was not totally and permanently disabled in accordance with the terms of the plan.
Burkenstock sued Northwest for disability retirement benefits in this Court. Currently before the court is Northwest's motion for summary judgment and request for an award of attorneys' fees.
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the *510 evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S. Ct. 2548; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S. Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See Id. at 325, 106 S. Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
B. ERISA Review
Under ERISA, a claims administrator must make two findings to determine whether an employee is entitled to benefits under a plan. Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir.1998)(citing Pierre v. Conn. Gen. Life Ins., 932 F.2d 1552, 1557 (5th Cir.1991)). The administrator must first determine the facts underlying the claim for benefits. Id. (citing Pierre, 932 F.2d at 1562). The administrator must then "determine whether those facts constitute a claim to be honored under the terms of the plan." Id. (emphasis in original). If the administrator denies benefits to the participant, section 1132 of ERISA provides that the employee may bring suit in federal district court "to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B).
In cases arising under ERISA, whether the question before the Court is one of factfinding or policy interpretation is not always clear. Another court in this district has described the difference thusly: "A factual determination usually consists of an administrator's finding that a claimant's condition meets a definition in the policy.... [A] challenge to plan interpretation usually consists of the plan administrator's interpretation of a plan term." Chapman v. The Prudential Life Ins. Co. of America, 267 F. Supp. 2d 569, 576 (E.D.La.2003).
In their briefs to the Court, both parties focused on the question of whether Northwest abused its discretion in its interpretation of the plan based on the language it used in certain questions posed to Dr. Bradley Bartholomew. Def.'s Mot. for Summ. J. 8-14; P.'s Mot. in Opp. to Mot. for Summ. J. 3-9; Def. Rep. in Supp. of its Mot. for Summ. J. 2-4.
Consequently, the Court will review Northwest's interpretation of the plan term, the only disputed issue before the Court.
(a) Review: Plan Interpretation
In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court delineated the appropriate standard of review of an administrator's interpretation of the terms of the plan and whether the claim falls within those terms. 489 U.S. 101, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). The Supreme Court held that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Id. at 115, 109 S. Ct. 948; see also Schadler, 147 F.3d at 394. When a plan vests discretionary authority in the administrator, "courts review the decision under the more deferential abuse of discretion standard." Schadler, 147 F.3d at 394. The Fifth Circuit has noted that although it "has no desire to wade into the largely semantic" conflict that surrounds an exact definition *511 of the abuse of discretion standard, "if a decision is supported by substantial evidence and is not erroneous as a matter of law, it is not arbitrary and capricious" or an abuse of discretion. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 n. 12 (5th Cir.1992).
Northwestern is a claims administrator with discretionary authority to interpret the Plan. Def.'s Mot. for Summ. J., Ex. 1 at NWT 042. (expressly stating that "The Employer shall have the sole discretion ... to interpret and construe the Plan Statement"). The Court will accordingly review Northwestern's ultimate determination for abuse of discretion as required by Schadler.
The Court applies a two-step process to review a plan fiduciary's interpretation of its plan.
First, the Court must determine the legally correct interpretation of the plan. If the administrator did not give the plan the legally correct interpretation, the court must then determine whether the administrator's decision was an abuse of discretion. In answering the first question, i.e., whether the administrator's interpretation of the plan was legally correct, a court must consider:
(1) whether the administrator has given the plan a uniform construction,
(2) whether the interpretation is consistent with a fair reading of the plan, and
(3) any unanticipated costs resulting from different interpretations of the plan.
Ellis v. Liberty Life Ins. Co. of Boston, 394 F.3d 262, 269-70 (5th Cir.2004)(quoting Wildbur, 974 F.2d at 637-38).
Because Northwest is both the plan sponsor and the plan administrator, the Court must take this conflict of interest into account in its analysis. Ellis, 394 F.3d at 270. Burkenstock has not presented evidence that this conflict influenced the administrator's determination. Accordingly, the court treats the existence of a conflict as a factor demanding only a modicum less deference to the administrator's determination. Vega v. Nat'l Life Ins. Svcs., Inc., 188 F.3d 287, 301 (5th Cir.1999).
For the following reasons, the Court finds that, Northwest gave the plan an interpretation that was legally incorrect. Further, Northwest abused its discretion in interpreting the term "Disability" in the plan.
(b) Burkenstock's Plan
Burkenstock was enrolled in the Northwest Airlines Pension Plan for Contract Employees with 29 years of "Vesting Service," as of February 18, 2003. Def.'s Mot. for Summ. J., Ex. 2 at NWT 157. Section 3.3.1 of the plan, "Disability Retirement Pension: When Available," provides that any participant in the plan with at least ten years of vesting service who is terminated by reason of disability shall receive a disability retirement pension. Def.'s Mot. for Summ. J., Ex. 1 at NWT 025. Section 1.3.1 of the Plan defines "Disability" as "total and permanent disability which renders the Participant incapable of any employment with the Employer." Id. at 011. Section 1.2.13 of the Plan defines "Employer" as "Northwest Airlines, Inc., a Minnesota corporation, any other corporation that adopts this plan pursuant to Section 9.4, and any successor of any of them which adopts the Plan." Id. at 013. Under the plan, Burkenstock was thus entitled to a disability retirement pension provided her termination was occasioned by total and permanent disability rendering her incapable of any employment with Northwest Airlines.
The plan provides for a "Claim and Review Procedure" in Section 7.3, which includes *512 the right to a review of the initial claim determination. Id. at 042-43.
(c) Burkenstock's Medical History
Ms. Burkenstock injured her lower back on November 5, 2001, when she attempted to carry a passenger off of a plane with assistance. Def.'s Mot. for Summ. J., Ex. 2 at NWT 087. Shortly after the incident, she saw Dr. William Johnson, an orthopedist, for this injury. Id. Dr. Johnson prescribed a course of physical therapy which she followed over the course of several months. Id. at 138. Burkenstock continued to experience pain in her lower back and leg, so she was sent for an MRI scan on March 13, 2002. Id. The MRI showed evidence of degenerative changes of her lumbar spine, degenerative disc disease, a disc bulge, and degenerative change of the apophyseal facet. Id.
Burkenstock continued to receive physical therapy, but her pain did not subside, and in April of 2002 Dr. Johnson ordered an EMG, which showed evidence of mild irritation of her L5-S1 nerve root but no evidence of nerve dysfunction. Id. at 138-39. She continued to take medication and receive physical therapy. Id. During this time, she was able to return to full duty work for only one week and was otherwise confined to light duty. Id. at 087.
After the EMG, Burkenstock saw Dr. Robert Steiner, who prescribed a second course of physical therapy, which eventually was changed to a work conditioning program in September 2002. Id. at 139. Dr. Steiner also prescribed steroid injections. Id. at 087. There is a conflict in the record as to whether these injections provided Burkenstock with any pain relief. Compare id. at 139 with id. at 87. In December of 2002, Burkenstock again saw Dr. Steiner, who determined that she had reached maximum medical improvement and that she should be on permanent light duty status. Id. at 139. He also gave her a 5 percent permanent partial disability rating. Id. Dr. Steiner also noted that Burkenstock had remained active during her period of treatment and had been playing golf throughout the preceding period. Id.
In May 2003, Burkenstock again saw Dr. Steiner for increasing pain; he referred her to physical therapy and treated her with lycorine (sic) for her breakthrough symptoms. Id.
In September of 2003, Burkenstock saw a neurologist, Dr. William Johnston, who recommended that she undergo a lumbar myelogram. Id. The myelogram showed disc herniation. Id. Dr. Johnston performed a left L4-5 diskectomy on April 1, 2004 (after Burkenstock filed for disability benefits), which did not succeed in eliminating her pain and may have worsened it somewhat. Id. at 87.
(d) Burkenstock's Initial Claim
Northwest denied Burkenstock's application for benefits in a letter dated February 6, 2004. Def.'s Mot. for Summ. J., Ex. 2 at NWT 135-36. Northwest based its determination on a File Review performed by Dr. James Gannon. Id. at NWT 138-41. Apparently Dr. Gannon did not examine Burkenstock directly; he relied for his determination on her medical records. Id. at NWT 138. Apart from a summary of her medical history, Dr. Gannon responded to several "Interrogatories" provided to him by Northwest. Northwest's "Interrogatories" contained the following questions:
1. Was Mrs. Burkenstock totally disabled from any and all employment not limited to her current position with Northwest Airlines on February 2004?
*513 2. Was Ms. Burkenstock permanently disabled from any and all employment not limited to her current position with Northwest Airlines on February 2004?
3. On what date was Ms. Burkenstock both totally and permanently disabled from all employment including light or sedentary work without regard to pay level?
4. Is there any type of work that Ms. Burkenstock could do?
5. Is there any treatment currently available that would allow Ms. Burkenstock to return to some kind of employment?
Id. at 140-41. Dr. Gannon stated that he did not believe Burkenstock was ever totally or permanently disabled and that he believed she had always been capable of "light duty" work. He noted that she should avoid jobs that require heavy lifting, bending, or stooping on a regular basis, but that she was capable of light duty work at the time of the examination. Id.
On the basis of Dr. Gannon's report, Northwest "determined that [Burkenstock] did not satisfy the definition of Disability on December 19, 2003, the last day [Burkenstock was] on the Northwest payroll." Id. at 135. The denial letter from Northwest advised Burkenstock of her right to appeal the decision, which would require her to undergo an independent medical examination (IME). Id. at 135-36. The letter stated:
The independent medical examiner will perform a physical examination, review your claim, and make a determination of whether, due to your medical condition, you satisfied the definition of Disability under the terms of the Plan on December 19, 2003. The independent medical examiner's decision will be final and binding on both you and Northwest.
Id. at 136.
(e) Burkenstock's Appeal
Burkenstock chose to avail herself of the appeal process and selected Dr. Bradley Bartholomew from a list of three potential independent medical examiners. Id. at 127. On July 27, 2004, Dr. Bartholomew examined Burkenstock. Id. at 103. His report describes her medical history, details her condition at the time of the examination, and gives his observations of the tests performed by her treating physicians. Id. at 087-88. Dr. Bartholomew then recounts the substance of his discussion with Burkenstock regarding her occupational limitations.
As far as her work status, I do not believe she can return to her previous job, as I believe, with the previous back surgery and underlying symptoms, she should not do any repetitive bending, stooping, crawling, twisting, or picking up more than 25 pounds on a repetitive basis. I think even with sedentary duty, she would have to be able to alternate positions between standing, sitting, and lying down on an hourly basis. She discussed the possibility with me that she may have a job in Minneapolis, but it would require commuting. I do not believe that long trips on airplanes in small seats with decreased ability to get up and move around would be acceptable for her pain-wise.
Id. at 088. Dr. Bartholomew also responded to seven "Specific Interrogatives," the first five of which were similar to the "Interrogatories" posed to Dr. Gannon:
SPECIFIC INTERROGATIVES:
1. Was Ms. Burkenstock totally disabled from any and all employment, not limited to her current position with Northwest Airlines on 12/19/03?
*514 no
2. Was Ms. Burkenstock permanently disabled from any and all employment, not limited to her current position with Northwest Airlines on 12/19/03?
no
3. On what date was Ms. Burkenstock both totally and permanently disabled from all employment (including light or sedentary work without regard to level of pay)? n/a
If Ms. Burkenstock was not both totally and permanently disabled from all employment, please explain your reasons for your opinion.
Please refer to the body of my report.
4. Is there any type of work that Ms. Burkenstock could do?
If yes, please describe.
yes Please refer to the body of my report.
5. Is there any treatment currently available that would allow Ms. Burkenstock to return to some kind of employment? If yes, please describe the type of treatment, and the frequency and duration of care you believe is indicated.
yes Patient may be a candidate for surgery, but it would not change her disability / restrictions.
6. Describe the activities that ms. burkenstock [sic] reports engaging in since the onset of disability
minimal
7. Do you believe the activities described in item 6 above are typically engaged in by a person with this type of disability?
yes
Id. at 088-89 (emphasis, bolding, and formatting in original). On September 30, 2004, Northwest advised Burkenstock that Dr. Bartholomew determined that she was not totally and permanently disabled according to the terms of the Plan. Accordingly, it denied her claim. Id. at 086.
(f) Analysis
1. Was Northwest's interpretation legally correct?
The record contains very little evidence as to what Dr. Bartholomew knew about the plan. Northwest relies on a letter dated October 29, 2004, in which a Northwest employee asserts that "Dr. Bartholomew was provided with the definition of Disability in the Plan." Def.'s Mot. for Summ. J., Ex. 2 at NWT 077. But asserting that Dr. Bartholomew received the correct definition and proving that it is an undisputed material fact are two different things. The only additional evidence in the administrative record is what appears to be an email attachment sent from Eydie Cusack of Northwest to Lauri Jedlicki of America's IME, the company which acted as an "impartial third party" in providing a list of physicians from which Burkenstock could select the individual to perform her IME. Def.'s Mot. for Summ. J., Ex. 2 at NWT 129-33. While this attachment does include the definition of Disability under the plan, as well as questions correctly phrased to correspond with this definition, there is no evidence in the administrative record that Jedlicki sent these materials to Dr. Bartholomew. Indeed, the definition of Disability in the plan does not appear in Dr. Bartholomew's report.
Furthermore, the administrative record contains evidence that Dr. Bartholomew was asked questions that reflect an incorrect understanding of disability under the plan. The plan defined Disability to mean "total and permanent disability which renders the Participant incapable of any employment *515 with the Employer." Def.'s Mot. for Summ. J., Ex. 2 at NWT 011 (emphasis added). Dr. Bartholomew was asked, in part:
1. Was Ms. Burkenstock totally disabled from any and all employment, not limited to her current position with Northwest Airlines on 12/19/03?
2. Was Ms. Burkenstock permanently disabled from any and all employment, not limited to her current position with Northwest Airlines on 12/19/03?
3. On what date was Ms. Burkenstock both totally and permanently disabled from all employment (including light or sedentary work without regard to level of pay)?
If Ms. Burkenstock was not both totally and permanently disabled from all employment, please explain your reasons for your opinion.
Def.'s Mot. for Summ. J., Ex. 2 at NWT 086.
The meaning of the plan is clear: the applicant had to be incapable of any employment with Northwest. The questions posed to Dr. Bartholomew had a very different meaning; they asked, in effect, whether the applicant was incapable of working anywhere. It is plain that the comma in the first two questions broadens the world of employment beyond Northwest Airlines to "any and all employment." The third question does not refer to Northwest at all.
This distinction is important, since other employers, but not Northwest, may have jobs that someone with Burkenstock's disability could perform. There is no evidence in the record indicating that Dr. Bartholomew was aware of the range of jobs available at Northwest or the physical demands they might require. Indeed, it is apparent that Dr. Bartholomew did not construe the inquiry as centered on employment with Northwest because he states in his report that Burkenstock came to "discuss what type of job she could do, if any." Def.'s Mot. for Summ. J., Ex. 2 at NWT 088.
Applying the test for whether a plan administrator has given a legally incorrect interpretation to a plan term, the Court first notes that there is no evidence as to how Northwest interpreted the plan term in other cases. Next, no unanticipated costs could result from Burkenstock's preferred interpretation, since she asks only that the term be interpreted as it is written. The only remaining question is whether Northwest's interpretation is consistent with a fair reading of the plan.
As described above, the interpretation of "Disability" used in Northwest's interrogatories to Dr. Bartholomew cannot be squared with the clear meaning of the term in the plan. Therefore, the court finds that Northwest's interpretation of the term "Disability" was not legally correct.
2. Did Northwest abuse its discretion?
The next question for the court is whether Northwest's interpretation constituted an abuse of discretion. Here, the Court considers three factors: (1) the internal consistency of the plan under Northwest's interpretation; (2) any appropriate regulations; and (3) the factual background of the determination and any inferences of a lack of good faith. Ellis, 394 F.3d at 272, n. 23 (citing Wildbur, 974 F.2d at 638). When, as here, an administrator's interpretation of a plan is in direct conflict with express language in a plan, this action is a very strong indication of arbitrary and capricious behavior. Wildbur, 974 F.2d at 638.
The parties have submitted no argument or evidence on the first two factors *516 in the test for an abuse of discretion. As to the issue of bad faith, there is some evidence of a lack of good faith. The Court refers to Northwest's outright refusal to ask Dr. Bartholomew the correctly worded question immediately upon becoming aware of the error made in the "interrogatives." The record shows that Northwest was not reluctant to return Dr. Bartholomew's report to him when Northwest was not satisfied with it. Def.'s Mot. for Summ. J., Ex. 2 at NWT 090. But when Ms. Burkenstock's attorney pointed out to Northwest that the "interrogatives" did not use the same wording as the plan, Northwest refused to send the correct questions to Dr. Bartholomew when it could have easily done so. Instead, Northwest asserted that the "interrogatives" were "based on" the correct plan definition and "still accurately reflect the requirements of the Plan." Id. at 077.
As noted above, reading Dr. Bartholomew's report suggests that he did not understand his inquiry to be restricted to whether Burkenstock was capable of any work with Northwest. As he understood the question, Burkenstock came to "discuss what type of job she could do, if any." Id. at 088. Nowhere in his report is there any indication that he and Burkenstock discussed the physical demands of jobs at Northwest apart from her previous job, to which he felt she could not return. Id.
Because Northwest's interpretation was made under factual circumstances that the Court finds suggestive of a lack of good faith, the Court cannot find that Northwest is entitled to summary judgment that it properly exercised its discretion in construing the plan. Accordingly, defendant's motion for summary judgment is DENIED.
III. COSTS AND FEES
Northwest requests costs and fees under ERISA. Because this court has denied Northwest's motion for summary judgment, it will not award costs or fees to Northwest.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES defendant's motion for summary judgment and DENIES defendant's request for an award of attorneys' fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432327/ | 456 S.W.2d 60 (1970)
Nathaniel STEVENSON, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 42894.
Court of Criminal Appeals of Texas.
May 13, 1970.
Rehearing Denied July 15, 1970.
*61 Durward D. Moore, Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott, Harry J. Schulz, Jr., and W. T. Westmoreland, Jr., Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is burglary; the punishment, three (3) years.
Appellant challenges the sufficiency of the evidence. The record reflects that the complaining witness testified that a number of items were taken from her apartment, which had been broken into while she was absent. A newsboy testified that he carried a number of items for appellant, some of which matched the description of the stolen property, to an area in close proximity to the apartment where the stolen goods were recovered. Upon talking with this newsboy, police officers went to this location, searched for the stolen property, but found nothing. Noticing several men watching them from an apartment door nearby, the officers approached them, and asked if they could come in. The appellant then gave his permission. The apartment was shown to be in the custody and control of appellant, who at this time was there babysitting for his sister-in-law in whose name the apartment was leased. Upon entering, the officers noticed a bedspread in open view matching the description of the stolen bedspread. A search was then conducted of the apartment and of the men. A ring was found upon appellant's person which was identified by the complaining witness as one of the rings stolen from her apartment. The jury was charged on circumstantial evidence. We find the evidence sufficient to support the jury's findings.
Appellant complains that the court erred in not allowing him to see the notes and records used by a witness to refresh his memory. The witness stated that before the trial he had used notes which were not his but regulation police reports to refresh his memory as to some addresses, and not while he was testifying. The record *62 reflects that appellant only asked to see the notes. When this was denied, appellant did not ask that they be included in the record or be made part of his Bill of Exceptions. This Court has consistently held that to preserve error it is incumbent upon the appellant to present the same for this Court's inspection, Pruitt v. State, 172 Tex. Crim. 187, 355 S.W.2d 528; Leal v. State, Tex.Cr.App., 442 S.W.2d 736.
Appellant contends that the court erred in admitting an in-court identification based on a pre-trial lineup which was conducted without presence of counsel. Appellant at no time made any objection to this testimony as it was introduced, and we have consistently held that for error to be preserved appellant must make a timely objection, Martinez v. State, Tex.Cr.App., 437 S.W.2d 842; Gonzales v. State, 172 Tex.Cr. R. 556, 361 S.W.2d 393.
Appellant next complains that the court erred in overruling appellant's motion to suppress evidence which was the result of an illegal search and seizure. The trial judge held a hearing outside the presence of the jury on the motion to suppress, and overruled the motion to which appellant failed to object. See Martinez v. State, supra, and Gonzales v. State, supra. The facts of the search and seizure have been set out above. The appellant is in no condition to object to the entry of the police into the apartment, as the entry was shown to be with appellant's consent, Sampson v. State, 160 Tex. Crim. 302, 268 S.W.2d 661; Maldonado v. State, Tex.Cr.App., 397 S.W.2d 862. Officers also were within their authority to seize the bedspread as it was in open view and fitted the description of the stolen bedspread, Howard v. State, Tex.Cr.App., 453 S.W.2d 150; Hudson v. State, Tex.Cr.App., 453 S.W.2d 147; Marshall v. United States (5th Cir.) 422 F.2d 185. Appellant apparently relies on Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685. As authority that the officers could not enter and search the entire house without a warrant, but that they were limited to the area immediately surrounding appellant. It might be pointed out that this trial and the prior search and seizure took place before the decision in Chimel v. California, supra, was handed down, and Chimel has not been held to be retroactive, Lyon v. United States, 416 F.2d 91 (5th Cir.), and Thornton v. State, Tex. Cr.App., 451 S.W.2d 898. Also, the ring found on appellant was the only stolen item introduced into evidence in this case, Brown v. State, Tex.Cr.App., 453 S.W.2d 171.
Finding no reversible error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432331/ | 456 S.W.2d 11 (1970)
STATE of Missouri, Respondent,
v.
Joseph HENDRICKS, Appellant.
No. 55270.
Supreme Court of Missouri, Division No. 1.
July 13, 1970.
*12 John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Simon G. Miller, Clayton, for appellant.
ARTHUR W. ROGERS, Special Judge.
Appellant, Joseph Hendricks, was charged with the murder of one Francis A. Krewet. After conviction (jury trial) of murder in the first degree and sentence to life imprisonment, he appeals. The points relied on by appellant are: 1) the state failed to establish beyond a reasonable doubt an essential element in the crime charged, to-wit, that defendant made an assault on one Francis Krewet on the 22d day of October 1968, and 2) the court erred in denying defendant's motions to suppress statements made by defendant to police officers and video tape recordings taken in the prosecuting attorney's office in that these statements were obtained by means of mental and physical coercion.
We note that appellant does not contend that corpus delicti was not proven. In fact he concedes that the state presented substantial evidence that a deadly assault was made upon Krewet in the latter's home on the 22d day of October 1968. But, says defendant, no substantial evidence was adduced that he was in Krewet's house on that day.
The evidence presented by the state was that one Leroy Smith resided next door to the Krewet home and that defendant resided on the other side of the Smith home. Mr. Smith testified that on a Tuesday, around 1:30 a. m., he and his family returned to their home and he saw defendant coming from Krewet's house across a gangplank into the Smith yard and across it to his, defendant's, home; that defendant came from the back of the rear of Buttermilk's house; that Mr. Krewet was known as "Buttermilk". Officer Harris of the Wellston, Missouri, police department, testified that he and one Polys, another officer, went to the Krewet home on October 24 and described the condition in which he found Krewet. He further stated that he saw defendant at the police station that evening around 6:00 o'clock; that defendant was advised of his rights and waived each of them individually and admitted that he and one Timms planned to rob Buttermilk on Monday night or Tuesday morning. This officer related the story of defendant as it was given him of breaking into the Krewet home, ransacking it, and laying in wait until Krewet arrived when they assaulted him. Newspapers dated October 21, 22, and 23 were still in the Krewet yard. Harris testified that he learned that Krewet last worked at his regular place of employment on October 21, and that he, Krewet, left Gen and Marv's Tavern at approximately 1:00 or 1:30, at closing time, and that he had come in at 7:00 p. m. on October 21. Police officer Katz testified that defendant, after being advised of his rights, at 6:00 o'clock on October 25 admitted that late October 21 or early October 22, he and one Timms assaulted and robbed Krewet in Krewet's home and that later that night defendant was taken to the prosecuting attorney's office where video tape recordings of defendant's statements and admissions were made. The video tape was entered in evidence. The pictures and recorded voices were first presented to the trial court on hearing of the motion to suppress, were presented again to the jury, and were again presented before this court. For the reasons herein given, we rule that the video *13 tape recordings were admissible in evidence. Statements made by defendant and as recorded corroborate the testimony of police officers of admissions made to them by defendant of the entry into the home of Krewet and the assault made, according to the state's theory in the early morning hours of October 22, 1968. Evidence adduced on the part of defendant by those residing in the same house as defendant that defendant was in the Smith yard on the night of October 22 to quiet Smith's barking dog is not an answer to the state's theory and evidence that defendant was seen in the Smith yard at 1:30 a. m. October 22. We deem the evidence sufficient to support the jury verdict.
Next we consider the admissibility of the video tape recording of defendant's statements and confession. The trial court held a hearing outside the presence of the jury and ruled the tape admissible on defendant's motion to suppress all statements made or purportedly made by defendant to police officers and video tape purported "confession" photographed and recorded in the prosecuting attorney's office of St. Louis County, Missouri. The court ruled that any statement made by the defendant was voluntary and, therefore, admissible.
At the trial, defendant objected to the offer of the showing of the video tape and was overruled. The jury saw the pictures and heard the recording of the examination of defendant.
Not yet published, but entered in the records of this court, is the decision in the case of State of Missouri v. Lusk, 452 S.W.2d 219, handed down April 13, 1970. Although the admissibility of tape recordings had no bearing on the result of that case, the court, because the case was ordered remanded for retrial and because the issue of admissibility of video tape recording of statements of defendant would be presented, treated with that question. Citing State v. Perkins, 355 Mo. 851, 198 S.W.2d 704, 168 A.L.R. 920, it is ruled that a taped recording of a confession, after proper foundation, is admissible; that moving pictures may be shown to the jury when properly identified and when material to an issue, citing other cases, and that the use of video tape is a combination of the two.
We deem it unnecessary to again discuss the admissibility of video tape recordings and would affirm what is written in State v. Lusk, supra, that such recordings are admissibile when proper foundation, voluntariness, is established. The trial court found, on hearing, that statements made by defendant and entered in evidence were voluntarily made.
The jury was properly instructed that admissions entered in evidence should not be considered unless found to be voluntarily made.
The judgment of the trial court is affirmed.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432333/ | 456 S.W.2d 370 (1970)
Ex parte James Franklin BRADLEY.
No. 43217.
Court of Criminal Appeals of Texas.
July 15, 1970.
James S. McGrath, Beaumont, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
This is an appeal from an order entered in the Criminal District Court of Jefferson County remanding appellant to custody for extradition to the State of Oregon to answer a charge of assault with a dangerous weapon contrary to O.R.S. 163.250 (State of Oregon).
At the habeas corpus hearing the State introduced into evidence the Executive Warrant of the Governor of Texas, regular on its face, authorizing the arrest and return of the appellant to the State of Oregon and then rested.
The appellant offered several of the supporting papers into evidence and testified himself. We find nothing therein which defeats the prima facie case made by the introduction of the Governor's Warrant, regular on its face.
Nevertheless, appellant claims that the alleged crime occurred in Oregon more than 10 years prior to the date of the *371 indictment included among the supporting papers. It is his contention that the offense is barred by the statute of limitation, it being presumed that the laws of Oregon are the same as the laws of this state in an absence of a showing to the contrary. He bases this claim upon the fact that in one portion of the application for requisition the date of the alleged offense is reflected as January 15, 1957. Elsewhere in the said application for requisition, in the indictment and other supporting papers the date of the alleged offense is consistently referred to as January 15, 1967. It is obvious that the date in the portion of the application for requisition relied upon by the appellant is a typographical error. We reject appellant's contention.
Next, appellant contends that the Oregon indictment returned against him was not authenticated by the executive authority as required by Article 51.13, Sec. 3, Vernon's Ann.C.C.P. It appears from the record before us that the said indictment was one of the supporting papers and was annexed to the Oregon Governor's Requisition. The said requisition expressly certifies the annexed documents "to be authentic and duly authenticated in accordance with the laws of this State." We know of no requirement that authentication by the executive authority must be made upon the individual indictment or other instruments.
Appellant's remaining contention is that the trial court erred in remanding him to custody for extradition since the application for requisition was shown to be false. In said application the Oregon District Attorney swore the request was made in good faith and was not to collect a debt or for any private purpose whatsoever, and if the requisition was granted, the criminal proceedings would not be used for any private objects.
We do not regard appellant's testimony as to the difficulties with his wife and father-in-law in Oregon and their threats to put him in prison sufficient to render such application for requisition false or sufficient to defeat extradition.
The judgment is affirmed. A motion for rehearing will not be entertained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432336/ | 456 S.W.2d 359 (1970)
Ernest MORGAN, Appellee,
v.
Daisy Morgan DILLARD et al., Appellants.
Court of Appeals of Tennessee, Western Section.
February 2, 1970.
Certiorari Denied July 6, 1970.
*360 W.T. Diamond, Jr., and Roger C. Murray, Jr., Jackson, for appellants; Fonville & Diamond, Murray & Murray, Jackson, of counsel.
Waldrop, Hall & Tomlin, and James H. Wallace, Jr., Jackson, for appellee.
Certiorari Denied by Supreme Court July 6, 1970.
MATHERNE, Judge.
The complainant Ernest Morgan filed suit in Chancery to establish fee simple title *361 to an 8.44 acre tract of land in Madison County, Tennessee.
Complainant is a child of Joe Morgan and wife Ellen Morgan. Joe and Ellen Morgan died intestate in the year 1923 at which time they owned the land in dispute. The defendants to this suit are all the other heirs at law of Joe and Ellen Morgan.
The thrust of complainant's Original Bill is that he has held exclusive and uninterrupted possession of the land since the death of his parents; he has paid the taxes thereon during this period; he has received rents and profits without an accounting to anyone; he has paid off an indebtedness on the property, rebuilt the dwelling, and has so held the property as his own for more than forty years. Complainant prayed the Court to adjudge him the fee simple owner of the 8.44 acre tract under the common law doctrine of title by prescription based upon twenty years exclusive and uninterrupted possession.
The defendants by Answer and Cross-Bill admit that complainant has been in possession for the period he claims, but allege this possession was permissive and by agreement of these defendants; that complainant has not held exclusive and uninterrupted possession except through their permission and by his agreement, and that they as tenants in common with complainant are not therefore cut off under the doctrine of twenty years title by prescription; and, that complainant owns only an undivided one-sixth of the 8.44 acre tract. The defendants prayed the land be sold and the proceeds divided among the complainant and the defendants in accordance with their relationship to Joe and Ellen Morgan.
The cause was tried before a jury. The questions submitted to the jury and the answer to each are as follows:
"1. Has the complainant, Ernest Morgan, been in exclusive and uninterrupted possession of the land in question for a period of more than twenty (20) years * * * claiming the same as his own, without any account with his co-tenants or claim on their part * * * they being under no disability to assert their right?" Answer: Yes.
"2. Was the complainant, Ernest Morgan's occupancy of the property in question by permission either actual or implied of the other heirs of Joe Morgan or Ellen Morgan?" Answer: No.
The Chancellor thereupon entered a decree which divested the defendants of all right, title, interest or claim in and to the 8.44 acres and vested title thereto in the complainant.
The defendants appealed to this Court, and assign the following errors: (1) The Chancellor erred in overruling the defendant's motion for a directed verdict; (2) The complainant failed to prove all the elements of adverse possession as required of a tenant in common against his co-tenants; (3) The evidence preponderated against the verdict, and (4) The Chancellor erred in overruling the defendant's motion for a new trial based upon the theory of newly discovered evidence.
The facts reveal that Joe and Ellen Morgan died in the year 1923 at which time complainant was living with them. After the death of his parents the complainant continued to live on the 8.44 acre tract. Complainant received all rents and profits, paid the taxes, and made no accounting to his co-tenants during all these years. The complainant testified that soon after the death of his parents he told some of the other heirs that if they wanted any part of the land to start paying some of the taxes. One of these other heirs was defendant Daisy Morgan Dillard who heard complainant so testify and when she testified she was not asked concerning the accuracy of the statement made by complainant.
It is established that no co-tenant of complainant made any demand or claim to complainant or anyone else that they had an interest *362 in the land. These co-tenants lived in other states for years except for Daisy Morgan Dillard who moved back to Jackson, Tennessee in 1944; they all knew that complainant was in possession of the property.
Complainant's sister Clara Morgan Alexander purchased a house and had it located on a corner of the property. This house was so located in about 1927 and Clara Morgan Alexander lived there until her death in 1961. Clara Morgan Alexander left no husband or child surviving her. The complainant testified that his sister Clara requested permission of him to locate the house on the property. Complainant gave this permission and helped Clara to move the house. There is no testimony to the effect that Clara Morgan Alexander lived on the property other than by permission of the complainant.
The proof established that complainant paid a $300.00 debt owing on the property at the time his parents died. Complainant has, since the death of his parents, rebuilt the home on the property. Evidence was presented that people with knowledge of the property treated it as belonging to complainant.
In 1967 complainant went to one Hal Wallace and offered to sell him a portion of the property. Hal Wallace requested that complainant have his sister Daisy Morgan Dillard sign the deed. Daisy Morgan Dillard refused to sign unless she received "a part" or "her part". Complainant refused to pay her any amount because he felt she did not have a part. This lawsuit was then filed to vest title in complainant. This claim by Daisy Morgan Dillard in 1967 was the first and only claim asserted by any co-tenant prior to the filing of suit.
The assignment of error that the evidence preponderated against the verdict of the jury is not well taken because this Court on appeal will not weigh the evidence to determine the preponderance. The foregoing rule is applicable to suits in Chancery as well as at law. National Life & Accident Ins. Co. v. Yates (1933) 16 Tenn. App. 344, 64 S.W.2d 524. Assignment of Error III is therefore overruled.
"The doctrine of presumption of title rests upon the simple fact of long-continued use and enjoyment, and requires no aid from `color of title.' Possession of land is prima-facie evidence of title; the law supposes that it had a legal origin, and when undisturbed for the period of twenty years, it becomes, in view of the law, an assurance of title of no less force or efficacy than the actual grant whose place it supplies. The presumption is not founded upon the idea that as a matter of fact a grant once existed, nor is it aided by the fact that the possession may have been held under some defective form of assurance: it rests alone upon a principle of public policy, to quiet the title of those who can show no other title than long-continued possession and use." Cannon v. Phillips (1854) 34 Tenn. 211 at 214.
Defendants insist the foregoing doctrine of title by prescription is unavailable to the complainant because the complainant does not show actual notice of his claim to the other co-tenants, and there is no proven act which would constitute an ouster, so as to set up the adverse possession in complainant as against the other tenants in common.
"The general principle is that there is a relation of trust between tenants in common, each having an equal right of entry and possession, and the possession of one is to be taken as a possession of all so that one's possession cannot be adverse to the others until there is a disseizin by him of the others by actual ouster." Eckhardt v. Eckhardt (1957) 43 Tenn. App. 1, 305 S.W.2d 346 at 347, and cases therein cited.
We agree the proof does not show an actual ouster of the co-tenants which is essential to establish a title claimed by adverse possession. However, it remains to *363 be determined if the complainant made out a title by prescription or twenty years exclusive and uninterrupted possession.
In the Eckhardt case, supra, the Court speaking through Judge Felts found there was not sufficient proof of an ouster or any act by the tenant in common which would amount to actual notice to his co-tenants that he was holding adversely to them, and the possession in that case was not under a registered assurance of title. The only proof was that one tenant in common held the exclusive and uninterrupted possession of the land for a period of more than twenty years with no accounting to his cotenants. In discussing the applicability of the doctrine of title by prescription the Court stated:
"So, while she failed to make out her title to this lot by adverse possession under our statute of limitations, we think she did make out her title by prescription or 20 years exclusive and uninterrupted possession. Under the above authorities, she could tack her husband's possession to her own, and the two of them had exclusive and uninterrupted adverse possession for more than 20 years, claiming the entire interest, taking the whole rents and profits, without accounting to the co-tenants. This was sufficient to warrant a finding of title in her under a grant that had been lost.
In the leading case of Marr's Heirs v. Gilliam, supra, 41 Tenn. 500, the Court fully discussed the doctrine of title by adverse possession under our statute of limitations and also the doctrine of title by prescription or lost grant. After pointing out that there must be a `notorious act of ouster' by one tenant of the others, before the act of limitations will operate against the others, the Court said:
`It is, however, well settled that the exclusive and uninterrupted possession by one tenant in common of land for a great number of years say for twenty or more claiming the same as his own, without any account with his co-tenants, or claim on their part, they being under no disability to assert their rights, becomes evidence of a title to such sole possession, and the jury are authorized to presume a release, an ouster, or other thing necessary to protect the possessor; and the action of ejectment by his co-tenants, in such case, is barred.
This presumption is an inference of fact to be drawn by the jury, to whom the evidence is to be submitted.' (citing cases, 41 Tenn. 501).
`Upon the same ground, a grant from the State, a release of an equity of redemption, the payment of a bond, etc., are presumed. But it may be rebutted by the infancy or coverture of the plaintiffs, or by the intervention of a particular estate, the relation of the parties, or other facts showing that the possession was not adverse to the owner, but by his permission or indulgence, or as his tenant.' (41 Tenn. 501, 502).
Likewise in Drewery v. Nelms, supra, 132 Tenn. 262, 177 S.W. 948, the Court discussed the doctrine of adverse possession, and, having done so said:
`A presumption of title in such cases may also arise, upon the same ground that a grant from the state is presumed, by an exclusive and uninterrupted possession of the land by one tenant in common for 20 or more years, claiming the same as his own, without any recognition of his cotenants or claim upon their part.
`This is an inference of fact which may de deduced from the whole proof on the subject. This presumption arises independent of the statute of limitations. It may be rebutted by the infancy or other disability of the parties, their actual relationship, or other facts showing the possession was not adverse but by the indulgence, permission, *364 or as tenant of the owner.' 132 Tenn. 262, 177 S.W. 948.
To the same effect: Hubbard and Wood v. Wood's Lessee, 33 Tenn. 279, 286; Hilton v. Duncan, 41 Tenn. 313, 318-319; Morelock v. Bernard, 83 Tenn. 169, 178; Burns v. Headerick, 85 Tenn. 102, 107, 2 S.W. 259, 261; Townsend, Tenancy in Common in Tennessee, 24 Tenn. L.Rev. 853, 855-856."
The foregoing authority is determinative of the present lawsuit. See also Hill v. Hill (1966) 55 Tenn. App. 589, 403 S.W.2d 769.
The rule applicable to verdicts in jury trials in Chancery is the same as that in actions at law. The findings of the jury, approved by the Chancellor, are binding upon the appellate court if there is any material evidence in support thereof. Schlicklin v. Georgia Conf. Ass'n (1961) 49 Tenn. App. 412 at 478-479, 355 S.W.2d 469.
There was ample material evidence as herein outlined upon which to base the two findings of fact as made by the jury. With those findings of fact established it results that the complainant has perfected his title by prescription based upon twenty years exclusive and uninterrupted possession. Assignments of Error I and II are therefore overruled.
The defendants claim the Chancellor erred in not granting a new trial based upon newly discovered evidence. In support of this motion the defendants filed the affidavit of one L.T. Hobson wherein the affiant stated that Clara Morgan Alexander lived in a house on the property from about 1927 until her death. An affidavit of defendant Daisy Morgan Dillard was filed to the effect she did not know L.T. Hobson had this information at the time of trial, and that L.T. Hobson had such knowledge as would demonstrate that the complainant did not exercise exclusive and uninterrupted possession of the premises in question. Neither affidavit stated the facts which Hobson knew except the fact that Clara Morgan Alexander lived on the premises for the time stated. That fact was put in evidence at the trial and the testimony of Hobson would have been cumulative only.
The Chancellor will not be reversed due to his refusal to grant a new trial based on newly discovered evidence which is merely cumulative. Courtesy Cab Co. v. Keck (1968) 59 Tenn. App. 309, 440 S.W.2d 610. Assignment of Error IV is therefore overruled.
It results all Assignments of Error are overruled and the decree of the Chancellor is affirmed. Cost in the Chancery Court to be as there adjudged; cost in this Court is adjudged against the defendants.
CARNEY and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432337/ | 456 S.W.2d 455 (1970)
UNITED FURNITURE AND APPLIANCE COMPANY, Appellant,
v.
Charles JOHNSON et ux., Appellees.
No. 483.
Court of Civil Appeals of Texas, Tyler.
June 25, 1970.
Rehearing Denied July 16, 1970.
*456 Kenley, Boyland, Hawthorn & Starr, Larry W. Starr, Longview, for appellant.
Bill Wilder, Henderson, Richard W. Fairchild, Nacogdoches, for appellees.
DUNAGAN, Chief Justice.
This is a suit for damages resulting from personal injuries arising out of an automobile accident. The original suit was filed against Jessie David Floyd, the driver of the vehicle with whom the plaintiff collided, and his employer, United Furniture and Appliance Company (appellant). Jessie David Floyd was not represented by an attorney at the trial of the case and is not a party to this appeal. Before the trial, the plaintiffs (appellees) impleaded State Farm Mutual Automobile Insurance Company, asserting a claim to "uninsured motorist" benefits upon the basis that Jessie David Floyd was an uninsured motorist. United Furniture and Appliance Company primarily defended the case upon the basis that Jessie David Floyd was not acting within the course and scope of his employment at the time the accident occurred.
The suit was tried to a jury and judgment was entered upon the jury verdict in favor of the plaintiffs-appellees against Jessie David Floyd and United Furniture and Appliance Company. Judgment was also entered in favor of the plaintiffs-appellees against State Farm Mutual Automobile Insurance Company. A separate appeal has been perfected by State Farm Mutual Insurance Company under Cause No. 473 in this Court. Appellant United Furniture and Appliance Company appeals from the overruling of its motions for instructed verdict by the trial court, the overruling of its motion for judgment notwithstanding the jury verdict, and the overruling of its amended motion for new trial following entry of judgment.
Upon the jury verdict judgment was rendered for appellees against United Furniture and Appliance Company, appellant in this case, in the sum of $54,400.00 and against State Farm Mutual Automobile Insurance Company in the sum of $10,000.00, with interest at the rate of six per cent (6%) per annum from the date of the judgment.
Appellant first contends there is "no evidence" or there is "insufficient evidence" to support the finding of the jury that Jessie David Floyd was acting within the course and scope of his employment at the time of the accident in question.
STATEMENT OF FACTS
United Furniture and Appliance Company was in the business of selling furniture, appliances, rugs and things of that nature, and normally delivered the merchandise it sold.
D. M. Willeford was secretary-treasurer, buyer, salesman, and general manager of United Furniture and Appliance Company.
Jessie David Floyd was United Furniture and Appliance Company's general delivery man who had been hired to do virtually anything his employer wanted done. Generally, his duties consisted of making deliveries, repairs, doing various "odds and ends" around the store and doing anything else he was told to do.
Floyd's immediate superior, Willeford, had the right to hire and fire employees and, specifically, he had and exercised the right to direct Floyd's daily activities for *457 United Furniture even down to the "minutest" detail of Floyd's work. According to Willeford's specific testimony, he had hired Floyd to do "* * * anything that I wanted done." If Willeford asked Floyd to do something, it was understood that Floyd was to obey the order; otherwise, Willeford had the right to dismiss him.
On the day of the accident, Willeford told Floyd to deliver a step ladder and a vacuum cleaner, owned by United Furniture to Willeford's home. The ladder and vacuum cleaner were to be used by Johnny Fincher, an employee of United Furniture its floor-covering and draperies man who was hanging draperies in Willeford's recently purchased home. While working at the Willeford home, Fincher was on "company business" and was on United Furniture's payroll.
Floyd put the step ladder and the vacuum cleaner in his own personal car and proceeded to deliver them to the home of Willeford as he had been directed to do by Willeford. Floyd testified that he put the ladder and vacuum cleaner in his own personal automobile to make the delivery because it was raining and he did not want to get these items wet. While proceeding to make the delivery in his personal automobile on a direct route from United Furniture and Appliance Company's store to the Willeford's home, the automobile in which he was driving collided with an automobile in which Mrs. Johnson was an occupant.
While United Furniture owned delivery trucks which Floyd could have used, he was not specifically instructed to use one of them to make the delivery in question. He was only told to deliver the items to the Willeford home. Moreover, Floyd had not been told by his employer that he must use the company trucks to make deliveries, nor had he ever been told or even requested by his employer not to use his personal car in making deliveries. While it was Willeford's intention that Floyd should use United Furniture and Appliance Company's pickup trucks to deliver the step ladder and vacuum cleaner, he did not express this intention to Floyd; he just assumed that Floyd would go in one of the pickup trucks. Upon United Furniture learning after the accident that Floyd had used his own automobile in making the delivery, he (Floyd) was never reprimanded or rebuked in any way for doing so. Floyd was not docked by United Furniture for the time he spent on the trip to the Willeford home on the occasion involved. Floyd was paid on an hourly basis and was paid by United Furniture for the trip to the Willeford home on the occasion of the accident. Willeford at no time paid Floyd anything for making that trip from his own funds.
Floyd testified that he had no personal reason whatsoever for taking his own car. There is evidence in the record that the delivery of the items for his employer was his only motivation for the trip on the occasion in question and at the time of the collision he was doing what he had been hired by United Furniture to do and told to do by Willeford.
The accident which formed the basis for this lawsuit occurred during Floyd's normal working hours for United Furniture and Appliance Company.
In fact, both Willeford and Floyd believed, and so testified that, in making the trip in question, Floyd was doing one of the specific things he had been hired to do.
On the occasion in question there was nothing mechanically wrong with Floyd's automobile which caused the collision. His automobile was in A-1 mechanical condition. It was in as good mechanical condition as the pickups that the company owned. As a matter of fact, the pickups owned by United Furniture did not have any power brakes and Floyd's automobile did.
The evidence revealed that United Furniture carried a policy of liability insurance which indemnified it against bodily injury and property damage liability which it was "* * * legally obligated to pay * * * *458 as the result of * * * the ownership, maintenance or use * * * of any automobile." (Emphasis ours.)
As above stated Willeford at no time instructed or requested that Floyd use only United Furniture vehicles, or that Floyd should not use his personal automobile, in discharging the duties of his employment. The reason why Willeford did not do so could well be because the policy of insurance carried by United Furniture covered not only company-owned vehicles but also "any automobile" used by United Furniture employees in the course and scope of their employment and was in such amounts as to fully protect United Furniture against liability for damages. Therefore, it would make no difference to Willeford whether a company vehicle or an employee's privately-owned automobile was used on company business.
Even though the automobile used to make the delivery on the occasion in question belonged to Floyd, nevertheless, since Floyd on the occasion involved was engaged in the performance of duties assigned to him by United Furniture and United Furniture had the right to control the "minutest" details of Floyd's activities in the performance of such duties, United Furniture had the right to control the manner in which Floyd operated his automobile on the occasion in question.
The evidence seemed to show without dispute that Johnny Fincher was employed by United Furniture as its floor covering and draperies man; that Willeford was having draperies hung in his home and that Floyd was to deliver the step ladder and vacuum cleaner to Willeford's home to be used there by Fincher. Willieford having testified that Fincher was at his home on "company business", we think under the evidence it becomes rather apparent that Fincher was to use the step ladder in hanging draperies purchased from United Furniture by Willeford which were delivered and to be installed by United Furniture and was to use the vacuum cleaner in cleaning up the mess made in the process of hanging the draperies.
It seems to be without doubt Floyd was impliedly authorized to use an automobile in delivering the step ladder and vacuum cleaner. This is manifest from the very nature of the service he was to perform. It was certainly not intended nor expected that he should carry such bulky and unwieldy objects on foot. The means of making delivery of such objects in this day and time is commonly by automobile.
OPINION
It suffices to say that consideration of appellant's points has required us to examine the entire statement of facts, and we have so conducted our examination of the record in the light of the rules announced by the Supreme Court in In Re: Kings Estate, 150 Tex. 662, 244 S.W.2d 660. In determining the "no evidence" question, which is one of law, we may consider only that evidence, if any, which viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (Sup.Ct., 1957). In determining the "insufficient evidence" question, which is one of fact, we consider and weigh all the evidence in the case to determine whether the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. We deem the evidence to be sufficient to support the jury's finding that Jessie David Floyd was in the course and scope of his employment at the time of the accident in question and said finding of the jury is not contrary to the overwhelming weight and preponderance of the evidence. Appellant's contention is overruled.
The appellant, United Furniture and Appliance Company, also complains of the trial court's action in overruling its objection and exception to special issue number *459 18[1] as submitted by the trial court in its charge to the jury.
The evidence in the case shows that Mrs. Johnson at the time of the accident in question did not have her seat belt fastened. The substance of the appellant's complaint is that the court in the damage issue number 18 should have confined the consideration of the jury to "such injuries as were proximately caused by negligence on the part of Jessie David Floyd". We think the objection was properly overruled by the trial court.
The evidence did not raise the issue that Mrs. Johnson's failure to have her seat belt fastened proximately caused any damage to her, and therefore the trial court did not err in refusing to instruct the jury that it should not award any damages proximately caused by the failure of Mrs. Johnson to have her seat belt fastened. The evidence shows nothing more than that Mrs. Johnson did not have her seat belt fastened at the time of the accident. There is no evidence that she suffered injury she would not have suffered or that her injuries were more severe than would otherwise have been the case, had she had her seat belt fastened. The burden is on a defendant claiming mitigation of damages not only to prove the lack of diligence on the part of a plaintiff, but also the amount by which the damages were increased by such failure. The appellant-defendant has failed to discharge this burden. Goedecke, Inc. v. Henderson, 388 S.W.2d 728, 730 (Tex.Civ.App., Amarillo, 1965, writ ref., n. r. e.); Tom Brown Drilling Company v. Nieman, 418 S.W.2d 337, 340-341 (Tex. Civ.App., Eastland, 1967, writ ref., n. r. e.); Hardison v. Beard, 430 S.W.2d 53, 57 (Tex. Civ.App., Dallas, 1968, writ ref., n. r. e.); Henderson v. Goedecke, Inc., 430 S.W.2d 120, 123 (Tex.Civ.App., Tyler, 1968) and cases cited therein; Stanley Manly Boys' Clothes, Inc. v. Hickey, 113 Tex. 482, 259 S.W. 160 (1924); International & G. N. R. Co. v. Sandlin, 57 Tex.Civ.App., 122 S.W. 60, 62 (1909, writ ref.); Blocher v. McArthur, 303 S.W.2d 529, 534-535 (Tex. Civ.App., Austin, 1957, writ ref., n. r. e.); 17 Tex.Jur.2d, p. 114, sec. 36.
Upon a careful examination of the entire record we cannot say that the evidence is insufficient to support the answer of the jury to special issue number 18 nor that the answer thereto is contrary to the overwhelming weight and preponderance of the evidence nor that said finding is excessive. We have considered each of appellant's points of error. They are overruled.
Judgment affirmed.
NOTES
[1] "What sum of money, if any, if paid now, in cash, do you find from a preponderance of the evidence, would fairly and reasonably compensate Plaintiffs for the personal injuries to Mrs. Peggy Johnson, if any, directly and proximately caused by the collision in question?
"Answer by stating the amount, if any, in `dollars' and `cents'.
"ANSWER: $50,000 dollars". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432342/ | 456 S.W.2d 104 (1970)
William R. LASATER, Appellant,
v.
The STATE of Texas, Appellee.
No. 42881.
Court of Criminal Appeals of Texas.
May 13, 1970.
*105 Charles F. Baldwin, Fort Worth, for appellant.
Guy Hardin, Dist. Atty., Pampa, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
This is an appeal from an order revoking probation.
On March 27, 1968, the appellant waived trial by jury and entered a plea of guilty before the court to an indictment charging him with the offense of possession of marihuana. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions and terms of probation.
Among those conditions are found the following:
"(a) Commit no offense against the laws of this State or any other State or the United States.
* * * * * *
"(j) Consume no alcoholic beverages."
On April 9, 1969, the State filed a motion to revoke probation alleging that the appellant had violated his probation by (1) receiving and concealing stolen property and (2) possessing marihuana and (3) consuming alcoholic beverages.
The court after a hearing on May 19, 1969, revoked probation, finding the appellant had received and concealed stolen property and consumed alcoholic beverages in violation of probationary conditions. The court then imposed sentence.
The appellant contends the court abused its discretion in revoking his probation.
The record reflects that the Sheriff of Wheeler County and other law enforcement officers, armed with a search warrant authorizing them to search for stolen property and narcotics, went to the appellant's home. There they found the appellant, and observed a sandwich and a partially filled beer can near the television set. *106 The house also contained several cases of beer and a large number of empty beer cans. During the search the officers discovered in a padlocked storage shed several electric typewriters known to have been stolen.[1] Thereafter the appellant had a conversation with the Sheriff and then led the officers to a place in his yard where he dug up a plastic bag containing stolen jewelry. Car wheels, a stereo convertor and other stolen items were also recovered.
Testifying in his own behalf, appellant admitted he had consumed beer during his probationary period and that he had taken "a pill" prior to the search. He related that the typewriters had been brought to his house by three men, one of whom he knew had a prison record, who asked him to keep the typewriters and sell them if he could for $25 apiece. He claimed he did not know at the time that the typewriters were stolen, but when the three men returned with a coin collection and jewelry "it didn't take Sherlock Holmes to figure out what was happening then." The appellant admitted that he continued to conceal the typewriters and did not report the matter to the authorities.
The appellant also testified that after the typewriters had been recovered during the search the Sheriff, who was his probation officer, promised that his probation would not be revoked if he cooperated and that it was for this reason he led the officers to the burial site of the jewelry.[2] The sheriff in his testimony confirmed the promise and stated that he took no action to revoke probation.
It is clear that the evidence was sufficient to authorize revocation and the court did not abuse its discretion in doing so.
It is appellant's contention, however, that it was unfair to revoke in light of the Sheriff's promise or grant of "immunity".
We first observe that the evidence uncovered prior to the promise would have been sufficient to sustain revocation. And, without deciding the question of a sheriff's right to act as a probation officer,[3] we further observe that neither a sheriff nor a probation officer has the authority to promise a probationer that probation will not be revoked. When the court extends clemency in the form of probation the relationship existing between the court and the probationer is in a way contractual, and it is the court and only the court which can decide whether probation is to be revoked. See Wilson v. State, 156 Tex. Crim. 228, 240 S.W.2d 774; Jones v. State, 159 Tex. Crim. 24, 261 S.W.2d 317; Glenn v. State, 168 Tex. Crim. 312, 327 S.W.2d 763.
The record reflects that the District Attorney on his own motion instituted the revocation proceedings and the court acted upon the same as it had a right to do.
The appellant further contends the court erred in admitting evidence of the discovery of stolen property since he had led the officers to such property and that his acts were tantamount to a confession for which he was given no warning. Even if it can be argued that such contention has merit, we observe that no objection on this ground was addressed to the introduction of such testimony. It appears that a motion to suppress was filed on the day of the revocation hearing but there is no showing that such motion was called to the trial court's attention. Further, such motion was not bottomed on the claim now *107 advanced. Still further, the appellant took the witness stand and testified to the same facts he contends the court erred in admitting. See Parker v. State, Tex.Cr.App., 384 S.W.2d 712.
Finding no abuse of discretion, the judgment is affirmed.
NOTES
[1] The evidence reflects that the typewriters had been taken in the burglary of a schoolhouse in Woodward, Oklahoma.
[2] The record reflects that subsequent to the search the appellant recovered and turned over to the Sheriff one of the typewriters which he had disposed of in Amarillo, and that he cooperated with law enforcement officers in the apprehension of a man wanted in Oklahoma.
[3] See Sections 10 and 31 of Article 42.12, Vernon's Ann.C.C.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96089/ | 194 U.S. 279 (1904)
UNITED STATES ex rel. JOHN TURNER
v.
WILLIAMS.
No. 561.
Supreme Court of United States.
Argued April 6, 7, 1904.
Decided May 16, 1904.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*285 Mr. Clarence S. Darrow and Mr. Edgar L. Masters for appellants.
Mr. Assistant Attorney General McReynolds for appellee.
*289 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
This appeal was taken directly to this court on the ground that the case involved the construction or application of the Constitution of the United States, and that the constitutionality of a law of the United States was drawn in question; and although it may be, as argued by the Government, that the principles which must control our decision have been practically settled, we think, the whole record considered, that we are not constrained to dismiss the appeal for that reason.
It is contended that the act of March 3, 1903, is unconstitutional because in contravention of the First, Fifth and Sixth Articles of Amendment of the Constitution, and of section 1 of Article III of that instrument; and because no power "is delegated by the Constitution to the General Government over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, sojourners or aliens, or over the freedom of speech or of the press."
Repeated decisions of this court have determined that Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive *290 officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right of trial by jury have no application. Chae Chan Ping v. United States, 130 U.S. 581; Nishimura Ekiu v. United States, 142 U.S. 651; Fong Yue Ting v. United States, 149 U.S. 698; Lem Moon Sing v. United States, 158 U.S. 538; Wong Wing v. United States, 163 U.S. 228; Fok Yung Yo v. United States, 185 U.S. 296; Japanese Immigrant Case, 189 U.S. 86; Chin Bak Kan v. United States, 186 U.S. 193; United States v. Sing Tuck, 194 U.S. 161.
In the case last cited the distinction on which Gonzales v. Williams, 192 U.S. 1, turned was pointed out. The question whether a citizen of Porto Rico, under the treaty of cession and the act of April 12, 1900, came within the immigration law of March 3, 1891, was purely a question of law, which being decided in the negative all questions of fact became immaterial.
In the present case alienage was conceded and was not in dispute, and it was the question of fact thereupon arising that was passed on by the Board, and by the Secretary on appeal.
Whether rested on the accepted principle of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe; or on the power to regulate commerce with foreign nations, which includes the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States, the act before us is not open to constitutional objection. And while we held in Wong Wing v. United States, supra, a certain provision of an immigration law invalid on that ground, this act does not come within the ruling.
In that case Mr. Justice Shiras, speaking for the court, said:
"We regard it as settled by our previous decisions that the *291 United States can, as a matter of public policy, by Congressional enactment, forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials.
"But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislature should, after having defined an offence as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents."
Detention or temporary confinement as part of the means necessary to give effect to the exclusion or expulsion was held valid, but so much of the act of 1892 as provided for imprisonment at hard labor without a judicial trial was held to be unconstitutional. The cases of Chae Chan Ping, Fong Yue Ting and Lem Moon Sing were carefully considered and applied.
We do not feel called upon to reconsider these decisions, and they dispose of the specific contentions as to the application of the Fifth and Sixth Amendments, and section 1 of Article III, and the denial of the delegation to the General Government of *292 the power to enact this law. But it is said that the act violates the First Amendment, which prohibits the passage of any law "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
We are at a loss to understand in what way the act is obnoxious to this objection. It has no reference to an establishment of religion nor does it prohibit the free exercise thereof; nor abridge the freedom of speech or the press; nor the right of the people to assemble and petition the government for a redress of grievances. It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country, but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.
Appellant's contention really comes to this, that the act is unconstitutional so far as it provides for the exclusion of an alien because he is an anarchist.
The argument seems to be that, conceding that Congress has the power to shut out any alien, the power nevertheless does not extend to some aliens, and that if the act includes all alien anarchists, it is unconstitutional, because some anarchists are merely political philosophers, whose teachings are beneficial rather than otherwise.
Counsel give these definitions from the Century Dictionary:
"ANARCHY. Absence or insufficiency of government; a state of society in which there is no capable supreme power, and in which the several functions of the state are performed badly or *293 not at all; social and political confusion. Specifically 2. A social theory which regards the union of order with the absence of all direct government of man by man as the political ideal; absolute individual liberty. 3. Confusion in general.
"ANARCHIST. 1. Properly, one who advocates anarchy or the absence of government as a political ideal; a believer in an anarchic theory of society; especially, an adherent of the social theory of Proudhon. (See Anarchy, 2.) 2. In popular use, one who seeks to overturn by violence all constituted forms and institutions of society and government, all law and order, and all rights of property, with no purpose of establishing any other system of order in the place of that destroyed; especially, such a person when actuated by mere lust of plunder. 3. Any person who promotes disorder or excites revolt against an established rule, law, or custom."
And Huxley is quoted as saying: "Anarchy, as a term of political philosophy, must be taken only in its proper sense, which has nothing to do with disorder or with crime, but denotes a state of society in which the rule of each individual by himself is the only government the legitimacy of which is recognized."
The language of the act is "anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law, or the assassination of public officials." If this should be construed as defining the word "anarchists" by the words which follow, or as used in the popular sense above given, it would seem that when an alien arrives in this country, who avows himself to be an anarchist, without more, he accepts the definition. And we suppose counsel does not deny that this Government has the power to exclude an alien who believes in or advocates the overthrow of the Government or of all governments by force or the assassination of officials. To put that question is to answer it.
And if the judgment of the board and the Secretary was that Turner came within the act as thus construed, we cannot *294 hold as matter of law that there was no evidence on which that conclusion could be rested. Even if Turner, though he did not so state to the board, only regarded the absence of government as a political ideal, yet when he sought to attain it by advocating, not simply for the benefit of workingmen, who are justly entitled to repel the charge of desiring the destruction of law and order, but "at any rate, as an anarchist," the universal strike to which he referred, and by discourses on what he called "The legal murder of 1887," Spies v. People, 122 Illinois, 1, and by addressing mass meetings on that subject in association with Most, Reg. v. Most, 7 Q.B. Div. 244; People v. Most, 171 N.Y. 423, we cannot say that the inference was unjustifiable either that he contemplated the ultimate realization of his ideal by the use of force, or that his speeches were incitements to that end.
If the word "anarchists" should be interpreted as including aliens whose anarchistic views are professed as those of political philosophers innocent of evil intent, it would follow that Congress was of opinion that the tendency of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population, whether permanently or temporarily, whether many or few, and, in the light of previous decisions, the act, even in this aspect, would not be unconstitutional, or as applicable to any alien who is opposed to all organized government.
We are not to be understood as depreciating the vital importance of freedom of speech and of the press, or as suggesting limitations on the spirit of liberty, in itself unconquerable, but this case does not involve those considerations. The flaming brand which guards the realm where no human government is needed still bars the entrance; and as long as human governments endure they cannot be denied the power of self-preservation, as that question is presented here.
Reference was made by counsel to the alien law of June 25, 1798, 1 Stat. 570, c. 58, but we do not think that the controversy *295 over that law (and the sedition law) and the opinions expressed at the time against its constitutionality have any bearing upon this case, which involves an act couched in entirely different terms and embracing an entirely different purpose. As Mr. Justice Field remarked in the Chinese Exclusion Case, 130 U.S. 581, 610: "The act was passed during a period of great political excitement, and it was attacked and defended with great zeal and ability. It is enough, however, to say that it is entirely different from the act before us, and the validity of its provisions was never brought to the test of judicial decision in the courts of the United States."
Order affirmed.
MR. JUSTICE BREWER, concurring.
In view of the range of discussion in the argument of this case at the bar I feel justified in adding a few words to what has been said by the Chief Justice.
First. I fully endorse and accentuate the conclusions of the court, as disclosed by the opinion, that, notwithstanding the legislation of Congress, the courts may and must, when properly called upon by petition in habeas corpus, examine and determine the right of any individual restrained of his personal liberty to be discharged from such restraint. I do not believe it within the power of Congress to give to ministerial officers a final adjudication of the right to liberty or to oust the courts from the duty of inquiry respecting both law and facts. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Const. Art. 1, sec. 9, clause 2.
Second. While undoubtedly the United States as a nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the nation, and too little effect has been given to the Tenth Article of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the *296 States, are reserved to the States respectively, or to the people." The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them.
Third. No testimony was offered on the hearing before the Circuit Court other than that taken before the immigration board of inquiry, and none before such board save that preserved in its report. Hence the facts must be determined by that evidence. It is not an unreasonable deduction therefrom that petitioner is an anarchist in the commonly accepted sense of the term, one who urges and seeks the overthrow by force of all government. If that be not the fact, he should have introduced testimony to establish the contrary. It is unnecessary, therefore, to consider what rights he would have if he were only what is called by way of differentiation a philosophical anarchist, one who simply entertains and expresses the opinion that all government is a mistake, and that society would be better off without any. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/96101/ | 194 U.S. 394 (1904)
UNITED STATES
v.
ANDERSON.
No. 560.
Supreme Court of United States.
Submitted March 21, 1904.
Decided May 16, 1904.
APPEAL FROM THE COURT OF CLAIMS.
*398 Mr. Assistant Attorney General Pradt for appellant.
Mr. M.D. Brainerd and Mr. J.A.W. Smith for appellees.
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
As there is no finding which tends even to establish any right at any time to the land in question in favor of the South and North Alabama Railroad, all consideration of that subject may be put out of view. Moreover, the existence of any supposed right in favor of that company is conclusively disposed of on this record by the finding as to the prior selection by the State of Alabama under the grant in aid of the Northeast and Southwestern Railroad and the approval of such selection by the Secretary of the Interior.
The Government makes no contention that if the title of the plaintiffs was of such a character as to entitle them generally to recover against the trespassers that the cause of action against the United States for the money collected by it from the trespassers is not one which is judicially cognizable. The sole contention of the Government is that the plaintiffs, after application for selections and before approval of the selections, had no such title to the land as would have justified a recovery from the trespassers, and, a fortiori, therefore had no such title as would warrant their recovering from the United States the sum of money which it collected from the trespassers for the elements removed from the land during the period between the date of the application for selections and the approval of the same by the Secretary of the Interior. This contention is based upon the proposition that, whilst under the act in question the grant of land within the place limits may have been one in praesenti, the right to the indemnity lands did not vest in the grantee until approval of the selections by the proper officers of the Government; and hence the legal title was in the United States as to such lands pending action on the application *399 for selections, and therefore at the time of the trespass the United States was alone authorized to recover for the depredations committed. Unquestionably the general doctrine is that where approval by the officers of the Government of selections of indemnity land has been made a condition precedent to the right to take such lands, the legal title remains in the United States until divested by the approval of the selections. Oregon & California Ry. Co. v. United States, No. 1, 189 U.S. 103. In consonance with this doctrine it has also been decided that, until approval of selections within the indemnity limits, land embraced in applications for selections remains the property of the United States to such an extent that it cannot be taxed as the property of the applicants. Wisconsin Railroad Co. v. Price County, 133 U.S. 496.
But even though it be conceded, arguendo, that the doctrine in question would allow rights to be acquired by third parties to the injury of the applicant after the making of the selections and pending approval thereof by the Government, it does not follow that it controls the controversy here presented. This results because on this record the rights of third parties are not involved, since the controversy concerns only the right of the United States to retain as against its grantees the proceeds recovered by it as the result of a trespass upon land after an application for the selection of such land and pending action thereon by the proper officers of the Government. Under these circumstances the case is one for the application of the fiction of relation, by which, in the interest of justice, a legal title is held to relate back to the initiatory step for the acquisition of the land. Many cases illustrating the doctrine in various aspects have been determined in this court.[1]
Indeed, this case is one coming peculiarly within the principle of relation, as the approval of the selections manifestly *400 imported that at the time of the application for selections the land in question was rightfully claimed by the applicant. And cogently does this become the case when it is considered that the findings establish that at the time the application for selection was made, on the face of the records of the land office, there was an enormous deficiency both in the place and indemnity lands. Shepley v. Cowan, 91 U.S. 330, 337.
Nor is the assertion well founded that this case is not a proper one for the application of the doctrine of relation because coming within the rule announced in United States v. Loughrey, 172 U.S. 206. At the time of the trespass complained of in that case the United States had taken no step to assert its reversionary rights in and to the land trespassed upon, the legal title to which was in the State of Michigan at the time the trespass was committed. Here as we have seen the grantee had exercised his right to apply for selections within the indemnity limits and had in legal from requested the approval of the same by the Government. Everything therefore which the grantee was required by law to do to obtain the legal title had been performed. These facts bring this case within the principle decided in Heath v. Ross, 12 Johns. 140, and Musser v. McRae, 44 Minnesota, 343, referred to in the opinion of the court in the Loughrey case, (p. 218,) as not being inconsistent with the principle there applied. Heath v. Ross was an action of trover for timber cut between the application for and date of a patent from the State, and its ensealing and delivery by the Secretary of State. The title was held to relate back to the first act, so as to entitle the plaintiff to maintain an action against a mere wrongdoer, for the value of the timber cut and carried away in the meantime. Musser v. McRae was an action brought to recover the value of timber cut by trespassers from indemnity lands selected by the agent of certain railroad companies, intermediate the application for selection and the patenting of the lands. To permit a recovery, it was held that the title evidenced by the patent related back at least to the date of the application for *401 selection. It was declared that the doctrine of relation was properly applied to the case, "for the advancement of justice, and to give the full effect to the grant it was intended to have." Among other cases relied upon by the Minnesota court as sustaining the application made of the doctrine was the decision of this court in Landes v. Brant, 10 How. 348.
Concluding, as we do, that the money in question belongs to the appellee as the successor in interest of the party for whose benefit the application for selections was made, it results that the judgment of the Court of Claims must be
Affirmed.
NOTES
[1] Gibson v. Chouteau, 13 Wall. 92, 100; Ross v. Barland, 1 Pet. 655; Landes v. Brant, 10 How. 348; Lessee of French v. Spencer, 21 How. 228, 240; Beard v. Federy, 3 Wall. 478; Grisar v. McDowell, 6 Wall. 363; Stark v. Starrs, 6 Wall. 402; Lynch v. Bernal, 9 Wall. 315; Shepley v. Cowan, 91 U.S. 330. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2432563/ | 898 S.W.2d 819 (1995)
QUEST CHEMICAL CORPORATION, Petitioner,
v.
Bertha ELAM, Respondent.
No. 94-1310.
Supreme Court of Texas.
May 25, 1995.
*820 Debora Beck McWilliams and Frank L. Hill, Austin, for petitioner.
March H. Coffield, Jasper, Richard O. Faulk, Houston, William B. Coffey, Jr., Beaumont, for respondent.
PER CURIAM.
This case requires us to decide whether the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. (1988), preempts Bertha Elam's causes of action. Because a majority of the Court holds that it does, we reverse the judgment of a court of appeals, 884 S.W.2d 907, and render judgment that plaintiff take nothing.
Bertha Elam was employed with the City of Beaumont's Parks Division. Her duties included eradicating weeds with Doom Weed Killer ("Doom"), an herbicide manufactured and marketed by Quest Chemical Corporation ("Quest"). Claiming to have suffered personal injuries resulting from her exposure to Doom, Elam sued Quest for negligence, strict liability, and breach of implied warranty. The trial court rendered summary judgment in favor of Quest, holding that FIFRA preempted Elam's causes of action. The court of appeals affirmed in part, holding that FIFRA preempted Elam's negligence claim. The court went on to conclude that FIFRA did not preempt Elam's causes of action for strict liability and breach of implied warranty, however, and it reversed the summary judgment as to those claims and remanded to the trial court.
FIFRA provides a detailed scheme for regulating the content and format of labeling for herbicides and other chemical substances. It requires, among other things, that all herbicides sold in this country be registered with the United States Environmental Protection Agency ("EPA"). See MacDonald v. Monsanto Co., 27 F.3d 1021, 1024 (5th Cir.1994) (discussing the details of FIFRA labeling requirements); Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.1993) (reviewing the preemptive scope of FIFRA). FIFRA preempts all common law tort suits against manufacturers of EPA-registered pesticides which are based solely upon claims relating directly or indirectly to labeling. King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346, 1349-50 (1st Cir.), cert. dism'd, ___ U.S. ___, 114 S. Ct. 490, 126 L. Ed. 2d 440 (1993); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied sub nom. Papas v. Zoecon Corp., ___ U.S. ___, 114 S. Ct. 300, 126 L. Ed. 2d 248 (1993). See 7 U.S.C. § 136v(b). FIFRA does not, however, necessarily preempt state-law claims for strict liability or breach of implied warranty. See Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605-606, 111 S. Ct. 2476, 2482, 115 L. Ed. 2d 532 (1991) (holding that FIFRA does not preempt local regulation of pesticide use).
Although causes of action for negligent testing, manufacturing, and formulating might escape FIFRA preemption, Worm, 5 F.3d at 747, the statute preempts Elam's particular strict liability and breach of implied warranty claims because they are based solely upon Quest's alleged failure to provide *821 adequate warnings and instructions on its product. See King, 996 F.2d at 1349-50; Papas, 985 F.2d at 518. In Interrogatory No. 27, Quest asked Elam to state the specific grounds on which she based her strict liability claim. Elam responded that "[t]he product was unreasonably dangerous for the purpose for which it was intended and thereby defective. There was no warning to persons situated such as plaintiff." When asked to detail the acts or omissions that caused or contributed to any other injuries she suffered, Elam responded that Quest "produced a product which was unreasonably dangerous and it injured the plaintiff. In addition, [Quest] failed to warn adequately ... the user of the dangers associated with the product, therefore rendering it further defective. [Quest] should have supplied complete instructions for the safe use of the product, and failed to do so." In Interrogatory No. 8, when asked what specific action each defendant should have taken to cure the allegedly defective and unreasonably dangerous product, Elam responded, "[w]arning." Moreover, in her brief to the court of appeals, Elam never argued that her strict liability or breach of implied warranty claims existed independently from her warning theory. In fact, she stated that "[i]t is respectfully submitted that the trial court's granting summary judgment to [Quest] erroneously denies [Elam] the opportunity to present her case to a jury to determine the adequacy or inadequacy of [Quest's] warning and her damages." (emphasis added).
Had Elam asserted factual grounds for her strict liability or breach of implied warranty causes of action other than those relating to inadequate warnings, FIFRA would not preempt her claims. Because she did not, however, the trial court correctly concluded that FIFRA preempts all of her claims.
Accordingly, the application for writ of error is granted. Pursuant to TEX.R.APP.P. 170, and without hearing oral argument, we reverse the judgment of the court of appeals and render judgment that Elam take nothing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432574/ | 898 S.W.2d 559 (1994)
STATE of Missouri, ex rel. Robert E. MARLER, Relator,
v.
STATE BOARD OF OPTOMETRY, Respondent.
No. WD 49418.
Missouri Court of Appeals, Western District.
November 29, 1994.
Motion for Rehearing and/or Transfer Denied January 31, 1995.
Application to Transfer Denied June 20, 1995.
*560 Kevin A. Thompson, Jefferson City, for relator.
Jeremiah W. (Jay) Nixon, Atty. Gen., Donna Ann Coleman, Asst. Atty. Gen., Jefferson City, for respondent.
Before SPINDEN, P.J., and LOWENSTEIN and ELLIS, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 1995.
SPINDEN, Presiding Judge.
The State Board of Optometry seeks to discipline Robert E. Marler's certificate to practice optometry in Missouri. Marler challenges the board's power to do so without obtaining authorization by the Administrative Hearing Commission (AHC).
Marler practiced under a conditional certificate of registration issued to him in compromise of his disagreements with the board. On May 19, 1993, the board notified Marler that it believed that he had violated the conditions imposed on his certificate and that it had scheduled a hearing to determine whether to inflict further discipline. Marler filed a petition for writ of prohibition contending that the board had no authority to conduct a hearing without AHC authorization. The trial court issued a preliminary writ, but quashed it on March 30, 1994. Marler appeals the order quashing the preliminary writ. We reverse.
This court has jurisdiction to consider Marler's appeal. An order quashing a preliminary writ is an appealable, final judgment. Missouri Department of Social Services v. Administrative Hearing Commission, 826 S.W.2d 871, 872 (Mo.App.1992).
Marler's conditional certificate resulted from an agreement he entered into with the board in settlement of the board's earlier attempt to revoke his certificate. Pursuant to § 336.110.2,[1] the board had filed a complaint with the AHC seeking authorization to discipline Marler's certificate. On June 4, 1987, the AHC concluded that cause existed to discipline the certificate, and the board *561 revoked it. Pursuant to § 536.100, Marler appealed to circuit court.
In January 1990, while his appeal was pending, Marler sought a new certificate.[2] On May 22, 1991, the board denied his application. Pursuant to § 336.110.1,[3] Marler complained to the AHC that the board had wrongly denied his application. While that complaint was pending at the AHC, the board and Marler entered into a settlement agreement which provided:
A. [The board] shall issue a license to [Marler] which shall be placed on probation for a period of five (5) years[.]
....
B. Upon the determination of the Board that [Marler] has failed to comply with the terms of this consent order, the Board may revoke [Marler's] license or may take such other or additional disciplinary action against [Marler's] license as the Board deems appropriate.
This agreement settled both his case pending on appeal and the second action pending before the AHC. The AHC responded to the settlement agreement with this order:
On July 31, 1991, the parties filed with this Commission a "Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law[.]" Upon review of this document, this Commission finds that the parties have knowingly and voluntarily entered into a settlement in this matter and have freely waived their right to a hearing before this Commission. Further, this Commission finds as true the facts agreed to by the parties[.] Pursuant to § 536.060, RSMo 1986, and 1 CSR 15-2.150(1), this Commission adopts the terms of the stipulation and agreement filed by the parties.
Accordingly, this Commission incorporates into this Consent Order and issues as its own the proposed order, agreed to by the parties, as it appears on pages 4 to 8 of the "Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law."
On May 19, 1993, the board notified Marler that it believed that he had violated the conditions imposed on his certificate, and it scheduled a hearing for July 10, 1993, to receive evidence concerning the alleged violations. The board granted Marler's request for a continuance and reset the hearing for October 1993. On October 7, 1993, the trial court issued a preliminary writ prohibiting the hearing. After a hearing on March 28, 1994, the court quashed its preliminary writ on March 30, 1994. In its order, the trial court said:
On July 31, 1991, Marler and the Board filed a Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law[.] The AHC adopted the Joint Stipulation on August 1, 1991.
The Joint Stipulation has no findings of fact or conclusions of law which conclude that Marler is qualified for licensure. Neither are there findings or conclusions which conclude that Marler is subject to further discipline by the Board. The Joint Stipulation is an agreement between the parties to a modification of the Board's previous order of revocation. In the Joint Stipulation, the parties agree that Marler will be issued an optometry license on probation with terms and conditions as set forth. The Board had authority to modify its order of revocation. Pursuant to the Joint Stipulation the AHC dismissed Marler's appeal.
*562 On May 19, 1993, the Board filed its Complaint alleging that Marler violated the terms of his probation. Subsequently, the Board set a hearing to determine the truth of the allegations set forth in the Complaint. This hearing was stopped by this Court's preliminary Order in Prohibition.
....
The Board has jurisdiction to hold a hearing to determine if Marler has violated the terms of his probation. If the Board exceeds its jurisdiction there is an adequate remedy at law on appeal pursuant to § 536.140.2(2).
In his first point on appeal, Marler concedes that if the August 1991 agreement legally placed his certificate on probation, he is subject to the further discipline the board now seeks. He argues, however, that he "is not on probation, and the 1991 Agreement was ineffective in its attempt to impose probation upon him." The reason, he asserts, is that the AHC did not make an independent determination that cause existed to discipline the new certificate about to be issued to Marler, and § 336.110.3 requires that determination. We agree.
Section 336.110.3 says:
Upon a finding by the administrative hearing commission that the grounds, provided in subsection 2, for disciplinary action are met, the board may, singly or in combination, censure or place the person named in the complaint on probation on such terms and conditions as the board deems appropriate for a period not to exceed five years, or may suspend, for a period not to exceed three years, or revoke the license, certificate, or permit.
This statute makes the board's power to place a certificate on probation conditional on the AHC's independent determination that cause exists, pursuant to § 336.110.2, to discipline the certificate. See State Board of Registration for the Healing Arts v. Masters, 512 S.W.2d 150 (Mo.App.1974); Missouri Real Estate Commission v. McCormick, 778 S.W.2d 303 (Mo.App.1989); Kennedy v. Missouri Real Estate Commission, 762 S.W.2d 454, 456-57 (Mo.App.1988).
Nothing in the AHC's order suggests that the AHC determined that the board had cause to place Marler on probation. The AHC found the facts to which the board and Marler stipulated to be true. The stipulated facts said:
... Since the date of [the] revocation [of his original certificate], [Marler] has had two ex parte orders of protection entered against him on behalf of his wife. One of the orders was made permanent.
... Since the date of [the] revocation [of his original certificate], [Marler] has been involved in two fist fights directly related to his insurance business. As a result of one of the altercations, [Marler] was found guilty of trespass and was fined $200.00.
... [Marler] failed to disclose the pending disciplinary action against him when he filed his U4 form with the Missouri Secretary of State's Office for a securities industry registration in April of 1986. [Marler] has subsequently failed to update the information which he originally provided on his U4 form, including failing to provide information regarding the Administrative Hearing Commission's decision and the revocation of his optometry license.
Without making a careful search, for the issue is not before us, we fail to find anything among the 16 grounds set out in § 336.110.2 which would have given the board cause to discipline Marler's certificate on these facts. Certainly, the AHC did not find that this was the case. The parties themselves, in their "joint proposed conclusions of law," did not assert that these facts were sufficient cause to discipline Marler's yet-to-be-issued certificate. They agreed only that "[i]f a hearing were held in this case, [the AHC] could find that [Marler] has failed to show that he is entitled to examination and licensure."
Hence, Marler is correct. Because the condition precedent for putting Marler on probation (the AHC's independent determination that cause for discipline existed) was not satisfied, the board did not have authority to seek to further discipline his certificate. Because the board sought to exceed its authority, the trial court should have made its preliminary writ absolute. We reverse the trial court's dismissal of this case and remand *563 for it to enter its order making its writ of prohibition absolute.
The trial court sought to avoid this result by asserting in its order dismissing this case that the board had not issued Marler a new certificate; it merely modified its original order to revoke his previous certificate. This is incorrect.
The certificate the board revoked was numbered 2295. When the board issued a certificate in fulfillment of the settlement agreement, the board numbered it DO3018. Obviously, the board did not believe that it was modifying the revocation order; it believed that it was issuing a new certificate. It asserted in the settlement agreement that it would "issue" a certificate to Marler; not revive his previous one. Indeed, the board was issuing a new certificate because a revoked certificate is cancelled, terminated, and void. The certificate had ceased to exist for four years. Its resurrection was not possible.
Moreover, the board lost jurisdiction to modify the revocation order. This court has issued conflicting opinions concerning an administrative agency's authority to modify its findings of fact and conclusions of law. In Sheets v. Labor and Industrial Relations Commission, 622 S.W.2d 391, 394 (Mo.App. 1981), we held that the agency could not modify its findings and conclusions once "reached and imparted to the litigants[.]" In Eleven Star, Inc. v. Director of Revenue 764 S.W.2d 521, 522 (Mo.App.1989), and Dillon, d/b/a Home Satellite Systems v. Director of Revenue, 777 S.W.2d 326 (Mo.App.1989), we held that an agency could modify its decision within 30 days after entering it. Regardless of when the board lost jurisdiction to modify its orderimmediately on imparting the decision to the litigants or 30 daysthe board's jurisdiction to modify its original revocation order had long expired.
All concur.
NOTES
[1] All statutory references are to the 1986 Revised Statutes of Missouri. Section 336.110.2 says, "The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any certificate of registration or authority, permit or license required by this chapter[.]"
[2] Marler actually requested "reinstatement" of his certificate, but a revoked certificate cannot be reinstated. The board correctly deemed his application to be seeking a new certificate.
[3] That statute provides, "The board may refuse to issue any certificate of registration or authority, permit or license required pursuant to this chapter for one or any combination of causes stated in subsection 2 of this section. The board shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of his right to file a complaint with the administrative hearing commission as provided by chapter 621, RSMo." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432604/ | 898 S.W.2d 32 (1995)
320 Ark. 501
ARKANSAS DEPARTMENT OF HUMAN SERVICES, DIVISION OF ECONOMIC AND MEDICAL SERVICES, Appellant,
v.
Michelle KISTLER, Appellee.
No. 94-1409.
Supreme Court of Arkansas.
May 15, 1995.
*33 Charles Mackey, Little Rock, for appellant.
Davis Duty, Fort Smith, for appellee.
ROAF, Justice.
Appellant, Arkansas Department of Human Services (DHS), Division of Economic and Medical Services, terminated appellee Michelle Kistler's participation in the Developmental Disabilities Services Alternative Community Services Waiver Program. Appellee Kistler filed a petition for judicial review pursuant to Ark.Code Ann. § 25-15-212 (Repl.1992), and the circuit court reversed the appellant's decision. We affirm the circuit court's reversal of the appellant's decision.
Appellee Michelle Kistler, born January 8, 1974, has congenital spina bifida and scoliosis, meningomyelocele paraplegia, hydrocephalus VP shunt, and a neurogenic bowel and bladder. She has a Wechsler Adult Intelligence ScaleRevised (WAIS-R) performance IQ of 68, WAIS-R verbal IQ of 80, WAIS-R full-scale IQ of 73, and a Vineland Adaptive Behavior Score of 109 plus or minus 8. Further, she receives Supplemental Security Income and is Medicaid qualified. She currently lives with, and is cared for by, her mother, Mrs. Jennifer Kistler. Because she is paraplegic, the appellee is confined to a wheelchair, needs assistance to get in and out of her wheelchair, needs assistance with bathing, and she cannot dress her lower extremities.
The Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35, Section 2176) allows states the option of providing home and community based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR (Intermediate Care Facility for the Mentally Retarded) Level of Care. In accordance with the act, the appellant instituted the Developmental Disability Services Alternative Community Services Waiver Program (Waiver Program) and adopted eligibility requirements for applicants. See Medical Services Policy 2075.1.
The appellee was admitted to participate in the Waiver Program on September 18, 1991, with an effective date of August 1, 1991. The appellee was notified on August 19, 1992, that she was no longer eligible to participate in the program and her benefits would be terminated August 29, 1992. The appellee requested a hearing, which was held on November 5, 1992, before Hearing Officer Diana Little of the Appeals and Hearings Section of DHS. On October 18, 1993, the hearing officer issued a decision upholding the termination of appellee's participation in the Waiver Program. Subsequently, the appellee filed a petition for judicial review in the Circuit Court of Sebastian County.
The Department of Human Services appeals from the circuit court's order reversing the agency decision. Appellant raises five points on appeal: (1) the trial court erred in awarding attorney's fees and costs; (2) the trial court erred in the standard of review it used; (3) the trial court erred in substituting its judgment for the judgment of the administrative hearing officer; (4) the trial court erred in reversing the administrative decision upon finding a violation of appellee's due process rights; and (5) the trial court erred in determining that appellant failed to file the entire administrative record and reversing the administrative decision on that ground.
I. Review of Agency Decision.
The appellant asserts the trial court erred in applying a preponderance of the evidence standard and in substituting its judgment for that of the administrative hearing officer. In reversing the termination of benefits, the circuit court stated:
While it is not entirely clear whether or not the Defendant has formally adopted a specific criteria for entitlement to Alternative Medicaid Waiver Services by reason of mental retardation, the preponderance of the evidence reflects that if indeed any such criteria was established, either by *34 formal action or by custom and usage, it was substantially identical to the criteria established for mental retardation under Section 12.05 C of Appendix 1, Subpart P, Regulation No. 4 (20 CFR § 404 et. seq.) adopted pursuant to the federal Social Security Act set out in Title II of the United States Code (42 USC); and that the criteria for mental retardation employed by the Vineland Adaptive Behavioral Test protocol is substantially identical to that prescribed by the federal guidelines and does not constitute a separate and additional mental retardation criteria; and that the Plaintiff, with a performance IQ of 68, verbal IQ of 80 and a full scale IQ of 73 and with other severe mental or physical impairments meets the aforesaid criteria for mental retardation.
Review of administrative agency decisions both by the circuit court and by the Supreme Court on appeal is limited in scope. Thomas v. Arkansas Department of Human Serv., 319 Ark. 782, 894 S.W.2d 584 (1995). Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Franklin v. Ark. Dep't of Human Serv., 319 Ark. 468, 892 S.W.2d 262 (1995). In addition, this court will not substitute its judgment for that of the agency unless the agency's decision is arbitrary and capricious. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). Finally, the evidence is given its strongest probative force in favor of the agency's ruling, and we do not reverse an agency decision when there is substantial evidence to support it. Thomas, supra.
Because our review is not directed toward the circuit court, we need only review the decision of the agency. On October 18, 1993, DHS issued its final decision terminating Kistler's participation in the Waiver Program. The sole basis for the hearing officer's decision to terminate benefits was the determination by the Utilization Review Section of the Office of Long Term Care that Kistler did not meet the ICF/MR Level of Care criteria because of her WAIS and Vineland Adaptive Behavior Scores. The relevant findings of fact and conclusions of law were:
FINDINGS OF FACT
* * * * * *
5. The summary of the Administrative Hearing was forwarded to the Utilization Review Section on December 15, 1992.
6. An EMS-704 dated January 12, 1993 was received in the Appeals and Hearings Office which indicated a decision that Ms. Kistler did not meet the criteria for DDS Waiver Services.
7. According to a memorandum from Walter O'Neal, M.D., Medical Director, Economic and Medical Services, dated January 14, 1993, Ms. Kistler was determined to not meet the criteria for ICF/MR level of care because her WAIS-R and Vineland Adaptive Behavior scores exceeded 70, which represents the upper limit of eligibility for ICF/MR level of care.
CONCLUSIONS OF LAW
1. Medical Services Policy 2075 states that Public Law 97-35, Section 2176, the Omnibus Reconciliation Act of 1981 allows states the option of providing home and community-based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR Level of Care.
2. Medical Services Policy 2075.1 lists eligibility requirements that must be met by Waiver applicants, including (# 1) that individuals must be developmentally disabled as determined by the Division of Developmental Disabilities Services (DDS), and (#10) that individuals must be determined by the LTC Utilization Review Committee to require an ICF/MR level of care.
3. Medical Services Policy 2075.3 #1 states prior to Waiver acceptance, DDS will administer a comprehensive Diagnosis and Evaluation to determine that applicants are individuals with developmental disabilities. DDS will route From EMS-703, *35 psychological reports, and medical reports to the OLTC Utilization Review Committee.
4. Medical Services Policy 2075.3 #2 states upon receipt of the EMS-703 and other reports, the Utilization Review Committee will determine if the applicant meets the ICF/MR Level of Care requirements. The results will be routed by EMS-704 to the County Office.
5. Medical Services Policy 2075.3 # 2 also states if at any time an individual does not meet the requirements for an ICF/MR Level of Care, he/she will not be Waiver eligible.
6. The Level of Care Criteria issued by the Office of Long Term Care governing medical necessity eligibility for the developmentally disabled to be medicaid eligible for services provided in an Intermediate Care Facility for the Mentally Retarded provide that a client must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof; (2) is manifested before age 21; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic self-sufficiency; and (5) reflects the client's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of life-long or extended duration and are individually planned and coordinated; further, a pre-admission/pre-reimbursement evaluation of the client performed by an interdisciplinary team (including the areas of psychology, medical, nursing, social and habilitation, as a minimum) must determine the need for active treatment, outline the areas of active treatment needed by the client, and state that the needs of the client will be met as a resident in an ICF/MR.
DECISION
In order to be certified for Alternate Waiver Services, an individual must meet the eligibility requirements specified in MS 2075.1, including the need for an ICF/MR level of care. At the time of Ms. Kistler's annual reevaluation, the Utilization Review Section of the Office of Long Term Care determined that she did not meet the ICF/MR Level of Care criteria, based on her WAIS and Vineland Adaptive Behavior Scores, and this determination was not reversed upon reconsideration of her eligibility following the appeal. One element of the medical necessity determination for an ICF/MR level of care classification considers the degree of functional limitations in the areas of major life activities, which is measured by the Vineland Adaptive Behavior test. Ms. Kistler's score in this testing did not support a substantial limitation; therefore, she was not determined to meet the ICF/MR Level of Care criteria. ...
(Emphasis supplied.)
In August of 1992, Ms. Kistler was notified her benefits would be terminated because she: "Does not meet ICF/MR admission criteria." After the administrative hearing, Walter O'Neal, M.D., Medical Director of the Economic and Medical Services Division, was contacted by the Appeals and Hearings Office. Dr. O'Neal responded in a letter that both Ms. Kistler's WAIS-R Full Scale IQ and her Vineland Adaptive Behavior Score exceed the upper limits of eligibility for ICF/MR level of care. These scores were from the testing done prior to her admission to the Waiver Program in 1991. No new testing was done for the 1992 reevaluation. Dr. O'Neal stated the upper limits of eligibility were a score of 70 on both the WAIS and Vineland tests, and Ms. Kistler's "application is denied." Based upon Dr. O'Neal's response, the hearing officer affirmed the termination of benefits to Ms. Kistler.
This case is comparable to Franklin v. Arkansas Dep't of Human Servs., supra, where we reversed the agency's decision. In his concurring opinion, Justice Newbern wrote "[a] decision can be nothing but arbitrary when it is based upon no discernible standard." In the instant case, Ms. Kistler's benefits were terminated because, according to Dr. O'Neal, her WAIS-R Full Scale IQ *36 and her Vineland Adaptive Behavior Score exceeded the upper limits of eligibility for ICF/MR level of care. However, other than the letter from Dr. O'Neal, we are unable to ascertain the "limits of eligibility."
Medical Services Policy 2075.1 (#10) states that individuals, to be eligible, must be determined by the Long Term Care Utilization Review Committee to require an ICF/MR level of care. In her conclusions of law, the hearing officer states that the Level of Care Criteria issued by the Office of Long Term Care provide that a "client must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof...." The record, however, is devoid of how that determination was madeother than Dr. O'Neal's statement of the applicable standard. On appeal, the appellant asserts Ms. Kistler did not fall within the definition of developmentally disabled, but the appellant has failed to express how the agency defines developmentally disabled.
The trial court applied federal social security guidelines and found the appellee met the mental retardation requirements. The trial court further found that the appellee has severe physical impairments which were also sufficient to justify an award of Alternative Medicaid Waiver Services. However, in its brief to the circuit court, the appellant contended the Waiver Program falls under the medicaid program which is administered by the appellant and, therefore, the social security regulations should not be applied.
We will not speculate, as the trial court did, that the federal criteria would be substantially identical to the state criteria if any criteria indeed existed. To be invalid as arbitrary or capricious, the agency's decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. See Enviroclean, Inc. v. Arkansas Pollution Control, 314 Ark. 98, 858 S.W.2d 116 (1993). Since the appellant has not established that a discernible standard exists, we hold the termination of the appellee's benefits was arbitrary.
II. Attorney's Fees and Costs.
The trial court ordered the appellant to pay all court costs and an attorney's fee for the appellee's attorney in the amount of $5,000.00. Our general rule relating to attorney's fees is that the recovery of attorney's fees is not allowed except when expressly provided for by statute. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994); Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). On appeal, the appellee submits that "overriding public policy requires the finding of an implied authorization in the Administrative Procedures Act for the payment of court costs and attorney's fees to or on behalf of claimants who prevail against State Agencies in administrative reviews." However, we find no basis for the award of attorney's fees.
Ark.Code Ann. § 25-15-212 (Repl. 1992) provides the cost of the preparation of the record shall be borne by the agency, and the agency may only recover the cost of the record from the appealing party if the agency is the prevailing party. Thus, the statute provides only that the cost of the record shall be borne by the agency. The terms "costs" or "expenses" when used in a statute do not ordinarily include attorney's fees. State v. McLeod, supra. Consequently, an award of attorney's fees is not expressly provided for by § 25-15-212.
Further, § 25-15-212 establishes an entitlement to "judicial review of the action under this subchapter." Section 25-15-212 establishes the rules and procedures applicable to the process. In Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984), this Court held the Rules of Civil Procedure do not apply to the judicial review procedure. In fact, we stated that when a party chooses to proceed pursuant to the Administrative Procedure Act he is bound by the procedures set out therein. Id. The procedures set out provide only that the cost of the preparation of the record may be borne by the agency.
Finally, Ark.Const. art. 5, § 20 prohibits awards of damages in lawsuits against the State of Arkansas and its institutions. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995). In Smith, we recognized that if *37 officers and employees of the State act without malice and within the scope of their employment, they are immune from an award of damages, including attorney's fees, in litigation. The trial court did not find that any of the DHS employees acted with malice, nor is there any evidence that the employees acted with malice. Consequently, the circuit court had no basis for the award of an attorney's fee.
III. Statutory and Constitutional Violations.
The circuit court found DHS failed to inform Ms. Kistler of the existence of a substantial body of evidence considered by the hearing officer, and the failure to make her privy to all the evidence material to and considered in arriving at the administrative decision constituted a deprivation of her right to due process as guaranteed by the Arkansas and United States Constitutions, thereby rendering the administrative decision fatally defective. In addition, the court found the appellant "failed to file the entire administrative record of the administrative proceedings with this court within ninety (90) days after the filing of Plaintiff's petition as required by A.C.A. § 25-15-212(d)(1) and therefore defaulted in its duties and obligations as specifically prescribed by the Act." Because we find the agency's decision was arbitrary, we need not address these points.
In sum, we affirm the circuit court's reversal of the agency's decision terminating Ms. Kistler's benefits and reverse the circuit court's award of an attorney's fee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432573/ | 655 F. Supp. 2d 1081 (2009)
Jeanne RODGERS, Plaintiff,
v.
METROPOLITAN LIFE INSURANCE COMPANY, a New York Corporation; the California State Automobile Association Short-Term Disability Plan; the California State Automobile Long-Term Disability Plan; and Does 1 to 50, inclusive, Defendants.
No. C 08-04599 CW.
United States District Court, N.D. California.
September 8, 2009.
*1082 Josette Johnson, San Francisco, CA, John Rohan Brydon Robert William Kenneth Farrell, San Francisco, CA, for Plaintiff.
Rebecca A. Hull, Michelle Yumi McIsaac, Sedgwick Detert Moran & Arnold LLP, San Francisco, CA, for Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR JUDGMENT
CLAUDIA WILKEN, District Judge.
Plaintiff Jeanne Rodgers moves for judgment on the administrative record on her claim for disability benefits under the Employee Retirement Income Security Act (ERISA). Defendants Metropolitan Life Insurance Company (MetLife), the California State Automobile Association Short-Term Disability Plan and the California State Automobile Association Long-Term Disability Plan cross-move for judgment on the administrative record. The matter was heard on July 16, 2009. Having considered oral argument and all of the materials submitted by the parties, the Court GRANTS Plaintiff's motion and DENIES Defendants' cross-motion.
FINDINGS OF FACT
Jeanne Rodgers worked for more than twenty years as an insurance sales agent for the California State Automobile Association (CSAA). In 2007, she began suffering from a variety of medical problems and, on the advice of her doctors, stopped working on November 17, 2007.
The CSAA maintains a Short-Term Disability Plan and a Long-Term Disability Plan for its employees. MetLife serves as the claims administrator of the Plans and funds benefits that are paid under them. The Short-Term Plan provides benefits for employees who are "disabled" based on the following definition:
Disabled or Disability means that, due to Sickness or as a direct result of accidental injury:
You are receiving Appropriate Care and Treatment and complying with the requirements of such treatment; and
You are unable to earn:
more than 80% of YOUR Predisability Earnings at Your Own Occupation from any Employer.
Administrative Record (R.) at 0024. The Plan gives MetLife "discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms *1083 of the Plan." R. at 0053. In order for an employee to receive benefits, the Plan requires, "Proof of Disability must be sent to Us. When We receive such Proof, We will review the claim." R. 0034. Proof is defined as, "Written evidence satisfactory to Us that a person has satisfied the conditions and requirements for any benefit described in this certificate. When a claim is made for any benefit described in this certificate, Proof must establish: the nature and extent of the loss or condition; Our obligation to pay the claim; and the claimant's right to receive payment." R. 0026.
According to her physicians, Rodgers suffers from extreme anxiety, depression, migraine headaches, and severe pain in her neck, low back, hips and legs. According to her psychiatrist, in March, 2007, she fainted at work and was taken to the hospital. The emergency room physician opined that her condition was stress-related. R. 0248-50. On May 1, 2007, neurologist Dr. Ilkcan Cokgor evaluated Rodgers. He noted that she had severe headaches and related symptoms of nausea, vomiting, and photosensitivity. He noted Rodgers experienced severe dizzy spells, loss of vision and saw auras. Additionally, Dr. Cokgor noted that she suffered from severe neck pain, and had "a lot of cervical muscle spasms." Johnson Dec., Ex. B at PLT 0060-61. An MRI taken the same day revealed multilevel degenerative disc disease within the cervical spine. Id. at PLT 0065. Rodgers' symptoms intensified over the course of 2007, and she was advised to stop work for approximately six months to provide time for recovery.
After stopping work, Rodgers made a claim under CSAA's Short-Term Disability Plan. As part of her application she provided MetLife with a release which allowed it to obtain copies of all of her medical records. R. 0299.
MetLife approved her claim for the period between November 15, 2007 and December 5, 2007. On December 4, 2007, MetLife notified Rodgers that in order to continue to receive benefits beyond December 5, 2007, she had to provide additional medical information documenting her disability, including copies of the office visit notes from her two most recent doctors' appointments, operative test results, diagnostic test results, rehabilitation or therapy notes, names and dosages of all medications, an assessment of her functional abilities and the date her physician anticipated she would return to work. R. 0295.
On December 4, 2007, MetLife contacted Rodgers' family physician, Dr. Meenal Lothia, to discuss her condition. On December 18, 2007, Dr. Lothia's office faxed to MetLife Rodgers' two most recent chart notes, which reported that she saw a psychiatrist weekly. The fax cover sheet also noted that Dr. Lothia's office had contacted Rodgers' psychiatrist with instructions to forward his records on to MetLife. R. 0284-86. Additionally, Dr. Lothia filled out a MetLife-provided form entitled, "Attending Physician Supplementary Statement" (APSS). On the form, Dr. Lothia noted that Rodgers suffered from anxiety and migraine headaches, and listed the medications she was taking. Dr. Lothia also noted that Rodgers was seeing a neurologist, Dr. Ilkcan Cokgor, and a psychiatrist, Dr. Nicholas Pappas, and provided contact information for both physicians. R. 0246. Rodgers claims that the form was faxed to MetLife on December 14, 2007, but MetLife maintains that it did not receive it until February, 2007, as part of the appeals process. In any event, it is undisputed that MetLife had the form before it issued its final denial of Rodgers' claim.
*1084 On December 20, 2007, MetLife wrote Rodgers a letter notifying her that it was denying her claim. R. 0292-94. The letter stated that the records provided by Dr. Lothia showed normal physical exam findings. Furthermore, it noted that the medical information regarding her mental health issues was based on self-reported problems and that there "was no medical information from a mental healthcare provider in the form of a mental status exam, global assessment of functioning (GAF), psychiatric evaluation and current cognitive functioning evaluation, the degree of your anxiety and your response to current medication." R. 0292. The letter further stated, "For further consideration of benefits, you will need to provide information from your treating physician that will address the following: 1. Abnormal clinical findings with medical rationale as to why you are unable to perform functional job duties. 2. Current restrictions and limitations that reflect the clinical findings. 3. Any other testing or treatment records supporting severity of impairment and your inability to perform the essential duties of your job with or without restrictions." R. 0293.
After receiving the denial letter, Rodgers contacted her psychiatrist, Dr. Pappas, and asked him to send information to MetLife. Dr. Pappas submitted a report to MetLife dated January 16, 2007.[1] R. 0248-50. The report described her treatment history, including her former and current medications. Dr. Pappas noted that, despite medication, at the time of her most recent appointment, Rodgers' depression had increased, and her anxiety was at a high level. He also noted that she continued to have frequent headaches, and leg and back pain that rated a six to seven on a scale with ten being the highest. His diagnosis noted anxiety and depressive disorders, obsessive compulsive personality disorder, migraine headaches, fibromyalgia, low back and leg pain, and severe, overwhelming pressures at work. R. 0249. His report concluded that "Jeanne Rodgers is unable to return to work at this time. Her headaches, insomnia, depression and anxiety must be controlled before she can work effectively. Her prognosis is fair to good, based on her previous reintegration abilities. Duration at least 6 months since her response to date has been so slow." R. 0250.
On January 29, 2008, MetLife again denied Rodgers' claim. R. 0263-0265. Although its denial letter acknowledged Dr. Pappas' report, it repeated the language from the December 20, 2007 denial letter stating that there was "no medical information in the form of a mental status exam" to support her claim. The letter advised Rodgers that she could appeal the decision, and that she could submit additional documents relating to her claim that she thought were required in order for MetLife to give her appeal proper consideration.
Rodgers obtained counsel, and sent a letter appealing MetLife's decision on February 15, 2008. The letter attached several documents, including the APSS form, and a January 30, 2008 letter from Dr. Lothia. Dr. Lothia described Rodgers' diagnosis, including depression, anxiety, migraines, and insomnia, as well as severe pain in her neck and her right hip and leg. Dr. Lothia also noted that a May, 2007 MRI revealed extensive arthritis in her neck and back, causing tremendous pain. R. 0256. Dr. Lothia concluded that "as a result of this combination [of symptoms], it is my professional medical opinion that Mrs. Rodgers is unable to perform her job until May 15, 2008."
Although the APSS form noted that Rodgers was under the care of Dr. Cokgor, *1085 a neurologist, and provided his contact information, MetLife made no attempt to contact him. It also made no attempt to obtain the May, 2007 MRI scan mentioned in Dr. Lothia's letter. Additionally, it did not ask Rodgers to send a copy of the scan or other information from Dr. Cokgor.
In March, 2008, MetLife sent a copy of Rodgers' file to several Independent Physician Consultants (IPCs). The record indicates that the reports were sent to Rodgers' treating physicians for review and comment, and that copies were provided to her counsel.
Dr. Marcus Goldman, a physician board-certified in psychiatry and neurology, reviewed the file and spoke to Dr. Lothia. He did not speak to Dr. Pappas. Dr. Goldman concluded that "the information does not adequately support psychiatric functional incapacity" and that Rodgers' work-related stress "would not be sufficient to establish the presence of a severely debilitating mental illness or disorder for which work would be precluded." His report did not address any of Rodgers' physical limitations. R. 0226-27.
Dr. Ahmed Robbie, a physician board-certified in neurology, also examined Rodgers' file and spoke to Dr. Lothia. His report concluded that Rodgers "has no physical or neurological limitations that would preclude her from performing her job" but did not address any of her psychiatric complaints. R. 0220-23.
Dr. David Knapp, certified in internal medicine and rheumatology, also issued a report analyzing Rodgers' claim. He reviewed her file, but was unable to contact any of her treating physicians. He concluded that "medical records do not document clinically significant objective medical impairments that support functional limitations or reduction in ability to work full time." He did not address the impact of any psychiatric conditions, noting that they were addressed in the review completed by Dr. Goldman. R. 0209-11.
Finally, MetLife sent Rodgers' file to another neurologist, Dr. Leonid Topper. Dr. Topper reviewed the file and spoke to Dr. Pappas. Like the other IPCs, he did not contact Rodgers' neurologist or obtain a copy of her MRI scan. His report concluded, "From a neurological point of view, based on migraine headaches alone, the claimant's situation does not warrant a determination of continuous loss of functionality since typically migraine headaches would justify intermittent days off, but not a continuous lack of functionality." R. 0202-06. The report also noted, however, "that this assessment does not cover the claimant's functionality in regards to her psychiatric diagnoses." R. 0205.
On April 2, 2008, MetLife issued a final denial of Rodgers' claim. MetLife concluded that there was insufficient proof that Rodgers qualified under the Plan's definition of disability. The denial letter outlined her job duties as reported by her employer, and also provided an extensive summary of the IPC reports. It advised that she had exhausted her administrative remedies under the Plan.[2]
CONCLUSIONS OF LAW
Pursuant to § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), Plaintiff seeks disability benefits under the Plan. This statute allows a participant "to recover benefits *1086 due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." Id.
I. Standard of Review
Under Rule 52 of the Federal Rules of Civil Procedure, each of the parties moves for judgment in its favor on Plaintiff's ERISA claim. Under Rule 52, the court conducts what is essentially a bench trial on the record, evaluating the persuasiveness of conflicting testimony and deciding which is more likely true. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir.1999) (en banc).
The standard of review of a plan administrator's denial of ERISA benefits depends upon the terms of the benefit plan. Absent contrary language in the plan, the denial is reviewed de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). However, if "the benefit plan expressly gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan's terms," an abuse of discretion standard is applied. Id. at 102, 109 S. Ct. 948. Under this standard, the administrator's decision will be upheld if is reasonable and supported by substantial evidence in the administrative record as a whole. McKenzie v. General Tel. Co. of Cal., 41 F.3d 1310, 1316-17 (9th Cir.1994), overruled on other grounds, Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 872 n. 2 (9th Cir.2008).
Here, there is no dispute that the Plan confers discretion upon MetLife, and that MetLife operates under a conflict of interest. In Abatie v. Alta Health & Life Insurance Co., 458 F.3d 955 (9th Cir.2006) (en banc), the Ninth Circuit held that, in situations where "a plan administrator denies benefits and (1) the wording of the plan confers discretion on the plan administrator and (2) the plan administrator has a conflict of interest," a court should apply an "abuse of discretion review, tempered by skepticism commensurate with the plan administrator's conflict of interest." Id. at 959. To determine the level of skepticism to apply when a conflict exists, a court must consider "all the facts and circumstances." Id. at 968. As the court explained:
The level of skepticism with which a court views a conflicted administrator's decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial, fails adequately to investigate a claim or ask the plaintiff for necessary evidence, fails to credit a claimant's reliable evidence, or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record.
Id. at 968-69. In Metropolitan Life Insurance Co. v. Glenn, ___ U.S. ___, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008), the Supreme Court affirmed that a plan fiduciary's conflict of interest should be "weighed as a factor in determining whether there is an abuse of discretion." Id. at 2350 (internal quotation marks omitted). The framework set out in Glenn is "similar to the one provided in Abatie." Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1024 (9th Cir.2008).
II. Consideration of Evidence Outside the Administrative Record
A district court may, in its discretion, "consider evidence beyond that contained in the administrative record that was before the plan administrator, to determine whether a conflict of interest exists *1087 that would affect the appropriate level of judicial scrutiny." Abatie, 458 F.3d at 970. Rodgers maintains that MetLife's decision should be viewed with skepticism because its failure adequately to investigate her claim demonstrates a conflict of interest.
When adjudicating a claim for benefits, ERISA administrators have a duty to adequately investigate the claim. Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461, 1463 (1997). This requires that the plan administrator engage in "meaningful dialogue" with the beneficiary. Id. "If the administrator believes more information is needed to make a reasoned decision, they must ask for it." Id.; see also Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 538 (9th Cir.1990) (burden is on the administrator to obtain information to make decision). As the Tenth Circuit has noted, ERISA fiduciaries "cannot shut their eyes to readily available information when the evidence in the record suggests that the information might confirm the beneficiary's theory of entitlement." Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 773 (10th Cir.2004) citing Booton, 110 F.3d at 1463-64.
In this case, MetLife was on notice, perhaps as early as December 14, 2007, and certainly no later than February 15, 2008, that Rodgers was under the care of Dr. Cokgor and had had an abnormal MRI scan. Compare Jordan v. Northrop Grumman Welfare Benefit Plan, 370 F.3d 869, 874 (9th Cir.2004) (administrator did not violate its duty to investigate a claim when it did not obtain documents it did not know existed.) Nonetheless, MetLife took no steps to obtain the MRI or other records from Dr. Cokgor, or to provide this information to its IPCs. Although its December 20, 2007 and January 29, 2008 denial letters informed Rodgers that she could send in additional information for consideration, the letters contained a boiler-plate explanation of what MetLife believed was missing. They did not provide a description of the missing information "in a manner calculated to be understood by the claimant." 29 C.F.R. § 2560.503-1(g); Saffon, 522 F.3d at 870. Therefore, the Court will consider MetLife's failure to communicate with Rodgers clearly and its failure adequately to investigate her claim in determining how much skepticism to apply in its review of MetLife's denial of benefits.
III. Plaintiff's Claim for Disability Benefits
Like the defendant in Abatie, MetLife operates under a structural conflict of interest: it is both the Plan administrator and the funding source for benefits paid under the Plan. As the Ninth Circuit stated, "such an administrator has an incentive to pay as little in benefits as possible to plan participants because the less money the insurer pays out, the more money it retains in its own coffers." Id. at 966. In addition, as discussed above, MetLife failed adequately to investigate Rodgers' claims. Considering these facts, the Court will temper its review of MetLife's decision with a moderate amount of skepticism.
Rodgers argues that MetLife abused its discretion in denying her claim because it impermissibly disregarded the opinions of her treating physicians that she was unable to work due to a combination of symptoms including anxiety, migraine headaches, depression and severe pain in her neck, low back, hips and legs. MetLife counters that the IPCs it retained to review her claim found no proof of disability, and it is entitled to rely on their opinions. While MetLife need not "accord special weight to the opinions of a claimant's physician," it nonetheless may not "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating *1088 physician." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003).
Here, Rodgers' treating physicians opined that the combination of her ailments rendered her unable to work. MetLife attempts to defeat Rodgers' claim by dividing her condition into discrete parts and arguing that, because the evidence for any single ailment did not support a finding of disability, Rodgers was not disabled under the terms of the Plan. The reports of MetLife's IPCs support this conclusion. Dr. Goldman, the psychiatric IPC, found that Rodgers was not disabled based solely on her psychiatric condition. Dr. Topper, the neurology IPC, concluded that Rodgers' migraine headaches alone did not render her disabled, but noted that "this assessment does not cover the claimant's functionality in regards to her psychiatric diagnoses." Similarly, Dr. Knapp deferred to Dr. Goldman's report but did not address the statements of Rodgers' treating physicians that the combination of mental and physical symptoms prevent her from working.
In contrast, Rodgers' treating physicians take a more holistic approach. Essentially, they conclude that her illness is greater than the sum of its parts, and that it is the combination of all of the symptoms that prevents her from returning to work. MetLife may not arbitrarily refuse to credit these opinions. Therefore, it abused its discretion in denying Rodgers' claim.
Because MetLife denied Rodgers' claim under the Short-Term Disability Policy, it never determined whether she qualified for benefits under the Long-Term Disability Policy. When, as here, a plan provides discretionary authority to the administrator, and the administrator has not yet had the opportunity to make a claims decision, the court must remand the claim to the administrator for consideration. Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 460-61 (9th Cir.1996). Therefore, Rodgers' claim for long-term disability benefits is remanded to MetLife.
CONCLUSION
Plaintiff's motion for judgment on the administrative record (Docket No. 14) is GRANTED. Defendants' cross-motion for judgment on the administrative record (Docket No. 18) is DENIED. The Court finds that Plaintiff is eligible for disability benefits under CSAA's Short-Term Disability Plan and orders Defendants to pay those benefits. Plaintiff's claim for benefits under the Long-Term Disability Plan is remanded to MetLife.
Plaintiff shall submit a proposed form of judgment, approved as to form by Defendants. After judgement enters, the Court will entertain a motion for attorneys' fees. If Plaintiff is dissatisfied with Defendants' decision on her claim for Long-Term Disability, she may file a new complaint, which will be related to this case.
IT IS SO ORDERED.
NOTES
[1] The report was submitted to MetLife in January, 2008, but was mis-dated January, 2007.
[2] In May, 2008, Rodgers filed another claim under the Plan claiming disability because she underwent surgery to repair damage to the tendons in her elbow. MetLife denied the claim, finding it was an impermissible attempt to revive her earlier denied claim. Because the Court finds that MetLife abused its discretion in denying Rodgers' initial claim, it does not reach the issue of whether she should have also been able to claim disability based on the surgery. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432748/ | 608 S.W.2d 233 (1980)
Marvin McKinley MORRISON, Appellant,
v.
The STATE of Texas, Appellee.
No. 59662.
Court of Criminal Appeals of Texas, Panel No. 3.
December 10, 1980.
Frank L. King, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., and William Everett Seymore, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, ODOM and PHILLIPS, JJ.
*234 OPINION
ODOM, Judge.
This is an appeal from a conviction for aggravated robbery. Punishment was assessed at twenty-five years.
Appellant contends the evidence is insufficient to prove he was a party to the offense. He was convicted by virtue of V.T.C.A., Penal Code Secs. 7.01, 7.02(a)(2), as a party with J. R. Clement, who judicially admitted to the actual commission of the robbery itself.
The evidence presented at trial established that on January 16, 1976, between 1:45 and 2:00 p. m., Clement robbed a teller at a bank in Lubbock. The teller who was robbed testified that she was approached by Clement at her teller window and told to put money in a sack. She further stated that she believed Clement was armed since he was reaching for a "bulge" in his jacket during the robbery. The teller also stated that she did not see appellant anywhere near the robbery scene.
The only evidence adduced at trial that tends to prove appellant, "acting with intent to promote or assist the commission of the offense[1] ... encourage[d], direct[ed], aid[ed] or attempt[ed] to aid [Clement] to commit the offense," Sec. 7.02(a)(2), supra, is as follows. Appellant and Clement came to Lubbock together the morning of the offense. Appellant arrived at a small "club" (an old house containing a juke box and pool table) with Clement sometime between 12:30 to 2:30 p. m. The two men stayed at this location until midnight. The operator of this club testified that appellant sent her to purchase some food and beer for them. He paid her in fifty and twenty dollar bills. The operator also stated that appellant gave her $140.00 cash to purchase a television for the club. The owner of the club and appellant were acquaintances, and the owner and his operator did purchase a television with the money given.
The operator of the club also stated that Clement left a gun at the club when he departed about midnight. She could not, however, find the gun the next morning. Further, she stated that the two men carried a briefcase into the club, but she never saw the contents of the case and the two men never discussed a robbery in her presence.
The State also presented evidence establishing that Clement lived with appellant for four months prior to the robbery. When the investigation of the robbery centered on Clement, several police officers went to appellant's house on January 22, 1976, to search for Clement. Appellant gave the officers permission to search his house and car. The search revealed a newspaper clipping concerning the robbery in Clement's bedroom, and Clement's sunglasses which he used during the robbery were found in the bathroom. The search of appellant's car revealed a handgun and holster under the driver's seat. Appellant was carrying over. $1000.00 at this time. Also in his possession was a mutilated $100.00 identified as one of the bills taken in the robbery. At this time both Clement and appellant were arrested.
In determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during, and after the commission of the offense. Wygal v. State, 555 S.W.2d 465, 468-69. Further, circumstantial evidence may be sufficient to show that one is a party to the offense. Wygal v. State, supra at 469. The issue before us is whether the circumstances in the case before us sufficiently establish that appellant, acting with intent to assist or promote the robbery, committed an act that encouraged, directed, aided or attempted to aid Clement in his commission of the robbery.
The State failed to place appellant at the scene of the crime; however, such is not necessary in every case. See Cross v. *235 State, 550 S.W.2d 61, 63. It was established that appellant lived with the perpetrator of the robbery, that the two men were together after the robbery, that appellant was in possession of large sums of money after the robbery and at the time of his arrest, that appellant possessed, six days after commission of the offense, a $100.00 bill taken from the Lubbock bank, and that six days after the robbery appellant had a gun under the seat of his car.
When the sufficiency of the evidence is challenged, we view the evidence in the light most favorable to the verdict. E. g. Clark v. State, 543 S.W.2d 125. Viewing the evidence in such light we find that appellant was convicted as a party to the offense by virtue of the facts that he and Clement lived together, were together before and after the offense, possessed a large sum of money after the robbery, and when arrested six days later had a $100.00 bill taken in the robbery and a gun in his possession. Acts committed after the robbery was completed could not make appellant a party to the offense. Easter v. State, 536 S.W.2d 223, 228. The circumstances must prove some culpable act before or during the robbery. Also, since appellant was not the primary actor, the presumption that one in unexplained possession of recently stolen property was the thief could not apply. One of the State's witnesses, on cross-examination, testified that his investigation revealed that the car used by Clement to commit the robbery was stolen shortly before he committed the crime. This would prevent speculation that appellant provided a car for Clement. The conclusion that appellant committed some culpable act rests entirely on conjecture. Every reasonable hypothesis except the guilt of appellant is not excluded by this evidence.[2] See Suff v. State, 531 S.W.2d 814, 817. We conclude that the evidence was not sufficient to show that appellant committed some act with intent to promote or assist the commission of the offense, by encouraging, directing, aiding, or attempting to aid Clement to commit the robbery. See Wygal v. State, supra at 469.
The judgment is reversed and an acquittal ordered in this cause.
NOTES
[1] The jury charge omitted "solicits," submitting only "encourages, directs, aids or attempts to aid" in its application of the law to the facts.
[2] The record also shows that two witnesses who might have shed additional light on the facts were not presented. The bank teller who was robbed testified that after Clement left the bank she informed her superiors. Two of the bank's officers went out the back door "and by that time, of course, all they could see was dirt flying." Whether they could see how many people were in the fleeing car is not shown because they did not testify. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432760/ | 608 S.W.2d 184 (1980)
Robert Wesley MUSGRAVE, Appellant,
v.
The STATE of Texas, Appellee.
No. 57175.
Court of Criminal Appeals of Texas, Panel No. 3.
March 26, 1980.
Rehearing December 23, 1980.
Hellmut A. Erwing, Houston, for appellant.
*185 Carol S. Vance, Dist. Atty., Douglas M. O'Brien and Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
OPINION
W. C. DAVIS, Judge.
This is an appeal from a conviction for unauthorized use of a motor vehicle. Punishment enhanced by two prior felony convictions, was assessed at life imprisonment. The appellant was indicted for theft and unauthorized use of a vehicle; however, the theft count was dismissed by the State. Trial was had before the court.
The appellant contends that the evidence is insufficient to sustain the conviction because the State did not prove that the appellant knew that the automobile was stolen. We agree with appellant's contention and reverse.
The State's case-in-chief consisted of testimony from three witnesses: Paul Merritt, the owner of the stolen car, and two police officers. Merritt testified that when he returned home from work, around 4:30 p. m. on July 23, 1976, his car was gone. The car had been parked in front of the house when he left for work that morning around six a. m. Merritt reported the theft to the police. On Sunday, July 25, 1976, at approximately three p. m., Merritt saw his 1966 Chevrolet Impala traveling on Westheimer St. Merritt followed the car until it pulled into a parking lot next to some apartments. He testified that he believed that three persons were in the car, although he was unable to further identify them, except to say that they all had blonde hair. During cross-examination, defense counsel asked the witness how many people got out of this car. Merritt responded, "The next thing I saw was three people walking into the apartment. I did not see them get out of the car. By that time the car had gotten into the parking lot." Merritt was unable to identify the appellant other than stating that the appellant was the man that he saw sitting in the police car later that afternoon.
Merritt called the police, and within minutes, they had set up surveillance of the area. Approximately two hours later, the appellant got in the stolen vehicle, drove off, and was immediately apprehended.
Office Yarborough testified that the appellant told him that his friend Cliff had given him the keys to his car so that he could go to the store. The officer testified that appellant did not tell him Cliff's last name, but the officer could not remember if the appellant did not know his last name or if appellant just refused to tell the officer. The officer testified:
"He did not tell me his last name and I asked him repeatedly if he knew that to be his street name, how well he knew him. He stated he only knew him a few days and he would not tell me his apartment number nor was he willing to take me back to the apartment he supposedly just left."
The last witness to testify before the State rested, Officer J. W. Webber, identified the appellant as the man arrested in the stolen car.
Defense witness James Nolen, the foreman at the shop where appellant worked, testified that on July 23, 1976, the day that the car was stolen, the appellant arrived at work about 9:30 a. m. James Stinchcomb worked with the appellant at the diesel tractor and truck service shop. He testified that he and the appellant usually ate breakfast together and then he would drive appellant to work. However, on July 23, 1976, abut 7:45 a. m. when Stinchcomb went to get the appellant for breakfast, he found him still in bed. The appellant told him that he did not feel well and that he would get up a little later. Stinchcomb said that the appellant got to work about 9:30 a. m. that day.
The appellant lived one mile from his place of employment. The appellant's employer, C. C. Nolen, testified that about 9 a. m. on July 23, 1976, he saw the appellant five blocks from the shop, walking to work. C. F. Nolen testified that the appellant *186 worked until 8:30 or 9:00 that evening, but that appellant left for a short period of time to cash his paycheck. The security manager at K-Mart testified that the appellant's paycheck had been cashed at the store on July 23, 1976. She was unable to ascertain the exact time that the check was cashed, but she was able to determine that the time was between 5:20 and 9:30 p. m.
The appellant testified that he was not feeling well on the morning of July 23, 1976. He said that he walked to work that morning and did not leave until 8:00 that night, except for fifteen minutes when he left to cash his paycheck. The appellant testified that on Sunday, the day that he was arrested, he woke up late, then walked to the store to get a paper. He said that about 2:00 that day, Cliff came over to his apartment. The appellant said that Cliff lived near his parents' home and that Cliff was going to give him a ride to his parents' house later. The appellant rode with Cliff to his apartment off of Westheimer St. about 3:00 p. m. The appellant said that he and Cliff were the only ones in the car, and that there was not a third person with them.
The appellant stated that he did not know Cliff's last name at that time; and that he had only met Cliff one time before, two weeks earlier. He said that he was at Cliff's apartment with some other people when both he and Cliff ran out of cigarettes. Appellant said that he was going to the store to get some, and Cliff handed him the car keys and told him to take his car. Appellant's version of the arrest was as follows:
"They told me the car was stolen and I told them that I didn't know that, I just borrowed the car to go to the store. He asked me who I got it from. I said Cliff. He asked me his last name, I told him I didn't know his last name. He didn't seem to believe me. Then he asked me which apartment he lived in. I told them I didn't know which apartment number it was, but I described where it was at, it was the last one in the row of apartments."
Evidence was adduced through several witnesses that the appellant did not own a car, and that he relied on several people for transportation. The appellant was on parole at the time of his arrest. After he was released from prison in April, the appellant lived with his parents for a while, then with a family named "Murphy." The car was stolen from Graistark Street. The appellant testified that he knew where that street was because it was in the same neighborhood that the Murphys lived in. It was also uncontroverted by the State that Graistark Street was about 25 miles from the area of town where appellant was living and working at the time of his arrest. The appellant described Cliff as being about 25 or 26 years old, with silverish hair. He said that Cliff worked on Studemont Street at a place that installed burglar bars.
The State introduced rebuttal testimony of M. D. George, a detective in the automobile theft division. George testified that the appellant insisted that Cliff had given him the keys to his car; however, he said that the appellant would not further describe Cliff. The detective also said that the surveillance of the apartments was stopped as soon as the appellant was arrested. The police did not contact the manager of the apartments about a tenant named "Cliff" because, "At that particular time it was nighttime." The detective said that the investigation stopped with the appellant's arrest because there were "just too many Cliff's" and "If the [appellant] wanted to tell me, he should have been able to give me the information."
The owner of the car was called as a defense witness. Merritt testified that it was raining on the afternoon that his car was stolen. He said that when he arrived home from work about 4:30 p. m., automobile tracks were still visible, uncovered by the rain, leaving the spot where his car had been parked.
Unauthorized Use of a Vehicle is set forth in V.T.C.A. Penal Code as follows:
"(a) A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled *187 vehicle without the effective consent of the owner.
(b) An offense under this section is a felony of the third degree."
The applicable mental states for this offense are defined in V.T.C.A. Penal Code, Sec. 6.03(a) and (b):
"(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result."
The State has the burden to prove all of the elements of an offense. Under the facts of this case, the State was required to prove that the appellant knew that the car was stolen in order to show that the appellant intentionally and knowingly operated the vehicle without the owner's consent. Knowledge that the property was stolen may be implied from the circumstances. Ehrman v. State, 580 S.W.2d 581 (Tex.Cr. App.1979); Walker v. State, 539 S.W.2d 894 (Tex.Cr.App.1976).
The personal, unexplained possession of recently stolen property is sufficient to raise a presumption or inference of guilt. However, the personal possession of recently stolen property is not sufficient to sustain a conviction for appropriation of that property if, when the accused was "first directly or circumstantially called upon to explain his possession of the property he made a reasonable explanation which is not refuted, showing his honest acquisition of the property." Prodan v. State, 574 S.W.2d 100, 102 (Tex.Cr.App.1978). See Smith v. State, 518 S.W.2d 823 (Tex.Cr.App.1975); Callahan v. State, 502 S.W.2d 3 (Tex.Cr. App.1973).
In Huff v. State, 492 S.W.2d 532 (Tex.Cr. App.1973), this Court reversed the defendant's conviction for automobile theft where the State proved that the defendant was in possession of a stolen automobile when arrested. The State also proved that defendant maintained that he had purchased the automobile. The State did not refute or prove the falsity of the defendant's explanation. We held:
"Where a defendant's explanation is reasonable and is sufficient to rebut the circumstance of possession of property recently stolen, the evidence is insufficient to sustain the conviction if it fails to show that the explanation was false."
In Glover v. State, 566 S.W.2d 636 (Tex. Cr.App.1978), this Court held that the evidence was sufficient to show that the defendant knew the automobile was stolen, thereby upholding his conviction for unauthorized use of a vehicle. In Glover, supra, the defendant was arrested after driving the stolen vehicle the wrong way on a one-way street. The defendant first told the officers that he had borrowed the car from a friend to pick up his aunt at the bus station. He later stated that he was on the way to the bus station to pick up his nephew. There were several inconsistencies in the defendant's story. There were also pry marks on the windshield of the stolen, car, the vent window had been pulled out, wires were hanging down from under the dash, and the key which was in the car's ignition did not match the car.
In Shaw v. State, 529 S.W.2d 75 (Tex.Cr. App.1975), we held that the evidence was sufficient to sustain a conviction for unauthorized use of a vehicle where the police attempted to stop a vehicle which was driving on the wrong side of the road and speeding. During the chase, police received information that the car had been stolen the previous day. The defendant drove the stolen car into a shopping center parking lot and then jumped out of the moving car. The defendant admitted that he was in the car, but maintained that he was a passenger in the car, and that he did not know the car *188 was stolen. A police officer testified that the defendant was the only person in the car.
Considering the facts and circumstances of this case, we find that the evidence is insufficient to sustain the conviction. The dissent concedes that possession of the stolen car was the only evidence to show the appellant's guilt and submits that the ultimate question is whether the appellant's explanation is reasonable. The reasonableness of the explanation is indeed a question of fact. However, even where the trial court is the sole trier of the facts, it remains incumbent upon the State to prove every element of the offense beyond a reasonable doubt. See Grant v. State, 566 S.W.2d 954 (Tex.Cr.App.1978). In this case, the State was required to prove appellant's knowledge that the vehicle was stolen. Possession alone is not sufficient to show that the appellant knew the property was stolen. The possession must be coupled with other significant circumstances to justify an inference of knowledge that the property was stolen. Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975); Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972).
The dissent cites Callahan v. State, 502 S.W.2d 3 (Tex.Cr.App.1973) for the proposition that the reasonableness of the accused's explanation is a question of fact. In Callahan v. State, supra, the defendant was convicted for burglary. The defendant and a companion were apprehended when police, responding to a silent alarm at 1:22 a. m., found the two behind the burglarized liquor store with the stolen liquor in their possession. The defendant explained that two unidentified men approached them and gave them $5.00 each to hold the whiskey until 8:00 p. m. the next night. We held,
"It should be remembered that a jury is not bound to accept an appellant's explanation of his possession of recently stolen property. (citations omitted) However, when the explanation is made at the time when the appellant's possession of recently stolen property is first challenged or questioned either directly or circumstantially, the necessity of showing the explanation is false is greater. This is particularly true where such explanation is reasonable and is sufficient to rebut the circumstance of possession of property recently stolen.... Still further, the falsity of an explanation may be shown by circumstantial evidence and determined by the jury in light of all the facts."
In this case, the appellant's possession of the car was explained. The State did not attempt to disprove the appellant's story by further investigation. See Huff v. State, supra. There were no other circumstances such as flight, inconsistent stories, or the physical condition of the car to indicate that the appellant knew the car was stolen. There are circumstance which weaken the State's case against the appellant. Paul Merritt saw three men with blonde hair in his car. He could not identify the appellant as one of the occupants of the car. Police knew that other suspects were still in the apartment. Furthermore, the evidence indicates that the appellant was at work, 25 miles away, when the car was stolen. Of course, the State was required to show only that the appellant knew the car was stolen, and not that the appellant actually stole the car; however, it is a circumstance which operates in the appellant's favor. The fact of possession alone is insufficient to support the conviction, in light of the surrounding facts and circumstances.
Accordingly, the judgment of conviction is reversed and remanded to the trial court with instructions to enter a judgment of acquittal.
DALLY, Judge, dissenting.
It should be remembered that this appellant was not prosecuted for theft of an automobile, V.T.C.A. Penal Code, Sec. 31.03(a), (b)(1); he was not prosecuted for appropriating stolen property knowing that it had been stolen by another, V.T.C.A. Penal Code, Sec. 31.03(a), (b)(2); he was prosecuted for the offense of intentionally and knowingly using a motor vehicle without the consent of the owner.
The majority says:
*189 "The appellant contends that the evidence is insufficient to sustain the conviction because the State did not prove that the appellant knew the automobile was stolen. We agree with appellant's contention and reverse....
"The State has the burden to prove all of the elements of an offense. Under the facts of this case, the State was required to prove that the appellant knew that the car was stolen in order to show that the appellant intentionally and knowingly operated the vehicle without the owner's consent. Knowledge that the property was stolen may be implied from the circumstances."
V.T.C.A. Penal Code, Sec. 31.07(a) provides that:
"A person commits an offense if he intentionally or knowingly operates another's boat, airplane or motor-propelled vehicle without the effective consent of the owner."
Paul Merritt, the lawful owner of the automobile, testified that he did not consent to the appellant's use of his motor vehicle. There is ample evidence that the appellant intentionally and knowingly drove and operated the motor vehicle which belonged to Paul Merritt. This evidence supports the allegations of the indictment and is ample to sustain the conviction. See e. g., Shaw v. State, 529 S.W.2d 75 (Tex.Cr.App.1975); Glover v. State, 566 S.W.2d 636 (Tex.Cr. App.1978).
It is the appellant who has interposed the defense that someone else stole the automobile and he, the appellant, not knowing it was stolen, used the motor vehicle thinking he had the consent of one who could lawfully give such consent. It is incorrect to say that the State must prove what the appellant has set up for his defense. The State proved all that is necessary to be proved to sustain the conviction and the judge as the trier of the facts did not believe the appellant's defense and found him guilty. Cf. Glover v. State, supra; Shaw v. State, supra.
Since the evidence amply supports the conviction for the unauthorized use of the motor vehicle, this Court is in error in saying that it was necessary for the State to prove that the appellant knew that the automobile was stolen. The majority are improperly acting as fact finders and have improperly acquitted the appellant. See Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App. 1979). I dissent.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
ONION, Presiding Judge.
This appeal is from a conviction for unauthorized use of a motor propelled vehicle, where the punishment was assessed at life imprisonment under V.T.C.A., Penal Code, § 12.42(d). The panel opinion on original submission held that the State had the burden of proving all the elements of the offense charged and the State failed to prove as it was required to do that the appellant knew the vehicle he was driving was stolen in order to show that he intentionally and knowingly operated the vehicle without the owner's consent. There was a vigorous dissenting opinion by Judge Dally.
On rehearing, and after further consideration, we agree with the original dissenting opinion, grant the State's motion for rehearing and affirm the judgment.
V.T.C.A., Penal Code, § 31.07, provides:
"(a) A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner.
"(b) An offense under this section is a felony of the third degree."
The elements of the offense under said § 31.07 are: (1) a person (2) intentionally or knowingly (3) operates an airplane, boat, or motor-propelled vehicle (4) without the effective consent of the owner. Neely v. State, 571 S.W.2d 926 (Tex.Cr.App.1978). The offense under said § 31.07 has the same elements as theft under V.T.C.A., Penal Code, § 31.03(a), (b)(1), except that in such theft there is the additional element of an *190 intent to deprive the owner of property. In Neely v. State, supra, it was held that the offense of unauthorized use of a motor-propelled vehicle could be proven by the same or less than all the facts necessary to prove theft; that it is a lesser included offense under the current 1974 Penal Code although it may not have been under the former Code. Further, in Neely it was held that since the facts would have sustained the defendant's conviction for theft under the current Penal Code, such facts would have sustained his conviction for the lesser included offense of unauthorized use of a motor-propelled vehicle as alleged.
The Practice Commentary to said § 31.07 reads:
"Section 31.07 combines and restates prior Penal Code arts. 1333 (using a boat without consent), 1341 (driving vehicle without consent), and 1342 (unlawful use of state's vehicle) and adds airplanes, which may soon become a problem. It proscribes the use of property without the owner's consent when the actor has no intent to deprive and thus is not guilty of theft.
"Boats and airplanes are included, in addition to motor vehicles in general, to cover sailboats and gliders, for example, which do not depend upon a motor for propulsion.
"Curiously, the penalty has been increased to a felony regardless of the value of the `borrowed' vehicle. A car thief, if he steals only automobiles with a value of less than $200, is better off if he is convicted of theft than if he is convicted of the `lesser' offense of driving without consent. Under prior law, art. 1340, the comparable offense became a felony only when the value of the `borrowed' car exceeded $200, and at that time $50 was the felony threshold for theft purposes." (Emphasis supplied.)
In the instant case, the State's evidence showed that on July 25, 1976, the appellant, a person, was stopped by the police while operating a motor-propelled vehicle, a 1966 Chevrolet, which had been stolen two days earlier. Paul Merritt, the lawful owner of the automobile, testified he had not given his consent to appellant to use his automobile. At the time of his arrest, appellant was in possession of five Chevrolet master ignition keys[1] and a switchblade knife and told the arresting officer, "There's nothing you can do to help me, I'm going back to the penitentiary." He told the officer he had obtained the car from a "Cliff," but did not know or refused to give Cliff's last name and refused to take the officer back to the apartment where Cliff supposedly was in the apartment complex the appellant had just left. He was described as being uncooperative.
The elements of the offense charged were adequately demonstrated by the State, including the element of culpable mental state of "intentionally."
The appellant, who had been convicted of possession of marihuana in 1967 and of three felonies involving theft and burglary in 1974 and was on parole at the time of his arrest, testified that he had met "Cliff" or "Clifford" about two weeks before the incident in question and at the time did not know Cliff's last name. He related Cliff had come by his apartment or room on July 25, 1976, and that he had gone with Cliff to Cliff's apartment where there were other people, and when it was discovered they all were out of cigarettes he offered to walk to the store. Cliff told him to take his (Cliff's) car and gave him the set of master ignition keys later found in his possession. He had only driven about two blocks before he was arrested. He testified he did not know the automobile involved was stolen. The appellant offered evidence, which if believed, would strongly indicate he could not have been the person who actually stole the 1966 Chevrolet on July 23rd. The trial court was the trier of the facts, the judge of the credibility of the witnesses and the weight to be given to their testimony. The trial *191 court had the right to accept or reject any evidence offered by the State or the appellant. The defense offered by the appellant that someone else stole the automobile and he, not knowing such fact, used the automobile thinking he had consent of the one authorized to give such consent does not create an additional element to the offense of which the appellant was convicted.
Viewing the evidence in the light most favorable to the judgment, we conclude the evidence is sufficient to sustain the conviction. The original dissenting panel opinion is correct. The State's motion for rehearing is granted and the judgment is affirmed.
ROBERTS, Judge, concurring.
The Court holds that a person commits the offense of unauthorized use of a motor vehicle if he (1) knowingly or intentionally operated another's motor vehicle (2) without the owner's effective consent. Under this holding the accused's knowledge that he was acting without the owner's consent is not an element of the offense. The Court's analysis, while giving effect to the state of mind requirement as it relates to conduct, ignores that requirement as it relates to the circumstances surrounding the conduct. V.T.C.A., Penal Code, Sec. 6.03 recognizes that the material elements of offenses vary in that they may involve (1) the nature of the forbidden conduct or (2) the attendant circumstances or (3) the result of conduct. With respect to each of these three types of elements, Section 6.03 attempts to define the kinds of culpability that may arise. The resulting distinctions are necessary to avoid confusing the proof requirements for each type of offense. S. Searcy & J. Patterson, "Practice Commentary," 1 Vernon's Texas Codes Annotated: Penal Code 87 (1973).
The offense of unauthorized use of a motor vehicle requires proof of the forbidden conduct and the attendant circumstances of the crime. The State had to show at a minimum that the appellant knowingly operated the motor vehicle of another (the conduct element) without the effective consent of the owner (the attendant circumstances element). Under the approach adopted by Section 6.03 the mental state requirement applies to the attendant circumstances element as well as to the conduct element of the offense. A person acts "knowingly" with respect to circumstances surrounding his conduct when he is aware that the circumstances exist. V.T.C.A., Penal Code, Sec. 6.03(b). In other words, knowledge that the requisite external circumstances exist is an element of the instant offense.
I would hold that Section 6.03 required the State to prove that the appellant was aware that he did not have the owner's consent to operate the vehicle in order to sustain its burden of proof.[*] But the Court apparently considers the issue of the appellant's knowledge as to the element of consent to be an affirmative defense which must have been raised and proved by the appellant. This approach may have been proper under the former Penal Code but it is not consistent with the new concept of culpable mental states adopted by the present Code. The Court is correct in saying that the appellant's "defense" (that he used the automobile thinking he had the owner's consent) did not create an additional element of the offense. That element of knowledge was created by the Penal Code's requirement that the proscribed culpable mental state the applied, to each distinct element of the offense-including the requisite attendant circumstances. The approach adopted by the Court today has failed to recognize this requirement, and it can only be described as incongruous to the present Penal Code.
PHILLIPS, W. C. DAVIS and CLINTON, JJ., join this opinion.
NOTES
[1] This fact was not mentioned in the panel opinion by the majority as the State's motion for rehearing points out.
[*] I would further hold that there was sufficient evidence for the trial court to have found that the appellant acted with knowledge of this requisite circumstances. Therefore I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432768/ | 608 S.W.2d 282 (1980)
Robert THORSON, Appellant,
v.
ROSEWOOD GENERAL HOSPITAL et al., Appellees.
No. A2400.
Court of Civil Appeals of Texas, Houston (14th Dist.).
October 22, 1980.
Rayburn P. Putney, Houston, for appellant.
Malcolm Williams, Jack R. Martin, Martin & Sperry, Frank B. Stahl, Larry D. Thompson, Lorance, Thompson & Wittig, Houston, for appellees.
Before J. CURTISS BROWN, C. J., and PRESSLER and JUNELL, JJ.
J. CURTISS BROWN, Chief Justice.
Robert Thorson (appellant or Thorson) sued Rosewood General Hospital (Rosewood or appellee) and W. S. Kafoglis, M.D. for personal injuries sustained. Dr. Kafoglis was non-suited at the end of the plaintiff's *283 case. Trial was to a jury which found, in answer to the special issues submitted, that Rosewood had failed to properly restrain Thorson in his hospital bed, which failure was a proximate cause of the incident in question and also that Thorson or his wife let the bed rail down, which conduct was negligence and a proximate cause of the incident in question. Negligence was apportioned as follows: Robert Thorson 25%; Geraldine Thorson 25%; Rosewood General Hospital 50%. Damages totaling $215,640.00 were found by the jury. Rosewood filed a motion to disregard the jury's answers to special issues and for judgment notwithstanding the verdict, which the trial court granted. Thorson appeals from the take nothing judgment entered against him.
Thorson was recovering from back surgery in Rosewood General Hospital on January 14, 1974. At 10:10 p. m. he was found on the floor of his room screaming, whereupon he stated that he had fallen out of bed. According to the nurses' notes concerning the incident, the bed rails were down on the left side of the bed. These notes and other evidence in the record support the inference that the failure of rail to be in an "up" position was a proximate cause of Mr. Thorson's fall.
Appellant's first point of error complains of the judgment n. o. v. entered in favor of Rosewood on the ground that there was evidence of probative force to support the jury's findings. In reviewing a judgment n. o. v., we must view all of the evidence supporting the jury verdict, while indulging every reasonable inference from that evidence. Only evidence and inferences which support the jury verdict are to be considered, and all contrary evidence and inferences are to be disregarded. Dodd v. Texas Farm Products Co., 576 S.W.2d 812, 814-15 (Tex.Sup. 1979). Thus, to uphold the trial court's granting of a judgment n. o. v. in favor of Rosewood, we must find that there was no evidence to support the jury's findings with regard to Rosewood's failure to properly restrain appellant.
Rosewood's own bed rail policy, which was introduced into evidence, provided the standard in this case. This policy declares that the bed rail are to be in the up position for certain patients, such as post-operative patients and heavily sedated patients. We find that appellant fit within the parameters of that policy. However, after a thorough review of the record, we have found no evidence whatever that Rosewood breached the standard. There is no evidence showing that only hospital personnel were in the area of appellant's room after Mrs. Thorson left at 9:30 p. m., nor evidence that any hospital personnel went into appellant's room between 9:30 and 10:10 p. m. There was no evidence that the bed rail was down for such a long period of time as to put the hospital on notice to put it up again. Neither have we found any inferences from other evidence which would lead to these conclusions.
Thus, appellant did not meet his burden of proof on the issue of appellee's negligence. Therefore, a directed verdict would have been proper and the judgment n. o. v. is also proper, Tex.R.Civ.P. 301. Appellant's first point of error is overruled.
Appellant's points of error two through eight all deal with damages. Since we have found the judgment n. o. v. that appellant take nothing to have been proper, we need not reach these damages issues.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432773/ | 608 S.W.2d 343 (1980)
Ex parte Joe Frank SANDERS, Relator.
No. A2516.
Court of Civil Appeals of Texas, Houston (14th Dist.).
November 12, 1980.
*344 Michael A. Culling, Deer Park, for relator.
Gwendolyn F. Guinn, Harris County Child Support Div., Houston, for appellee.
Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.
PAUL PRESSLER, Justice.
Relator seeks discharge from custody to which he was committed after being found in contempt of court for failure to pay $6,000.00 child support. Confinement was ordered for ten days and until payment of $2,000.00 of the arrearage, court costs, and attorney's fees of $200.00. Relator was further ordered to pay the balance of the arrearage through additional monthly payments of $100.00 until the total arrearage is paid. Relator claims that he is being held illegally because he is financially unable to comply with the court's order.
If an offender cannot perform the act which alone will purge him of contempt and has not voluntarily brought the disability upon himself, the court is without power to imprison him for an indefinite period as punishment for an offense already committed. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948); Ex parte McCrary, 538 S.W.2d 2 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ). A writ of habeas corpus is a collateral attack upon a contempt order. The order is void if the evidence offered at the contempt hearing conclusively establishes that at the time Relator had no source from which he might reasonably expect to pay the amount adjudged against him. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967).
Relator testified at the hearing that he had only twenty-six or twenty-seven dollars in the bank and that he had tried unsuccessfully to borrow the amount of the arrearage from a bank, his parents and a fellow employee. While it is not clear from the record whether Relator is renting or buying a house, he did testify that he was living in an apartment which would suggest that he is indeed renting. Relator also testified that he has not been employed steadily since the divorce and that only in the two months prior to the hearing had he earned a net of some $300.00 per week. The testimony of Relator was uncontradicted.
Relator conclusively established his inability to pay the amount of arrearage ordered by the trial court. Denial of relief would result in his continuing imprisonment without the ability to perform the one act which would gain his release. The contempt order of the trial court is therefore set aside, and Relator ordered discharged.
Although Relator has made no effort to make child support payments since release from his initial imprisonment, this continued disobedience of the child support order is not presently before this court. This proceeding does not preclude another motion charging Relator with contempt of court for his current failure to pay child support.
Relator is ordered discharged. | 01-03-2023 | 10-30-2013 |
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