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https://www.courtlistener.com/api/rest/v3/opinions/2999171/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3417
JUAN ARMSTRONG, et al., on behalf of themselves
and others similarly situated,
Plaintiffs-Appellants,
v.
LASALLE BANK NATIONAL ASSOCIATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 2963—James B. Moran, Judge.
____________
ARGUED JANUARY 17, 2006—DECIDED MAY 4, 2006
____________
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Amsted Industries, Inc., a manufac-
turer of railroad and other transportation equipment, has for
many years been owned entirely by its employees (includ-
ing retired employees) through an Employee
Stock Ownership Plan (an ESOP), which is subject to ERISA.
29 U.S.C. §§ 1104(a)(2), 1107(b), (d)(6); Steinman v. Hicks, 352
F.3d 1101, 1102-03 (7th Cir. 2003); In re Merrimac Paper Co.,
420 F.3d 53, 63 (1st Cir. 2005). Employees begin receiving
stock shortly after they join the company, and over the years
2 No. 05-3417
the value of an employee’s holding can grow to a consider-
able amount. When an employee leaves Amsted’s employ,
his stock is (or rather was until recent changes in the plan
that have precipitated this litigation) redeemed in full and
at once by the company for cash. The plaintiffs, representing
a class consisting of all participants in the ESOP, charge that
the ESOP’s trustee, LaSalle National Bank, made an impru-
dent valuation of the company’s stock, causing heavy losses
to the class members. The district court granted summary
judgment for LaSalle.
A critical stage in the administration of an ESOP of a
company whose shares are not traded is establishing the
price at which an employee who leaves the company
can redeem his shares. If the price is set too low, em-
ployees who leave will feel short-changed. If it is set too
high it may precipitate so many departures that it en-
dangers the firm’s solvency. Setting a price for redemp-
tions is difficult because by definition there is no market
valuation of stock that isn’t traded.
The price of Amsted’s stock was reset every year. Before
the recent amendments to the ESOP, it was set on Septem-
ber 30 but an employee had until June 30 of the follow-
ing year to decide whether by quitting the company to
redeem his stock at the September 30 value. Thus a drop in
the stock’s value between September 30 and the following
June 30 would increase the departure rate because em-
ployees who didn’t expect the value to recover could
truncate their loss by redeeming their stock at the higher
September value.
In August 1999 Amsted bought Varlen Corporation, a
manufacturer of trucking equipment, for some $800 million.
This was a big acquisition for Amsted; Amsted’s value on
the eve of the acquisition probably did not exceed the
No. 05-3417 3
purchase price of Varlen. There is no contention that
Amsted overpaid, however; it outbid the next highest
bidder by only fifty cents a share.
Amsted financed the acquisition by taking out a $1 billion
unsecured bank loan, which replaced its previous debt;
so after completing the acquisition it had a $200 million
unused line of credit ($1 billion minus $800 million). We
do not know how much additional credit it could have
obtained, and on what terms, but apparently not much,
as we shall see. What is certain is that the acquisition
increased Amsted’s debt-equity ratio, and hence the risk
to its employee-shareholders, assuming they could not
offset it by altering their stock portfolios; presumably
most of the employees had the bulk of their financial assets
in the ESOP.
On September 30, 1999, a month after the acquisition,
a consulting firm (Duff & Phelps) hired by LaSalle
valued Amsted’s stock at $184 a share. This was 32 percent
higher than the previous year’s valuation. The Dow Jones
index of 30 industrials had increased by that amount,
though we have no reason to think that Duff & Phelps
was merely assuming that Amsted was about as good a
performer as the average company in the index. (More on
valuation later.) LaSalle accepted Duff & Phelps’s valuation.
Given Amsted’s limited unused credit line, it was impor-
tant that its shares not be valued at a price that would
precipitate so many employee departures, and therefore so
many redemptions, as to create financial problems for the
company. In recent years (1996 to 1999), the annual percent-
age of the workforce that had left the company, weighted by
stock ownership, had, as shown in the following chart,
varied in a tight band between about 9 and 11 percent. But
4 No. 05-3417
back in 1990 it had hit 13 percent, more than double the rate
the year before.
40
% of Shares 30
Outstanding
20
Tendered for
Purchase 10
0
85
88
91
94
97
00
19
19
19
19
19
20
Year
If the percentage of redemptions in 2000 had turned out
to be 10 percent, the average for the previous four years, the
cost of redemptions would have been only about
$100 million. Amsted could easily have financed that
expense by borrowing against its unused line of bank credit,
or alternatively out of its cash flow. Amsted had earned net
income of $56 million in 1999; in addition it made annual
cash contributions, equal to 10 percent of each employee’s
compensation, to the ESOP in lieu of contributing to a
pension plan for its employees, though the record does
not indicate the total amount of those annual contribu-
tions and diverting them to redemptions would hurt cur-
rent employees.
The redemption rate in 2000 turned out to be not 10
percent but 32 percent. Redeeming cost the company
$330 million, creating liquidity problems that caused
Amsted to amend the ESOP to eliminate departing em-
ployees’ right to a lump-sum distribution (their shares
would henceforth be redeemed over four years), to defer
eligibility for distributions generally to five years after the
employee left the company, and to make other changes
No. 05-3417 5
in the plan—all adverse to the members of the plaintiff class.
Amsted’s shares were revalued that year at only $90 and the
next year at $44.
The reason for the surge in departures and therefore
redemptions is not entirely clear. But the Dow Jones Indus-
trial average, although it actually rose by 2 percent between
September 30, 1999, the date on which Amsted’s stock
was valued, and June 30, 2000, the date on which employees
could by quitting redeem their shares at the price that had
been set on September 30, fell 12 percent between January
1, 2000, and June 30, 2000. That may have made
the employees skittish about continuing to own Amsted
stock. Of course Amsted might do better than the companies
in the Dow Jones index—but it might also do worse.
In addition, many workers were reaching an age at
which they would want to retire, and many of them had
accumulated substantial amounts of Amsted stock through
the ESOP. Of Amsted’s 3,000 employee-shareholders, 735
owned in the aggregate $560 million worth of Amsted stock
at the $184 redemption price set in September of 1999. And
the 800 employee-shareholders who were at least 55 years
old or had more than 30 years of service with the company
had amassed Amsted stock worth almost $300 million. The
average annual number of redemptions in previous years
had been 485, so it is easy to see how a surge in departures
could quickly swallow up the $200 million unused line of
credit plus other available cash; apparently Amsted was not
able to cover the expense of the redemptions with additional
borrowing.
Assuming that Amsted stock was the principal financial
asset of most employees, they were underdiversified and
therefore at risk of experiencing a large decline in their
overall wealth if the price of the stock fell. One cannot
infer from the concentration of their wealth in the stock of
6 No. 05-3417
one company that they liked risk and were therefore indiffer-
ent to the risk imposed on them by the lack of diversifica-
tion. Remember that Amsted contributed an amount equal
to 10 percent of the employee’s salary to the purchase of
stock in the ESOP; there is no suggestion that an employee
could have persuaded Amsted to give the money to him
instead so that he could purchase a diversified portfolio.
Nor is it suggested that risk-averse workers shy away from
working for companies that have ESOPs.
For the reasons just indicated, the Amsted ESOP was
ripe for a “run” in 2000; and the more employees who left,
redeeming their shares for cash at $184 a share, the
more acute Amsted’s liquidity problem would be and
therefore the greater the incentive of other employees to
leave before the house caved in. The question is whether
LaSalle, as the ESOP’s trustee, behaved imprudently in the
face of this risk.
The duty of an ERISA trustee to behave prudently
in managing the trust’s assets, which in this case con-
sisted of the assets of the ESOP, is fundamental. This is true
even though, by the very nature of an ESOP, the trustee
does not have a general duty to diversify, though such a
duty can arise in special circumstances. Steinman v. Hicks,
supra, 352 F.3d at 1106. The duty to diversify is an essen-
tial element of the ordinary trustee’s duty of prudence,
given the risk aversion of trust beneficiaries, but the absence
of any general such duty from the ESOP setting does not
eliminate the trustee’s duty of prudence. If anything, it
demands an even more watchful eye, diversification not
being in the picture to buffer the risk to the beneficiaries
should the company encounter adversity. There is a sense in
which, because of risk aversion, an ESOP is imprudent per
se, though legally authorized. This built-in “imprudence”
No. 05-3417 7
(for which the trustee is of course not culpable) requires him
to be especially careful to do nothing to increase the risk
faced by the participants still further.
Before proceeding further we must consider whether
our review of the trustee’s decisions in administering an
ESOP, particularly the choice of a redemption price,
should be deferential or plenary.
In general, judicial review of the decisions of an ERISA
trustee as of other trustees is deferential unless there is a
conflict of interest, which there is not here. Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 111-15 (1989); Rud v. Liberty
Life Assurance Co., 438 F.3d 772, 775-76 (7th Cir. 2006). And
an ESOP trustee is an ERISA trustee. Yet in Eyler v. Commis-
sioner, 88 F.3d 445, 454-56 (7th Cir. 1996), we conducted a
plenary review of the performance of the decisions of an
ESOP trustee (though without discussion of the standard of
review), as did the Ninth and Fifth Circuits in Howard v.
Shay, 100 F.3d 1484, 1488-89 (9th Cir. 1996), and Donovan v.
Cunningham, 716 F.2d 1455, 1473-74 (5th Cir. 1983), respec-
tively, though other courts have in similar cases applied the
deferential standard of abuse of discretion. Kuper v. Iovenko,
66 F.3d 1447, 1458-60 (6th Cir. 1995); Moench v. Robertson, 62
F.3d 553, 571 (3d Cir. 1995); Ershick v. United Missouri Bank,
N.A., 948 F.2d 660, 666-67 (10th Cir. 1991).
It may seem odd to speak of standards of judicial re-
view in the present context. Such standards are usually
meant to guide an appellate tribunal asked to overturn the
rulings or findings of a trial-level adjudicator, such as a
judge or jury or administrative law judge, or (coming
closer to home) an ERISA trustee asked to determine a
beneficiary’s entitlement under a welfare plan. LaSalle
was doing nothing analogous to adjudication in fixing a
$184 redemption price of Amsted shares in 1999. Still,
8 No. 05-3417
there are rules as to how much deference a court should
give nonadjudicators, a pertinent example being the
business-judgment rule, which decrees a light hand for a
court asked to invalidate a business decision. E.g., Omnicare,
Inc. v. NCS Healthcare, Inc., 818 A.2d 914, 927-28 (Del. 2003).
Whether a valuation is prudent seems rather similar in
character to whether a business decision is sensible. They
are both judgmental.
But there is a difference. A trustee is not an entrepreneur.
His services are more like those of a professional. He is
supposed to be careful rather than bold. And care is some-
thing that courts are more comfortable in appraising than
entrepreneurial panache, as when they decide that a driver
was negligent because he failed to exercise due care and as
a result injured a pedestrian. It is natural for a court to
consider whether a trustee was prudent rather than whether
he abused his discretion.
In arguing that LaSalle placed the ESOP’s participants
at unnecessary risk, the plaintiffs emphasize LaSalle’s
seeming failure to consider the effect on the liquidity of
the ESOP’s assets of Amsted’s having taken on so much
debt in order to buy Varlen. It was obvious that if redemp-
tions exceeded $300 million, Amsted might encounter a
serious liquidity problem that would force it to change
the ESOP to the detriment of the remaining employees.
There is no evidence that LaSalle thought about this possi-
bility, let alone that it tried to reduce the risk by lowering
the redemption price, which by dampening the redemption
rate would reduce the threat to liquidity. LaSalle appears to
have been confident that the future would be just like the
past. That may have been the best prediction, but it may
have been incautious for LaSalle to act on it. The best
prediction may be that one’s house will not burn down,
No. 05-3417 9
but that doesn’t means that it’s prudent to allow one’s fire-
insurance policy to lapse.
LaSalle had, it is true, a balancing act to perform. For if it
slashed the redemption price, departing employees
would have cause for complaint and LaSalle might find
itself sued, just as it has been, only by another set of plain-
tiffs. We must not seat ESOP trustees on a razor’s edge. We
agree therefore with those courts that review the ESOP
trustee’s balancing decision deferentially. Caterino v. Barry,
8 F.3d 878, 883 (1st Cir. 1993); Edwards v. Wilkes-Barre
Publishing Co. Pension Trust, 757 F.2d 52, 56-57 (3d Cir. 1985);
Foltz v. U.S. News & World Report, Inc., 865 F.2d 364, 374
(D.C. Cir. 1989); Northeast Dept. ILGWU Health &
Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund,
764 F.2d 147, 162-63 (3d Cir. 1985); Ganton Technologies, Inc.
v. National Industrial Group Pension Plan, 76 F.3d 462, 466-67
(2d Cir. 1996). Even if, as we assumed in Eyler, the general
standard of review of an ESOP’s decisions for prudence is
plenary, a decision that involves a balancing of competing
interests under conditions of uncertainty requires an
exercise of discretion, and the standard of judicial review of
discretionary judgments is abuse of discretion.
But a discretionary judgment cannot be upheld when
discretion has not been exercised. United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); Miami Nation
of Indians of Indiana, Inc. v. U.S. Dept. of Interior, 255 F.3d 342,
350 (7th Cir. 2001). We cannot find in the record as now
constituted (a significant qualification, since the case is
before us as a result of a grant of summary judgment) any
indication that LaSalle considered how best to balance the
interests of the various participants in the ESOP in the novel
circumstances created by Amsted’s acquisition of Varlen.
LaSalle acted as if nothing had changed, without (so far as
10 No. 05-3417
appears) attempting to determine the consequences of the
acquisition for the risk borne by the ESOP’s participants. A
trustee must discharge his duties “with the care, skill,
prudence, and diligence under the circumstances then prevail-
ing that a prudent man acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise
of a like character and with like aims.” 29 U.S.C. §
1104(a)(1)(B) (emphasis added); see also Moench v. Robertson,
supra, 62 F.3d at 572-73. A trustee who simply ignores
changed circumstances that have increased the risk of loss
to the trust’s beneficiaries is imprudent. Whether that is an
accurate characterization of LaSalle’s conduct is a critical
issue requiring exploration by the district court.
Should that issue be resolved in LaSalle’s favor, the
court will have to consider whether LaSalle, although
exercising discretion, abused it. One way to pose the
question—we do not say the only way—is to ask whether it
was unreasonable for LaSalle, in the circumstances that
confronted it, to fail to apply a “marketability discount” to
the redemption price.
We do not know how Duff & Phelps arrived at the
$184 figure for the value of Amsted stock on September 30,
1999. A likely possibility is that it computed the average
price-earnings ratio of companies that are in businesses
similar to Amsted’s but the stock of which is publicly
traded, and that it then multiplied Amsted’s earnings by
that ratio and finally that it adjusted the ratio (and hence the
valuation of Amsted’s stock) on the basis of factors that
distinguish Amsted from the average firm in the compari-
son group. See generally Daniel Bayston, “Valuation of
Closely Held Companies,” Duff & Phelps, LLC,
http://www.duffandphelps.com/3_0_index.htm?3_3_1_c
ontent_arc, visited Apr. 7, 2006. One of those factors was the
relative illiquidity of Amsted stock.
No. 05-3417 11
The less marketable a property is, the lower its market
value; shares in closed-end mutual funds typically trade
at prices lower than the prices of the stocks held by the
funds because the mutual-fund investor cannot sell his
share of the stocks in the mutual fund’s portfolio other
than by selling shares of the fund. A participant in an ESOP
is in a parallel position: he can sell his shares of his em-
ployer’s stock only by quitting his job. And the ESOP could
always be changed by Amsted—ultimately it was—to limit
redemptions in the event of a run, thus further reducing the
liquidity of the participant’s investment. The average person
would therefore prefer to own shares in a publicly traded
company than in Amsted (if they were priced the same)
even if the two companies had identical cash flows and risk
profiles. And so they wouldn’t be priced the same. By
increasing the probability of a run, the Varlen acquisition
increased the probability that rights of redemption by
Amsted’s employee-shareholders would be fur-
ther restricted, and so the acquisition created a further threat
to liquidity.
There are techniques for calculating a marketability, or
illiquidity, discount, see Z. Christopher Mercer, “A Primer
on the Quantitative Marketability Discount Model,” CPA
Journal, July 2003, www.nysscpa.org/cpajournal/2003/
0703/dept/d076603.htm, visited Apr. 6, 2006, but we
shall not speculate on what they might have yielded if
applied to Amsted, or on how far a trustee can deviate from
them before he can be adjudged imprudent. These are issues
for exploration on remand if it is determined that LaSalle
did not fail to exercise discretion.
REVERSED AND REMANDED.
12 No. 05-3417
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-06 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2747220/ | STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia, October 30, 2014
Plaintiff Below, Respondent released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 13-1122 (Cabell County 09-F-023)
Robert Frazier,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Robert Frazier, by counsel, Crystal L. Walden, appeals the October 15, 2013,
Order of the Circuit Court of Cabell County sentencing him to serve forty years in the
penitentiary following his second degree murder conviction. The State, by counsel, Julie A.
Warren, Assistant Attorney General, filed a response.
This Court has considered the parties’ briefs, oral arguments, and the appendix record on
appeal. We find no substantial question of law and a memorandum decision is appropriate under
Rule 21 of the West Virginia Rules of Appellate Procedure. For the reasons expressed below, the
decision of the trial court is affirmed, in part, and vacated, in part.
Factual and Procedural History
On August 25, 2008, petitioner shot his girlfriend, fifty-three-year-old Kathy Smith, in
the head with a 12 gauge shotgun following a domestic dispute. This shot was instantaneously
fatal. Petitioner was charged with first degree murder. Following a jury trial in 2010, petitioner
was convicted of the lesser included offense of second degree murder. The trial court sentenced
petitioner to forty years imprisonment. Petitioner appealed, and this Court reversed the
conviction and granted a new trial on the basis that petitioner’s rights under the Confrontation
Clause found in the Sixth Amendment to the United States Constitution and article III section 14
of the West Virginia Constitution had been violated.1
In September of 2013, petitioner was tried again for the murder of Ms. Smith.2
Throughout all of the proceedings, petitioner maintained that Ms. Smith’s death was an accident.
In the second trial, he testified that Ms. Smith pointed the shotgun at him during an argument and
1
See State v. Frazier, 229 W.Va. 724, 731, 735 S.E.2d 727, 734 (2012) (finding trial
court committed reversible error in allowing James Kaplan, M.D., then Chief Medical Examiner,
to testify to autopsy report completed by different medical examiner, Robert Belding, M.D., who
did not testify at trial).
2
The State called Dr. Belding to testify in petitioner’s second trial.
1
was killed accidentally when the shotgun discharged while the two struggled. Petitioner called a
forensics expert as a witness, who opined that petitioner’s explanation of the fatal shot to Ms.
Smith was plausible even though the State’s expert found no gunshot residue on Ms. Smith’s
hands.3
The State presented the testimony of Joshua Jackson, an acquaintance of petitioner, who
was in the house at the time of the shooting. Mr. Jackson testified that during the argument
petitioner grabbed the shotgun, said “I will f*cking show you, B*tch,” and followed Ms. Smith
into the bedroom. Mr. Jackson then heard a gunshot. Mr. Jackson testified that after the gunshot,
petitioner climbed out of a window to escape with blood on his arms and shirt.
After the shooting, petitioner went to his sister’s house to call his mother in California.
Petitioner told his mother he “needed to get the f*ck out of town.” The State also introduced
petitioner’s statement to law enforcement wherein he initially lied by stating that Mr. Jackson
killed Ms. Smith. Petitioner eventually told authorities that the shooting was accidental. When
asked why he did not call police or emergency personnel, petitioner replied, “I’m a f*cking dope
dealer.”
At the outset of the second trial, before jury selection, the trial court informed the parties
that the State could present its case for first degree murder with the understanding that petitioner
could not be convicted or sentenced accordingly. Petitioner objected and contended the second
degree murder conviction in the initial trial amounted to an acquittal of first degree murder, and
retrial for that offense violated his constitutional rights under the State and federal double
jeopardy clause. W.Va. Const. art. 3, § 5, U.S. Const. Amend. V. The trial court rejected
petitioner’s argument and relied upon the procedure this Court set forth in syllabus point three of
State v. Cobb, 166 W.Va. 65, 272 S.E.2d 467 (1980):
When a new trial is granted upon appeal, a defendant in the new trial who
was originally convicted of voluntary manslaughter cannot be convicted of a more
serious degree of homicide or sentenced to a harsher penalty than he received at
the original trial; however, proper procedure upon retrial is to submit the case to
the jury under proper instructions for every degree of homicide which the
evidence supports, and if the jury returns a verdict in the second trial for an
offense greater than that returned in the first trial, the trial court should then enter
judgment for the offense for which the first conviction was obtained.
See also State v. Young, 173 W.Va. 1, 7, 311 S.E.2d 118, 124 (1983) (holding trial court’s
imposition of sentence pursuant to jury verdict of first degree murder rendered at retrial, rather
than pursuant to verdict of second degree murder rendered at original trial, constituted plain error
and remanding for resentencing).
The State presented the case to the jury as if petitioner could be convicted of first degree
murder. In her opening statement, the prosecutor stated that “at the close of this evidence the
3
There was also no gunshot residue found on petitioner’s hands, but he had changed
clothes and washed the blood from his arms and hands before authorities apprehended him.
2
State will ask you to find the Defendant guilty of First Degree Murder for the premeditated, the
deliberate, intentional, willful, and malicious killing of Kathy Gail Smith.” Further, in closing
statement, the prosecutor again referenced premeditation and asked the jury “to come back with
a verdict of guilty of First Degree Murder.” The trial court instructed the jury on the elements of
first degree murder, second degree murder, voluntary manslaughter, and involuntary
manslaughter. On the verdict form, the jury could choose from any of these offenses or find
petitioner not guilty as charged.
On September 20, 2013, the jury returned its verdict finding petitioner guilty of second
degree murder. Thereafter, the State submitted an interrogatory to the trial court by which the
jury could find that the crime was committed with the use of a firearm under West Virginia Code
§ 62-12-13 (2014). Petitioner objected to this interrogatory because the State did not seek this
determination at the first trial. The trial court overruled this objection and stated the firearm
determination did not increase the sentence improperly but merely affected petitioner’s eligibility
for parole. The jury answered this interrogatory in the affirmative. Thereafter, the trial court
entered a “Jury Verdict Order” on September 30, 2013.
At the sentencing hearing, the trial court stated petitioner showed a complete lack of
remorse at both murder trials. On October 15, 2013, the trial court sentenced petitioner to forty
years imprisonment, with credit for time served.4 This is the maximum penalty for second degree
murder. See W.Va. Code § 61-2-3 (2014). It is from this conviction and sentence that petitioner
now appeals.
Standard of Review
On appeal, petitioner raises two assignments of error. Petitioner alleges the trial court
violated his rights under the double jeopardy clause when it allowed the State to: 1) argue that
petitioner was guilty of first degree murder; and 2) seek a determination that petitioner
committed the crime with the use of a firearm. Petitioner’s double jeopardy claims are reviewed
de novo. Syl. Pt. 1, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).
Discussion
Petitioner’s primary submission is that he was forced to defend against a first degree
murder charge for which he was acquitted at the first trial. The double jeopardy clause of the
West Virginia Constitution provides, in part: “No person shall . . . be twice put in jeopardy of life
or liberty for the same offence.” W.Va. Const. art. 3, § 5.5 The United States Supreme Court has
4
The sentencing order does not reference the jury interrogatory pertaining to the firearm
enhancement.
5
The Fifth Amendment to the United States Constitution is nearly identical: “[N]or shall
any person be subject for the same offense to be twice put in jeopardy of life and limb[.]” The
scope of the Double Jeopardy Clause of the Fifth Amendment is at least coextensive with that of
the double jeopardy clause in the West Virginia Constitution. State v. Frazier, 162 W.Va. 602,
625 n.16, 252 S.E.2d 39, 52 n.16 (1979).
3
held that the double jeopardy “prohibition is not against being twice punished, but against being
twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896).6 In Green v. United
States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against
‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of
trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis
added). In syllabus point two of State v. Clayton, 173 W.Va. 414, 317 S.E.2d 499 (1984), this
Court held: “Our State and federal double jeopardy clauses prohibit retrial of a defendant on any
charge for which he has received a judgment of acquittal or a court’s determination that there
was insufficient evidence to prove that charge at his first trial.”
Petitioner maintains this case is akin to Price v. Georgia, 398 U.S. 323 (1970), where the
defendant was tried for first degree murder and convicted of voluntary manslaughter. That
conviction was reversed, and over counsel’s objection, Price was retried for first degree murder.
In the second trial, Price was convicted of voluntary manslaughter again. On appeal, the United
States Supreme Court reversed and held that although Price was convicted of the lesser included
offense, “the risk of conviction on the greater charge was the same in both cases and the Double
Jeopardy Clause of the Fifth Amendment is written in terms of the potential or risk of trial and
conviction, not punishment.” Id. at 329. The Supreme Court reasoned there was no way to
discount how the instructions on first degree murder impacted the jury’s deliberations. Id. at 331;
see also Blueford v. Arkansas, 132 S. Ct. 2044, 2052 (2012) (discussing Green and Price and
holding double jeopardy clause does not bar second trial if first ended in mistrial).
Similarly, petitioner supposes the mere existence of the first degree murder charge may
have kept the jurors from thoroughly considering his accidental shooting defense. Petitioner
ultimately asserts this Court should overturn syllabus point three of Cobb because it cannot be
reconciled with Price and Green. We disagree.
The flaw in petitioner’s argument is the fact that he was never in jeopardy of a first
degree murder conviction at the second trial. This crucial difference distinguishes Price and
Green. “It is axiomatic that ‘an accused must suffer jeopardy before he can suffer double
jeopardy.’” Sears, 196 W.Va. at 330, 468 S.E.2d at 330 (quoting Serfass v. United States, 420
U.S. 377, 393 (1975)). The decisions in both Price and Green turn on the fact that, at their
respective retrials, both defendants were actually at risk of being convicted of the same charge
for which they were previously acquitted. Therefore, petitioner’s reliance on Price and Green is
misplaced here because the trial court instructed both parties that, despite the fact the jury would
be instructed on first degree murder, if the jury found petitioner guilty of first degree murder, the
trial court would enter an order for a second degree murder conviction. Therefore, we reject
petitioner’s double jeopardy argument because he was never at risk of being convicted of first
degree murder at the second trial. Stated succinctly, under the double jeopardy clause the State
was prohibited from subjecting petitioner to the hazards of trial and possible conviction for first
6
West Virginia Code § 61-11-13 (2014) is consistent with Ball. The statute provides that
“[a] person acquitted by the jury upon the facts and merits on a former trial may plead such
acquittal in bar of a second prosecution for the same offense, notwithstanding any defect in the
form or substance of the indictment or accusation on which he was acquitted.”
4
degree murder more than once; syllabus point three of Cobb removes that possibility by directing
the trial court to enter judgment for the lesser offense. 166 W.Va. 65, 272 S.E.2d 467.
We find support for our holding in Morris v. Mathews, 475 U.S. 237 (1986), where the
United States Supreme Court stated that Price “did not impose an automatic retrial rule
whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included
offense.” Id. at 245.7 This Court is unpersuaded by petitioner’s attempt to set aside the entire
conviction and have yet another trial, “particularly since one of the purposes of the Double
Jeopardy Clause is to promote finality by avoiding multiple trials for the same offense.” Id. at
250 (Blackmun, J., concurring). Upon careful review of the record, we find petitioner’s
conviction was not influenced by the prosecutor’s comments regarding first degree murder. We
also find no prejudicial error because the evidence offered by the State would have remained the
same. The intent to kill is a required element of both first and second degree murder, but the
distinguishing feature for first degree murder is the existence of premeditation and deliberation.
State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).
Petitioner’s remaining assignment of error is that the trial court violated the double
jeopardy clause by allowing a firearm determination at the second trial when the State did not
seek this finding in the first trial. The State concedes error on this point and we agree. In Young,
this Court held that “upon a defendant’s conviction at retrial following prosecution of a
successful appeal, imposition by the sentencing court of an increased sentence violates due
process and the original sentence must act as a ceiling above which no additional penalty is
permitted.” 173 W.Va. at 6, 311 S.E.2d at 123-4 (citing State v. Eden, 163 W.Va. 370, 384, 256
S.E.2d 868, 876 (1979)). The jury’s finding that petitioner used a firearm in the commission of
this offense under West Virginia Code § 62-12-13 effectively increased petitioner’s sentence; he
must serve one-third of it before becoming eligible for parole, instead of the usual one-fourth.
See W.Va. Code 62-12-13(b)(1)(A). “Because parole is a means of shortening a sentence, the
restriction thereof necessarily operates as a form of punishment.” Sears, 196 W.Va. at 77 n.13,
468 S.E.2d at 330 n.13. Therefore, we find the firearm determination added three years and four
months to petitioner’s prison sentence improperly on retrial. To remedy this error on appeal, this
7
Unlike Morris, however, we find no double jeopardy violation in this case.
Nevertheless, we find the decision remains relevant to our analysis of Cobb. In Morris, the
Supreme Court held: (1) the proper remedy for a concededly jeopardy-barred conviction for
aggravated murder was to reduce the conviction to murder that was not jeopardy-barred; and (2)
the burden then shifts to defendant to demonstrate a reasonable probability that he would not
have been convicted of the non-jeopardy-barred offense absent the presence of the jeopardy-
barred offense. 475 U.S. at 247. Assuming, arguendo, the jury found petitioner guilty of first
degree murder at the second trial, the appropriate remedy under Morris would be for the trial
court to follow the procedure outlined in syllabus point three of Cobb and reduce the conviction
to second degree murder. The burden would then shift to petitioner to show that, but for the
improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would
have been different. Based on the appendix record before this Court, we find no evidence of
prejudice in this hypothetical scenario because the evidence offered by the State would have
remained the same.
5
Court hereby vacates the September 30, 2013, “Jury Verdict Order” insofar as it finds petitioner
committed the crime with the use of a firearm.
Conclusion
For the foregoing reasons, we affirm the October 15, 2013, order of the Circuit Court of
Cabell County entering judgment against petitioner for second degree murder and imposing the
statutory sentence of forty years imprisonment. We further vacate the September 30, 2013, “Jury
Verdict Order” insofar as it finds petitioner committed the crime with the use of a firearm.
Affirmed, in part,
and vacated, in part.
ISSUED: October 30, 2014
CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
6
No. 13-1122 - State of West Virginia v. Robert Frazier
Davis, C.J., dissenting; joined by Benjamin, J.:
Let me be clear at the outset. The majority opinion has trammeled the
Double Jeopardy Clause and has blatantly rejected the United States Supreme Court
decision in Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). In
this proceeding, Mr. Frazier was prosecuted for first degree murder after being acquitted
of that charge in an earlier proceeding. In the prior proceeding, this Court reversed Mr.
Frazier’s conviction for second degree murder and remanded the case for a new trial on
second degree murder. See State v. Frazier, 229 W. Va. 724, 735 S.E.2d 727 (2012).
The State chose to ignore the limitations of the remand and prosecuted Mr. Frazier for
first degree murder. Although the jury returned a verdict convicting Mr. Frazier of
second degree murder, and the trial court indicated it would not impose a first degree
murder conviction if that verdict was returned by the jury, Mr. Frazier was still
prejudiced by being tried on a theory of first degree murder. The majority opinion has
ignored this patent violation of the Double Jeopardy Clause and affirmed Mr. Frazier’s
conviction. For the reasons set out below, I dissent.
7
The Majority Opinion Demonstrates a Gross Misunderstanding Of, Or an
Appalling Disregard For, the Double Jeopardy Clause, and Ignores Clear and
Binding Precedent Handed down by the United States Supreme Court in Price v.
Georgia
Following a brief discussion of general principles pertaining to the Double
Jeopardy Clause, and a review of other lines of decisions by the United States Supreme
Court that support granting Mr. Frazier a new trial, I will demonstrate how the majority
has utterly failed to apply binding precedent by the United States Supreme Court that is
directly on point with the instant matter by refusing to follow Price v. Georgia.
1. The Double Jeopardy Clause. Before I address the merits of my dissent,
some cursory remarks about the Double Jeopardy Clause of the federal constitution are in
order. To begin, the Double Jeopardy Clause of the Fifth Amendment commands that
“[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life
or limb.” See Monge v. California, 524 U.S. 721, 727, 118 S. Ct. 2246, 2250, 141
L. Ed. 2d 615 (1998) (“The Double Jeopardy Clause of the Fifth Amendment, applicable
to the States through the Fourteenth Amendment, provides: ‘[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or limb.’”). As a general
matter, “[t]he Double Jeopardy Clause protects against a second prosecution for the same
offense after acquittal, a second prosecution for the same offense after conviction, and
multiple punishments for the same offense.” Department of Revenue of Montana v.
Kurth Ranch, 511 U.S. 767, 769 n.1, 114 S. Ct. 1937, 1941 n.1, 128 L. Ed. 2d 767
8
(1994). Under the Double Jeopardy Clause, “once a defendant is placed in jeopardy for
an offense, and jeopardy terminates with respect to that offense, the defendant may
neither be tried nor punished a second time for the same offense.” Sattazahn v.
Pennsylvania, 537 U.S. 101, 106, 123 S. Ct. 732, 736-37, 154 L. Ed. 2d 588 (2003).
“The goal of the Double Jeopardy Clause [is] to prevent against a second prosecution for
the same offense after acquittal.” Price v. Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848,
1853, 155 L. Ed. 2d 877 (2003). The United States Supreme Court has “defined an
acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish
criminal liability for an offense.” Evans v. Michigan, ___ U.S. ___, 133 S. Ct. 1069,
1074-75, 185 L. Ed. 2d 124 (2013). This includes an “implied acquittal which results
from a verdict convicting a defendant on lesser included offenses rendered by a jury
charged to consider both greater and lesser included offenses.” Ohio v. Johnson, 467
U.S. 493, 502, 104 S. Ct. 2536, 2542, 81 L. Ed. 2d 425 (1984). The decision in Evans
also noted that, even “[a] mistaken acquittal is an acquittal[.]” Evans, ___ U.S. ___, 133
S. Ct. at 1074. Because an implied acquittal carries the same constitutional weight as an
actual acquittal, “the Double Jeopardy Clause precludes the Government from relitigating
any issue that was necessarily decided by a jury’s [implied or actual] acquittal in a prior
trial.” Yeager v. United States, 557 U.S. 110, 119, 129 S. Ct. 2360, 2366, 174 L. Ed. 2d
78 (2009).
2. United States Supreme Court Cases That Generally Support
Awarding Mr. Frazier a New Trial. As outlined below, two lines of Double Jeopardy
9
Clause cases by the United States Supreme Court require that Mr. Frazier be awarded a
new trial.
To begin, in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d
469 (1970), the United States Supreme Court applied the Double Jeopardy Clause to the
relitigation of an issue. In doing so, the Court adopted collateral estoppel or issue
preclusion,1 as part of the Double Jeopardy Clause protections. Ashe involved six victims
who were simultaneously robbed while playing poker. Separate trials were scheduled for
each robbery victim. In the first case tried, the defendant was acquitted of being present
during the robbery. Consequently, the defendant argued that he could not be prosecuted
for robbing any of the remaining five victims in subsequent trials. This matter was
presented to the Supreme Court on the question of whether the defendant could be
prosecuted again on the issue of his being present at the robbery. To resolve this
question, the Court had to decide whether the doctrine of issue preclusion was part of the
Double Jeopardy Clause. The Court held in Ashe that issue preclusion “means simply
that when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future
lawsuit.” Ashe, 397 U.S. at 443, 90 S. Ct. at 1194. Thus, the Supreme Court decided that
issue preclusion was part of the Double Jeopardy Clause. The Ashe opinion noted that
incorporation of issue preclusion as part of the Double Jeopardy Clause means that “its
1
I will use the term “issue preclusion” to refer to this concept.
10
applicability in a particular case is no longer a matter to be left for state court
determination within the broad bounds of ‘fundamental fairness,’ but a matter of
constitutional fact[.]” Ashe, 397 U.S. at 442-43, 90 S. Ct. at 1193-94. See also Bobby v.
Bies, 556 U.S. 825, 832, 129 S. Ct. 2145, 2151, 173 L. Ed. 2d 1173 (2009) (“the doctrine
of issue preclusion is embodied in the Fifth Amendment guarantee against double
jeopardy.” (internal quotations and citation omitted)). In its application of constitutional
issue preclusion, the Ashe opinion held:
After the first jury had acquitted the petitioner of robbing [victim]
Knight, Missouri could certainly not have brought him to trial again
upon that charge. Once a jury had determined upon conflicting
testimony that there was at least a reasonable doubt that the
petitioner was one of the robbers, the State could not present the
same or different identification evidence in a second prosecution for
the robbery of [victim] Knight in the hope that a different jury might
find that evidence more convincing. The situation is constitutionally
no different here, even though the second trial related to another
victim of the same robbery. For the name of the victim, in the
circumstances of this case, had no bearing whatever upon the issue
of whether the petitioner was one of the robbers.
Ashe, 397 U.S. at 446, 90 S. Ct. at 1195-96.
11
The application of constitutional issue preclusion recognized in Ashe is a
grounds for granting the defendant a new trial in the instant case. In the instant
proceeding, the jury determined by its verdict that Mr. Frazier did not commit “willful,
deliberate and premeditated” homicide.2 Under Ashe, constitutional issue preclusion
prevents relitigation of the issue of “willful, deliberate and premeditated” homicide. In
other words, the State could not retry the issue of whether Mr. Frazier committed a
homicide with the mens rea of “willful, deliberate and premeditated.” That issue, like the
issue in Ashe, was resolved against the State in the first trial.
In addition to Ashe, a second line of Supreme Court decisions involving
imposition of the death penalty illustrate the constitutional force of a jury’s acquittal. In
Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), the
defendant was found guilty of capital murder during the guilt phase of the prosecution.
During the sentencing phase, the jury found that the State did not prove that the defendant
should receive the death penalty. Consequently, the defendant was sentenced to life in
prison. The defendant appealed his conviction and was granted a new trial. Prior to the
start of the second trial, the court determined that the State could not seek the death
penalty if the defendant was again convicted of murder. The State sought and obtained
from the Missouri Supreme Court a pretrial ruling that the State could seek the death
2
See Syl. pt. 3, State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982) (“Where there
has been an unlawful homicide by shooting and the State produces evidence that the
homicide was a result of malice or a specific intent to kill and was deliberate and
premeditated, this is sufficient to support a conviction for first degree murder.”).
12
penalty in the second trial. The defendant appealed that ruling to the United States
Supreme Court. The Supreme Court reversed and found that “the jury has already
acquitted the defendant of whatever was necessary to impose the death sentence[.]”
Bullington, 451 U.S. at 445, 101 S. Ct. at 1861 (internal quotations and citation omitted).
Consequently, “the protection afforded by the Double Jeopardy Clause . . . is available to
[a defendant], with respect to the death penalty, at his retrial.” Bullington, 451 U.S. at
446, 101 S. Ct. at 1862.3
The ruling in Bullington was applied in Arizona v. Rumsey, 467 U.S. 203,
104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984). During the sentencing phase of the capital
murder prosecution in Rumsey, the trial judge, not the jury, found that the State had failed
to establish the requirements for imposing the death penalty, and, accordingly, entered
judgment sentencing the defendant to life in prison. The Supreme Court of Arizona
concluded that the trial court had erred in its interpretation of what was required to
impose the death penalty, and, therefore, reversed and remanded for a new sentencing
proceeding. On remand, the defendant was sentenced to death. In the second appeal, the
Supreme Court of Arizona reversed the death sentence after concluding that the decision
in Bullington prohibited retrying the issue of imposition of a death sentence. The State
3
The “opinion in Bullington established a ‘narrow exception’ to the general rule that
double jeopardy principles have no application in the sentencing context.” Monge v.
California, 524 U.S. 721, 730, 118 S. Ct. 2246, 2251, 141 L. Ed. 2d 615 (1998).
13
filed an appeal with the United States Supreme Court. The Supreme Court affirmed the
Arizona high court’s decision. In doing so, the Supreme Court explained:
The double jeopardy principle relevant to respondent’s case is the
same as that invoked in Bullington: an acquittal on the merits by the
sole decisionmaker in the proceeding is final and bars retrial on the
same charge. Application of the Bullington principle renders
respondent’s death sentence a violation of the Double Jeopardy
Clause because respondent’s initial sentence of life imprisonment
was undoubtedly an acquittal on the merits of the central issue in the
proceeding–whether death was the appropriate punishment for
respondent’s offense. The trial court entered findings denying the
existence of each of the seven statutory aggravating circumstances,
and as required by state law, the court then entered judgment in
respondent’s favor on the issue of death. That judgment, based on
findings sufficient to establish legal entitlement to the life sentence,
amounts to an acquittal on the merits and, as such, bars any retrial of
the appropriateness of the death penalty.
Rumsey, 467 U.S. at 210-11, 104 S. Ct. at 2310.
In Bullington and Rumsey, prosecutors sought to have the fact finders
consider imposing the death penalty on the defendants on retrial, even though fact finders
had previously determined the prosecutors failed to meet their burden of proof with
14
respect to imposing the death penalty in the first sentencing proceedings. The Supreme
Court found that the Double Jeopardy Clause precluded such a reconsideration of the
death penalty.
This State’s equivalent to a death penalty is a conviction for first degree
murder. In the instant proceeding, the jury found that the State failed to meet its burden
of convicting the defendant of first degree murder. In this situation, as in Bullington and
Rumsey, the State could not retry the defendant for first degree murder because the jury
rejected that punishment in the first trial.
3. Price v. Georgia, Binding Precedent Requiring a New Trial.
Although I believe Ashe and Bullington/Rumsey provide clear authority for granting Mr.
Frazier a new trial, another line of cases by the Supreme Court also dictate this same
result. The facts of the instant case are squarely controlled by the decision in Price v.
Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). In Price, the defendant
was charged with murder by the state of Georgia. The case went to trial and a jury
returned a verdict of guilty to the lesser included crime of voluntary manslaughter. The
conviction was reversed on appeal because of an erroneous jury instruction and a new
trial was awarded. On remand, the prosecutor chose to retry the case as a murder
prosecution. The defendant objected and argued that he could be tried only for voluntary
manslaughter because the jury in the first case had acquitted him of murder. The trial
15
judge overruled the objection and the case was submitted to the jury on a murder charge.
The jury once again returned a verdict of voluntary manslaughter.
The defendant in Price filed an appeal of his second conviction and argued
that the Double Jeopardy Clause prevented the State from prosecuting him for murder,
because the jury had acquitted him of that charge in the first trial. In making this
argument, the defendant cited to the United States Supreme Court decision in Green v.
United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), which had held that
the Double Jeopardy Clause prevented the federal government from retrying a defendant
on a murder charge once a jury had convicted a defendant of the lesser charge of second
degree murder in the first trial. In rejecting the argument and the decision in Green, the
appellate court relied on a prior Georgia Supreme Court decision, Brantley v. State, 132
Ga. 573, 64 S.E. 676 (1909), which held:
When a person has been indicted for murder and convicted of
voluntary manslaughter, if he voluntarily seeks and obtains a
new trial, he is subject to another trial generally for the
offense charged in the indictment, and upon such trial he
cannot successfully interpose a plea of former acquittal of the
crime of murder or former jeopardy in regard thereto.
Syl., Brantley, 132 Ga. 573, 64 S.E. 676. The decision of the Georgia Supreme Court
was appealed the United States Supreme Court. Relying upon its decision in Green, the
United States Supreme Court concluded that the Double Jeopardy Clause prevented the
16
defendant from being retried on a murder charge. Therefore, the defendant was entitled
to a new trial. The United States Supreme Court, in Price, reasoned as follows:
Because the petitioner was convicted of the same crime at
both the first and second trials, and because he suffered no
greater punishment on the subsequent conviction, Georgia
submits that the second jeopardy was harmless error. . . .
We must reject this contention. The Double Jeopardy Clause,
as we have noted, is cast in terms of the risk or hazard of trial
and conviction, not of the ultimate legal consequences of the
verdict. To be charged and to be subjected to a second trial
for first-degree murder is an ordeal not to be viewed lightly.
Further, and perhaps of more importance, we cannot
determine whether or not the murder charge against
petitioner induced the jury to find him guilty of the less
serious offense of voluntary manslaughter rather than to
continue to debate his innocence.
Price, 398 U.S. at 331-32, 90 S. Ct. at 1762 (emphasis added). See also Blueford v.
Arkansas, ___ U.S. ___, 132 S. Ct. 2044, 2051-52, 182 L. Ed. 2d 937 (2012) (“In those
cases, [Price and Green], we held that the Double Jeopardy Clause is violated when a
defendant, tried for a greater offense and convicted of a lesser included offense, is later
retried for the greater offense.”).
17
Every relevant procedural aspect of Price is present in the instant case. In
both cases the defendants were prosecuted for murder, but convicted of lesser included
offenses. Both defendants were granted new trials after successful appeals. Both
defendants were prosecuted on remand for the murder charge for which they had been
previously acquitted. In the second trial, both defendants received the same conviction
that had been obtained in their first trial. Both defendants appealed their second
conviction on the ground that the Double Jeopardy Clause and precedent by the United
States Supreme Court prevented the State from retrying them for murder. On appeal,
both state appellate courts relied on state precedent to reject the decisions of the United
States Supreme Court.4 The defendant in Price was ultimately able to have the United
4
In the instant case, the majority opinion relied upon State v. Cobb, 166 W. Va. 65, 272
S.E.2d 467 (1980), in order to reject the United States Supreme Court decision in Price.
In syllabus point 3 of Cobb it was held:
When a new trial is granted upon appeal, a defendant
in the new trial who was originally convicted of voluntary
manslaughter cannot be convicted of a more serious degree of
homicide or sentenced to a harsher penalty than he received at
the original trial; however, proper procedure upon retrial is to
submit the case to the jury under proper instructions for every
degree of homicide which the evidence supports, and if the
jury returns a verdict in the second trial for an offense greater
than that returned in the first trial, the trial court should then
enter judgment for the offense for which the first conviction
was obtained.
This syllabus point not only is inconsistent with Price, but it is inconsistent with the
decisions of this Court as reflected in Syllabus point 2 of State v. Clayton, 173 W. Va.
414, 317 S.E.2d 499 (1984):
Our State and federal double jeopardy clauses prohibit retrial
of a defendant on any charge for which he has received a
judgment of acquittal or a court’s determination that there
18
States Supreme Court properly apply the law and grant him a new trial. I am hopeful that
the defendant in the instant case also will have the United States Supreme Court properly
apply the law, reverse the conviction, and grant him a new trial.
In the final analysis, except for the majority opinion in this case, courts
around the country have unanimously recognized that “under the Federal constitutional
prohibition against double jeopardy, the conviction of a lesser offense is treated as an
implied acquittal of the greater offense, and the defendant cannot be retried on the greater
offense where the conviction on the lesser offense is vacated on appeal.” Commonwealth
v. Figueroa, 9 N.E.3d 812, 830-31 (Mass. 2014). Accord Connolly v. State, 539 So. 2d
436, 443 (Ala. Crim. App. 1988); State v. Butrick, 558 P.2d 908, 912 (Ariz. 1976);
People v. Superior Court, 2 Cal. Rptr. 2d 389, 399 (1991); Ortiz v. District Court In and
For Las Animas County, 626 P.2d 642, 645 (Colo. 1981); State v. Almeda, 455 A.2d
1326, 1330 (Conn. 1983); State v. Munson, 243 A.2d 691, 692 (Del. Super. Ct. 1968);
Williams v. State, 700 S.E.2d 564, 566 (Ga. 2010); State v. Feliciano, 618 P.2d 306, 311
(Haw. 1980), superseded by statute on other grounds as recognized in State v. Kalaola,
237 P.3d 1109 (Haw. 2010); Causey v. State, 266 N.E.2d 795, 797 (Ind. 1971); Gunter v.
Commonwealth, 576 S.W.2d 518, 522 (Ky. 1978); State v. Chaplin, 286 A.2d 325, 334
(Me. 1972); Commonwealth v. Hrycenko, 630 N.E.2d 258, 263 (Mass. 1994); People v.
McPeters, 448 N.W.2d 770, 773 (Mich. Ct. App. 1989); State v. Favell, 536 S.W.2d 47,
was insufficient evidence to prove that charge at his first trial.
19
51 (Mo. Ct. App. 1976); State v. George, 527 N.W.2d 638, 643 (Neb. Ct. App.,1995);
State v. Fielder, 118 P.3d 752, 758 (N.M. Ct. App. 2005); Kitt v. Haft, 473 N.Y.S.2d 3, 4
(1984), disapproved on other grounds by People v. Boettcher, 513 N.Y.S.2d 83, 87
(1987); State v. Arnold, 392 S.E.2d 140, 150 (N.C. Ct. App. 1990); Commonwealth v.
Dooley, 310 A.2d 690, 692 (Pa. Super. Ct. 1973); Pope v. State, 509 S.W.2d 593, 595
(Tex. Crim. App. 1974); State v. Low, 192 P.3d 867, 880 (Utah 2008); State v. Linton, 93
P.3d 183, 186-87 (Wash. Ct. App. 2004).
4. Morris v. Matthews Does Not Apply. Finally, the majority opinion
has erroneously relied upon Morris v. Mathews, 475 U.S. 237, 106 S. Ct. 1032, 89 L. Ed.
2d 187 (1986), to support its rejection of the Price opinion in this case. Simply put, a
careful reading of Morris clearly shows that Morris has no application to the facts of the
instant case.
In Morris, the defendant and a co-conspirator robbed a bank in Ohio.
During their getaway, the police chased them to a farmhouse. The co-conspirator was
shot twice while inside the farmhouse. At the time of the defendant’s arrest, it was not
known how the co-conspirator had been shot. However, not long after the defendant was
arrested, a coroner issued a report indicating the co-conspirator committed suicide.
Based upon the coroner’s report, the defendant was indicted only on aggravated robbery
charges. The defendant eventually entered a guilty plea to aggravated robbery. Two
days after the defendant pled guilty to aggravated robbery, he made statements that
20
indicated he, in fact, killed the co-conspirator. According to the defendant’s statements,
the co-conspirator shot himself but did not die. However, the defendant decided to kill
the co-conspirator in order to claim that the co-conspirator kidnapped him and forced him
to take part in the robbery. Once the prosecutor learned how the co-conspirator had been
killed, the defendant was charged with aggravated murder. A jury convicted the
defendant of aggravated murder and he was sentenced to life in prison. The case was
litigated on a claim of double jeopardy several times before the state appellate courts.
Eventually, a federal court of appeals found that the Double Jeopardy Clause prevented
the defendant from being convicted of “aggravated” murder, because the conviction was
based upon conduct that involved the bank robbery–which had already been litigated
through a guilty plea. The federal court of appeals determined that the defendant was
entitled to a new trial on a charge for murder only, not aggravated murder. The United
States Supreme Court granted certiorari to determine what remedy was available to the
defendant.
The Supreme Court’s decision in Morris is distinguishable from Price.
Morris stated that Price requires a new trial whenever a defendant has been acquitted of a
greater charge, but convicted of a lesser charge, and the state nevertheless prosecutes the
defendant for the greater charge on retrial. On the other hand, the facts of Morris were
different. The opinion in Morris pointed out that “[t]he jury did not acquit [the
defendant] of the greater offense of aggravated murder, but found him guilty of that
charge and, a fortiori, of the lesser offense of murder as well.” Morris, 475 U.S. at 245,
21
106 S. Ct. at 1037. Morris held that, in this unique situation, the defendant does not have
to be given a new trial when the evidence supports a conviction for a lesser included
offense. The opinion stated that “where it is clear that the jury necessarily found that the
defendant’s conduct satisfies the elements of the lesser included offense, it would be
incongruous always to order yet another trial as a means of curing a violation of the
Double Jeopardy Clause.” Morris, 475 U.S. at 247, 106 S. Ct. at 1038.
Under Morris, an appellate court may impose a conviction for a lesser
included offense upon a defendant when a defendant has been convicted of the greater
offense in violation of the Double Jeopardy Clause. Clearly, in the instant proceeding,
Mr. Frazier was never convicted of the greater offense–he was acquitted of the greater
offense; therefore, the holding in Morris has no application.
5. Conclusion. In sum, due to the majority opinion’s reckless rejection of
well reasoned and binding Supreme Court precedent, one can only hope that Mr.
Frazier’s attorneys will bring this matter to the attention of the United States Supreme
Court. Having seen the majority’s total disregard for the United States Supreme Court’s
well-settled decisions, I am confident that the United States Supreme Court will swiftly
and deftly reverse the majority’s decision.
In view of the foregoing, I dissent. I am authorized to state that Justice
Benjamin joins me in this dissenting opinion.
22 | 01-03-2023 | 10-31-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3448145/ | Affirming.
Originally this proceeding was by Opal Porter and others against Murray Porter and others for the sale of certain real property belonging to the estate of J.E. Porter and Alice Porter, and for the payment of certain debts owing by the Porters, and a distribution of the residue of the estate after the payment of the debts among the heirs. The court directed a sale of the lands, and further adjudged that C.M. Porter, administrator of the estate of J.E. and Alice Porter, pay to Opal Porter and to the heirs of Bernice Porter Corum, the sum of $300.00 each out of the proceeds of the sale of the land before there is any other division of such proceeds; and further, that the administrator of J.E. and Alice Porter recover of the heirs and widow of Percie Porter the sum of $100.00. From that judgment this appeal is prosecuted.
Before rendition of this judgment three other suits had been instituted in addition to the original one, and all have been consolidated, the judgment styled above being entered in the consolidated action. In the Nina and Clyde Porter branch of the consolidated case an agreed judgment was entered, settling all claims, and no appeal is prosecuted from that. In another branch of the case Milam Porter, Clyde Porter and Murray Porter, three sons, claimed that they did not receive $300.00 charged to them as advancement and did not receive $200.00 from the sale of the Forgerville property. The entry of *Page 362
the agreed judgment for $370.00 settled the Clyde Porter controversy. Some other claims were also adjusted among the parties and judgment entered in the lower court.
The record shows that J.E. Porter, the father, owned several tracts of land at the time of his death. When his sons grew up to manhood and established homes of their own, he divided up a tract of bottom land and gave to each of then 25 acres, valued at $300.00. This is referred to as an advancement and has been so treated by the trial court. The daughters did not get a share in the bottom land. These tracts of land were laid off and an accurate description prepared in writing and delivered to the sons, and the sons, all except Alvis, the youngest, who was killed in the World War, took charge of his share. Alvis' part passed by deed to Milam Porter, he agreeing to pay for the extra 25 acres, and this is the $300.00 for which judgment went against him. He not only received the 25 acres intended for his youngest brother but was charged with the $300.00 which he owed for the second 25 acres. Thus Milam Porter was indebted to the estate in the sum named in the judgment. From a very careful perusal of the record we are persuaded that the trial court properly adjudged the rights of all the parties in every particular, and that the findings are sustained by the evidence, and there is no error in the judgment, for which reason it is affirmed.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128382/ | 538 U.S. 937
PORTILLOv.UNITED STATES.
No. 02-9011.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2998678/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 6, 2005
Decided January 10, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1561
ARN KETBANG, On Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals
v. No. A79-592-275
ALBERTO R. GONZALES,
Respondent.
ORDER
In 1993 an immigration judge (“IJ”) ordered Arn Ketbang deported
in absentia after he failed to appear at his deportation hearing. In 2004, Ketbang
filed a motion to reopen in which he argued that he did not receive notice to appear
at the 1993 hearing. The IJ denied the motion, and the Board of Immigration
Appeals (“BIA”) summarily affirmed. We deny Ketbang’s petition for review.
Ketbang, a citizen of Thailand, obtained a nonimmigrant work visa
authorizing him to travel to Ft. Lauderdale, Florida, and on to Guantanamo Bay,
Cuba, to work at the United States naval base for a brief period in early 1993. On
February 10, 1993, Ketbang arrived at the Detroit Metro Airport on a flight from
Tokyo, Japan. While Ketbang waited to board a connecting flight to Chicago,
immigration officials asked him why he was traveling there instead of Florida.
Ketbang admitted that, despite his visa, he was going to Chicago to live and work.
No. 05-1561 Page 2
Ketbang was arrested and personally served that same day with an Order to
Show Cause alleging that he procured his visa and entered the United States by
fraud or misrepresentation, and was deportable under former 8 U.S.C.
§ 1251(a)(1)(A) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
§ 1227(a)(1)(A)) and 8 U.S.C. § 1182(a)(6)(C)(I). He was released after providing the
contact address of “4717 North Winthrop, Chicago, Illinois, 60640,” and signing the
Order to Show Cause, which warned him of the consequences of failing to appear at
future proceedings and advising that he was required to report any address changes
to the INS district office in Chicago within five days. Ketbang used a checkbox on a
form that accompanied the Order to Show Cause to request a deportation hearing
before an IJ. The order explained that notice of his hearing would be “mailed to the
address” he provided. A Border Patrol agent signed a Certificate of Translation and
Oral Notice—a part of the Order to Show Cause—which represents that the order
“was read to the named alien in the English language, which is his/her native
language or a language that he/she understands”; Ketbang signed a Certificate of
Service on the same page indicating that he was personally served with the order.
Ketbang does not dispute that the immigration court attempted repeatedly,
and without success, to provide him notice of his deportation hearing; nor does he
dispute that the postal service attempted to deliver the hearing notices to him. On
March 10, 1993, the immigration court issued a Notice of Hearing in Deportation
Proceedings scheduling Ketbang’s hearing for April 1. That notice was sent via
certified mail and addressed to Ketbang at “4717 North Winthrop, Chicago, Illinois
60640”; it was eventually returned undelivered. When Ketbang failed to appear at
the hearing, a second notice rescheduling the hearing for June 10 was sent to the
same address. The postal service returned this notice stamped “Attempted Not
Known,” and Ketbang again failed to appear. The immigration court then sent a
third notice rescheduling the hearing for July 8. Again it was returned stamped
“Attempted Not Known,” and this time when Ketbang failed to appear the IJ
ordered him deported in absentia.
At some point after Ketbang’s arrest in Detroit, he married a United States
citizen with whom he now has a six- or seven-year-old son; the Department of
Homeland Security located Ketbang when he applied through his spouse for
permanent residency. On May 19, 2004, the Bureau of Citizenship and
Immigration Services issued a “bag and baggage” letter directing Ketbang to report
for removal on July 20. That action prompted Ketbang to move to reopen the 1993
proceedings on the basis that he never received “actual or constructive” notice of his
deportation proceedings and thus was denied due process.
Ketbang submitted an affidavit with his Motion to Reopen in which he avers
that he does not speak English “with any fluency,” and that his encounter with
immigration officials at the Detroit airport was conducted entirely in English with
No. 05-1561 Page 3
no Thai interpreter. During this “interview,” Ketbang says, a “man in a uniform”
informed him that he “would have to attend a deportation hearing in Chicago” and
gave him a “paper” that he did not understand because it was printed in English.
Ketbang explains in his affidavit that the Chicago address he provided was that of a
friend who was gone when he arrived there, and since he did not understand the
“paper,” neither did he realize that he was responsible for informing the
immigration court of his new address. The IJ denied Ketbang’s motion to reopen
without an evidentiary hearing, reasoning that Ketbang received adequate notice
because he was personally served with the Order to Show Cause, which informed
him of his responsibility to keep the immigration court apprised of his address. The
IJ also rejected Ketbang’s claim that he never understood the English-language
Order to Show Cause; the IJ explained that Ketbang “signed a Certificate of
Translation that states that the [Order to Show Cause] was read to him in English
which is a language that he understands.”
Ketbang argues on appeal that he was not afforded a reasonable opportunity
to appear at his deportation hearing because the INS failed to provide a Thai
translation of the Order to Show Cause; he is not “fluent” in English, he says, and
thus he did not have notice of his responsibility to inform the INS of any address
changes. When the BIA summarily affirms the refusal to reopen a deportation
order entered in absentia, we review the IJ’s decision directly and for abuse of
discretion. Uriostegui v. Gonzales, 415 F.3d 660, 663 (7th Cir. 2005). But whether
an immigration proceeding violated due process is a legal question that we review
de novo. Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999).
Although the statute on notice in this case has since been repealed, it still
governs Ketbang’s petition for review because he was ordered deported in absentia
prior to April 1, 1997. See 8 U.S.C. § 1101 n.(2)(a); Ursachi v. INS, 296 F.3d 592,
594 n. * (7th Cir. 2002). An in absentia deportation order may be rescinded upon a
motion filed at any time if the alien demonstrates that he or she did not receive
notice of the deportation hearing. 8 U.S.C. § 1252b(c)(3)(B) (1988 & Supp. V 1993)
(currently codified at 8 U.S.C. § 1229a(b)(5)(C)). The Immigration and
Naturalization Act (“INA”) in 1993 required that notice of a deportation hearing be
“reasonable under all the circumstances,” see id. § 1252(b)(1), repealed by Illegal
Immigration Reform and Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009, and notice satisfies due process if it is sent to the last known address provided
by the alien, see Wijerante v. INS, 961 F.2d 1344, 1346-47 (7th Cir. 1992). The INA,
however, did not require (and does not presently require) notice if the alien fails to
provide an address at which he or she can be contacted. 8 U.S.C. § 1252b
(a)(1)(F)(i)-(ii), (c)(2) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
§ 1229(a)(1)(F)(i)-(ii), (c)). Moreover, the Order to Show Cause did not have to be
printed in languages other than English and Spanish. 8 U.S.C. § 1252b(a)(3)(A),
repealed by Illegal Immigration Reform and Responsibility Act of 1996, Pub. L. No.
No. 05-1561 Page 4
104-208, 110 Stat. 3009; see Nazarova, 171 F.3d at 483 (“[T]he logical implication is
that the INS must maintain a stock of forms translated into literally all the tongues
of the human race, and then select the proper one for each potential deportee.”);
cf. In re G– Y– R–, 23 I. & N. Dec. 181, 189 (B.I.A. 2001) (stating that notice
requirements do not require that “the alien . . . understand the Notice to Appear”).
Ketbang’s argument relies entirely on the incorrect assumption that he had a
right to receive a Thai translation of the Order to Show Cause. We rejected a
similar argument in Nazarova and held that due process does not require that
notice of a deportation hearing be in any language other than English so long as the
notice “would put a reasonable recipient on notice that further inquiry is required.”
171 F.3d at 483 (rejecting petitioner’s argument that due process required the
Order to Show Cause to be printed in Russian). Although Ketbang does not address
Nazarova directly, he asserts that the Order to Show Cause failed to put him on
notice that further inquiry was required because he did not comprehend it. The
government responds by repeating the IJ’s assertion that Ketbang signed the
Certificate of Translation “indicating that he understood English and the contents
of the [Order to Show Cause].” However, both the IJ and the government
misrepresent the record. Ketbang did not sign the Certificate of Translation;
rather, he signed the Certificate of Service, which is located below the Certificate of
Translation. The Certificate of Translation is merely a representation that the
Border Patrol agent read the Order to Show Cause to Ketbang in English, a
language he “understands,” that is, the certificate does not represent that Ketbang
acknowledged understanding the order.
Even so, Ketbang nonetheless fails to demonstrate that a reasonable person
in his position would not have thought to investigate further; he knew that he lied
on his visa application, and he knew that he was arrested and subsequently served
with the Order to Show Cause because the INS discovered his lie. Moreover,
Ketbang even acknowledged in his affidavit (11 years after the fact) that the “man
in a uniform” in Detroit told him that he had to “attend a deportation hearing in
Chicago”—a clear indication that he would, at the very least, have some sort of
contact with INS officials in the future. A reasonable person would have taken
prompt action—and not wait 11 years—to find out how and when that next contact
would occur. The IJ, therefore, did not abuse his discretion in concluding that
Ketbang failed to show that he did not have notice of his responsibility to inform the
INS of any address changes. See Murtuza v. Gonzales, 427 F.3d 508, 510-11 (7th
Cir. 2005); Nazarova, 171 F.3d at 483. Proper service of the Order to Show Cause is
therefore not an issue, see In re Grijalva, 21 I. & N. Dec. 27, 35-36 (B.I.A. 1995), and
once Ketbang realized that he would not be residing at “4717 North Winthrop,
Chicago, Illinois 60640,” it was his duty to inform the INS of that fact. 8 U.S.C.
§ 1252b(a)(1)(F)(ii) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
No. 05-1561 Page 5
§ 1229(a)(1)(F)(ii)); see Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005);
Wijeratne, 961 F.2d at1346-47 (7th Cir. 1992).
The petition for review is accordingly DENIED. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1392308/ | 306 P.2d 1103 (1957)
STATE of Montana, Plaintiff and Respondent,
v.
Wiley F. BLAKESLEE, Defendant and Appellant.
No. 9679.
Supreme Court of Montana.
Submitted July 5, 1956.
Decided January 5, 1957.
Rehearing Denied February 19, 1957.
M. K. Daniels, Deer Lodge, argied pra;;u for appellant.
Arnold H. Olsen, Atty. Gen., Emmet T. Walsh, Asst. Atty. Gen., and Malcolm MacCalman, County Atty., Deer Lodge, for respondent. Emmet T. Walsh and Malcolm MacCalman argued orally.
*1104 DAVIS, Justice.
The appeal here is by the appellant Blakeslee (hereafter the defendant) from a judgment of conviction rendered in the district court for Powell County and from an order denying his motion for a new trial upon his plea of not guilty to an information charging statutory rape alleged to have been committed by him about September 1, 1954, on his step-daughter, an eleven year old girl. The jury's verdict found him guilty and fixed his punishment at forty-five years in the state penitentiary. Judgment on the verdict followed on March 28, 1955. His motion for a new trial was denied on April 5, 1955.
Two errors are specified as grounds for reversal. The first of these specifications is in substance that because of a change made on March 21, 1955, in the defendant's attorneys his trial should have been postponed from March 24, 1955, the date upon which that trial actually took up, to March 28, 1955, that his new counsel might adequately prepare his defense. The second error assigned turns upon the admission in evidence at the state's offer of a blood-stained undergarment (plaintiff's Exhibit No. 1) identified by the prosecuting witness as hers and said to have been worn by her after the commission of one of the acts of sexual intercourse which the state's case tended to prove.
For an adequate understanding of the first error specified by the defendant a brief history of the course of this prosecution in the district court prior to the trial which began on March 24, 1955, is necessary.
The information was filed on October 4, 1954, approximately one month after the date of the crime charged. That same day the defendant appeared in court without counsel, was arraigned, and requested time within which to plead and to secure counsel. A further extension was granted on October 11, 1954, to October 18, 1954; when he appeared yet without counsel and in his proper person entered a plea of not guilty. Again he was given until February 7, 1955, within which to secure counsel of his own choice, the court stating on January 31, 1955, that if he could not do so by that time the court would then on February 7, 1955, appoint counsel for him. Sometime before February 14, 1955, the lower court learned that Blakeslee had retained counsel. Thereafter on March 7, 1955, the case was set for trial on March 21, 1955, before a jury.
At the time set for trial on March 21, 1955, the district judge recognized the withdrawal of the attorney previously retained by the defendant, but added that "in spite of the withdrawal, the case at hand will proceed for trial on March 24, 1955, at 10:00 o'clock A.M., and counsel will be appointed this day to represent the said Wiley F. Blakeslee." M.K. Daniels, Esq., of the Powell County Bar, was accordingly appointed; and the trial was set over as the court had announced to March 24, 1955.
At that time the defendant by his court-appointed counsel who had had the case only three days asked a further postponement to March 28, 1955, and supported his motion therefor by his own affidavit, which among other things advised the court that he had been required to spend the entire day following his appointment in Dillon, Montana in connection with a suit filed in Beaverhead County, to which it is evident he was committed before March 21, 1955. This affidavit closed with counsel's assertion by way of conclusion that he required "additional time to prepare a proper and adequate defense." This motion was denied. Likewise the court denied a further motion presented by counsel for a bill of particulars and overruled a demurrer to the information, both of which were filed, heard and summarily disposed of on March 24, 1955.
Here it may be conceded that the defendant himself was given more than two days to prepare for trial as R.C.M. 1947, § 94-7008, requires, and that his affidavit for a postponement of his trial to March 28, 1955, was insufficient under either R.C.M. 1947, § 94-7009, or sections 94-7010 and 94-7012, and the rule of this court announced in State v. Showen, 60 Mont. 474, 199 P. 917, *1105 which for more than thirty-five years has been the settled law of this jurisdiction.
However, the question presented here for this court to answer is not to be turned upon the language of these statutes or the rule of that decision, which we recognize as sound, but not in point here. The fundamental issue for us to resolve upon this appeal is whether the defendant Blakeslee was accorded the right given him by section 16, article III, of the Montana Constitution, "to appear and defend in person and by counsel" against the serious charge brought by the state, ranking in gravity as it does second only to murder, treason and other like capital offenses. The constitutional guaranty here accorded this defendant by our fundamental law is recognized and implemented by R.C.M. 1947, § 94-4806, subdivision 1, and, where as here he desires to employ counsel but is unable to do so, by the express provision made for the assignment of counsel by the court found in R.C.M. 1947, § 94-6512.
These rights of the defendant Blakeslee, both constitutional and statutory, the trial court recognized when on March 21, 1955, the district judge below approved the withdrawal of counsel previously retained, and appointed Mr. Daniels to defend. In these circumstances it is of no moment how much time the defendant and his original attorney had had to prepare for trial. Inherent in the appointment of Mr. Daniels was the recognition by the trial judge of the defendant's need of new counsel, and as well that the appointment of a new attorney for him should be made effective to present his defense. In short here it was not enough that the court merely appoint Mr. Daniels to defend; when he did so, it was incumbent likewise upon the trial judge to give that appointment effect. To this point see Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527, and cases cited at pages 544 to 547; State v. Jackson, 344 Mo. 1055, 130 S.W. (2d) 595; State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno, 135 W. Va. 473, and cases cited at page 482, 63 S.E. (2d) 845, 850. Compare 16A C.J.S., Constitutional Law, § 591 (b), pages 666-669; 11 Am. Jur., Constitutional Law, § 316, page 1107.
We think these authorities pertinent as well in the construction of our own constitutional and statutory provisions, and directly to be applied to Blakeslee's appeal at bar. When so applied the record before us in our view affirmatively shows that Mr. Daniels' appointment was made purposeless by compelling him to go to trial on March 24, 1955, and that in fact the defendant was denied the aid of counsel upon that trial which took up on only the third day after Mr. Daniels was appointed to defend him. Some of the facts shown by this record which persuade us that this conclusion is right are these: From the time of his arrest on or before October 4, 1954, the defendant Blakeslee had been confined in the Powell County jail because of his inability to make bail. His only near relative insofar as this record shows was his wife, whom it seems he had not seen since about January 21, 1955. Aside from the attorney first employed by him, who withdrew from his defense, it appears he had no contact while waiting in jail with anyone who was interested in his defense or in procuring witnesses for him, if he had any, unless it be one Andrew Beck, a former employer, who testified only that the defendant Blakeslee used his (Beck's) pickup truck, and that his character was generally good. In short this record affirmatively carries the conviction that the defendant had no chance to prepare a defense, and had indeed prepared none, until Mr. Daniels' appointment on March 21, 1955.
From that point on the record is moreover replete with facts which show affirmatively that Mr. Daniels was unacquainted with his case, particularly with the proof which the state had at hand and offered upon the trial and with the law applicable to the proof made; and that he needed time to familiarize himself with both. As the case is he did remarkably well in the circumstances. It is undenied that on March 22, 1955, he was required by a previous engagement to be in Dillon, Montana, in connection with a suit in *1106 Beaverhead County. Accordingly he had but one day left to get his case ready for trial. On that day he prepared and served a motion and demand for a bill of particulars, a motion for a postponement of the trial to March 28, 1955, and a demurrer to the information, but without moving first for a withdrawal of the defendant's plea of not guilty that the demurrer might be properly presented. For this oversight he is indeed to be excused. But the prejudice here done the defendant is not to be denied; for neither his demand for a bill of particulars nor his demurrer was properly brought before the court. Accordingly both were rightly denied.
Although the state offered proof of more than one act of sexual intercourse with the prosecuting witness alleged by the state to have been committed within the period of the statute of limitations, no motion to require an election by the state was made either during the course of its case, or thereafter. When the state came to lay its foundation for the offer in evidence of its plaintiff's Exhibit No. 1 upon the testimony of Dr. Benjamin resort was had initially to what plainly is hearsay evidence; evidence which challenged as such by an objection timely made would have been rejected. When here Mr. Daniels first comprehended the nature of the state's offer his objection that no proper foundation had been laid came probably too late. Had the state however been confined by motion to elect, or otherwise, to proof of an offense committed on or about September 1, 1954, as the information charges, this exhibit would properly have been excluded as too remote, and as well counsel's further objection. This would then be true even though testimony of an act of intercourse on September 19, 1954, were received to corroborate the evidence elsewhere in the record of the crime actually relied upon by the state for a conviction. Compare People v. Smittcamp, 70 Cal. App. (2d) 741, 747, 161 Pac. (2d) 983.
Finally, the story told by the prosecuting witness and her sister, aged fourteen years, is such as to tax the credulity of the most naive. According to that story, however, their mother, the defendant's wife, was present when as is the state's evidence the defendant came home late one night in early September 1954 after the prosecutrix and her sister had gone to bed and had their mother get them up to go with him in his pickup truck to a place some three and one-half miles out of town where as is again the girls' testimony the defendant indulged in intercourse with them successively and apparently with each in the presence of the other. If this testimony is true, and if the defendant's attorney, Mr. Daniels, had had a chance to locate the mother to verify that testimony, there would then have been little chance indeed that any trial at all would have been had. A plea of guilty undoubtedly would have followed.
On the other hand if this testimony is untrue, and it clearly is subject to the closest scrutiny, the girls' mother as the defendant's wife would have been a most powerful and persuasive witness on his behalf. If her testimony be contradictory of that of the girls, the county attorney will then have a weak case indeed on the facts. In either event Mr. Daniels was clearly entitled to a reasonable time after his appointment to locate the mother, if he could, and get her version; if he could not, at least he should have had the opportunity to satisfy himself that he could not do so. And in any case it makes no difference that upon the motion for a new trial, which he presented on April 4, 1955, he made no reference to the mother's testimony or to her as a witness who, if present, would have given testimony favorable to the defense. There is nothing in the law which vouchsafes a defendant the effective aid of counsel at his trial, but which requires then that after trial had he must justify by showing what evidence he could have procured had he had time to do so. The rule which gives him the right to counsel also means that counsel shall be given a reasonable time to prepare before trial. Whether counsel has had that time is not to be determined *1107 by what he does or does not do days, weeks, or months after trial.
In summary: This defendant may be as guilty as ever felon not hanged. He is nevertheless entitled to a trial consistent with our Constitution and Codes. Such a trial he has not had. Specifically, he is guaranteed counsel by appointment of the court, if he cannot himself employ an attorney. If then the court recognizes this right as was the case here, it is equally the duty of the court to make to appointment of counsel effective, i.e., to give court-appointed counsel a reasonable time for the preparation of his case after he has been appointed. Within the rule of the authorities cited we think this record is conclusive that Mr. Daniels did not have a reasonable time to get his case together, and that accordingly the trial court denied this defendant his right to effective representation by counsel in his defense at his trial. There must therefore be a new trial for this manifest error.
The defendant's second specification of error that the bloods-tained undergarments (plaintiff's Exhibit No. 1), which were identified by the complaining witness as hers, should not have been received in evidence on the record now before us cannot be sustained. But upon another trial after the state elects upon which of the alleged acts of intercourse it will stand for a conviction and upon another objection timely made, this exhibit may well be inadmissible, and then properly should be excluded.
The ruling here we must leave to the sound judgment of the trial court as the case may develop upon a new trial. On this record we cannot foresee what that record will be nor the ruling then to be made.
The judgment of conviction and the order denying a new trial from which the defendant has appealed are reversed. The case is remanded for a new trial consistent with the views herein expressed.
ADAIR, C. J., and ANDERSON and BOTTOMLY, JJ., concur.
ANGSTMAN, Justice (dissenting).
I think the judgment should be affirmed. It should be noted here that if defendant and his counsel did not have sufficient time to adequately prepare for trial some showing should have been made on motion for new trial that defendant's rights were prejudiced thereby. I concede that the time to prepare for trial was short but unless defendant was prejudiced thereby the verdict and judgment should stand. Defendant had ample time to prepare his motion for a new trial and doubtless had he asked for it, would have been allowed additional time to file affidavits.
The motion for new trial does not assert as one of the grounds that defendant has new evidence which he could not with reasonable diligence have produced at the trial.
Had defendant produced affidavits from witnesses tending to show that he had a defense which he was unable to produce at the trial because of the shortness of time allowed to prepare for trial, I would be among the first to favor the granting of a new trial. But this court is not concerned with abstract rights that do not affect the result. In other words, adverse rulings must be shown to have been prejudicial before defendant can complain.
In Young v. Commonwealth, 263 Ky. 683, 93 S.W. (2d) 10, 12, the court, in speaking of a like contention, said:
"* * * and there is not a fact appearing anywhere in the record remotely indicating that defendant was prejudiced because of the matters therein complained of. Not the slightest suggestion is anywhere made that any witness or any kind or character of evidence could have been produced by a postponement of the trial to a later date, and the only time or place wherein this ground is mentioned is in brief of counsel on this appeal."
What was said in Carson v. State, 137 Tex. C.R. 188, 128 S.W. (2d) 1182, 1183, fits this case. The court there said:
*1108 "He [defendant] does not even claim that he had any defense or any witnesses by whom he could establish the same.
"Consequently, the giving of further time to interrogate witnesses when he had none, and to prepare a defense which he did not have, would not have been of any avail to him." To the same general effect is Jones v. State, 205 Ark. 806, 171 S.W. (2d) 298.
In this state the principle of law is embodied in our statute, R.C.M. 1947, § 94-8207, which reads: "After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties." And this court has announced the rule to be that "`errors not substantially prejudicing accused are not available as grounds for reversal'." State v. Allison, 122 Mont. 120, 199 Pac. (2d) 279, 293.
I think the court properly denied the motion for new trial and that the judgment should stand.
On Motion for Rehearing
PER CURIAM.
At the time of the oral argument and submission of this appeal, and at the time the decision of the court determining the appeal was rendered, this court consisted of Mr. Chief Justice Hugh Adair and Associate Justice Horace S. Davis, R.V. Bottomly, Forrest H. Anderson and Albert H. Angstman, all of whom heard the oral arguments on the appeal and thereafter participated in the consideration of the case.
The decision of the court reversing the judgment of conviction and the trial court's order denying a new trial was rendered and pronounced on January 5, 1957. The opinion of the court was written by Mr. Justice Davis and the disposition of the case therein made was concurred in by Chief Justice Adair and Justices Bottomly and Anderson while Mr. Justice Angstman dissented.
On January 7, 1957, Justice Anderson qualified for and assumed the office of Attorney General of the State, to which office he had been duly elected at the general election held November 6, 1956, and the Honorable Wesley Castles, on appointment of the Governor, qualified for and now fills the vacancy on this court so occasioned. Also on January 7, 1957, Justice Davis completed the term of his appointment and retired from the court, being succeeded by Justice Adair, who then and there qualified for and assumed the office of Associate Justice, to which he had been duly elected at the general election so held November 6, 1956. Thereafter, and on said January 7, 1957, the Honorable James T. Harrison, on appointment of the Governor, qualified for and assumed the office of Chief Justice on this court.
Thereafter, on January 15, 1957, the state served and filed a motion for a rehearing herein. Since Chief Justice Harrison and Mr. Justice Castles were not members of this court at the time of its consideration or determination by this court, neither took any part in the consideration or determination of the State's motion for a rehearing herein.
On the question being put, Shall the motion for rehearing be granted? the members of this court so serving thereon at the time of the argument, submission and determination of this case on its merits decided as follows: In the affirmative: Justice Angstman and In the negative: Justices Adair and Bottomly, wherefore respondent's motion for rehearing herein failed and the justices voting in the negative being of the opinion that the motion for a rehearing does not present any proposition or question which was not fully considered by the court in rendering its decision, and nothing being presented to change the opinion of any member of this court who participated in this court's decision heretofore rendered upon the question decided, the state's motion for rehearing is denied, remittitur to issue forthwith. Gas Products Co. v. Rankin, 63 Mont. 372, 395-398, 207 P. 993, 999, 1000, 24 A.L.R. 294; State v. Morran, Mont., 306 Pac. (2d) 679. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2903331/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ISRAEL JUAREZ, No. 08-08-00323-CV
§
Appellant, Appeal from the
§
v. 394th District Court
§
JUAN LONGORIA, of Presidio County, Texas
§
Appellee. (TC# 6998)
§
OPINION
Israel Juarez appeals the trial court’s granting of summary judgment in favor of Juan
Longoria from Juarez’s suit for equitable relief following a real-estate transaction between the
parties. We affirm.
BACKGROUND
In February 2001, Longoria sold 5.28 acres to Juarez for a sum of $5,000. Subsequently,
Juarez, in March 2007, filed suit against Longoria for fraud and violations of the Deceptive Trade
Practices Act (DTPA), alleging Longoria sold the property in violation of the Model Subdivision
Rules and Section 5.069 of the Texas Property Code by failing to do two things: (1) provide a
seller’s disclosure; and (2) file a plat with the county prior to conveyance. Longoria generally denied
the allegations and moved for summary judgment on traditional and no-evidence
grounds. Specifically, Longoria argued, on traditional grounds, that the conveyance in excess of five
acres was an executory contract and thus asserted that the statute and rule relied on by Juarez did not
1
apply. He further contended that the statute of limitations for the real-estate transaction expired prior
to the filing of Juarez’s petition. On no-evidence grounds, Longoria argued that there was no
evidence to support the necessary elements of Juarez’s claims for fraud and violations of the DTPA.
The trial court later granted summary judgment in favor of Longoria.
ANALYSIS
On appeal, Juarez contends that the trial court erred in granting Longoria’s motion for
summary judgment, alleging Longoria was under a continuing duty to file the subdivision plat and
obtain approval. In other words, Juarez attacks Longoria’s statute-of-limitations argument relating
to his summary judgment on traditional grounds by arguing that “the duty to comply continues the
torts committed by [Longoria] until such time as compliance is established.”
A trial court’s decision to grant a summary judgment is reviewed de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003); Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384,
385 (Tex. App.–El Paso 2009, no pet.). As summary judgments must stand on their own merits, we
take as true all evidence favorable to the nonmovant. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d
217, 223 (Tex. 1999); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997);
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Wornick Co. v. Casas,
856 S.W.2d 732, 733 (Tex. 1993); Leffler, 290 S.W.3d at 385. Therefore, on appeal, the movant still
maintains the burden of showing there was no genuine issue of material fact, and that he was entitled
to judgment as a matter of law. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546,
548 (Tex. 1985); Leffler, 290 S.W.3d at 385.
However, where the district court does not state the basis for granting summary judgment,
2
the appealing party must negate all grounds that support the judgment. See Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d
374, 381 (Tex. 1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Leffler, 290 S.W.3d at
386. If the appealing party fails to negate each ground, we must uphold the summary judgment. See
Carr, 776 S.W.2d at 569; TGS-NOPEC Geophysical Co. v. Combs, 268 S.W.3d 637, 644 (Tex.
App.–Austin 2008, pet. filed); Leffler, 290 S.W.3d at 386.
In this case, Longoria moved for summary judgment on traditional and no-evidence grounds.
The trial court’s order on Longoria’s motion for summary judgment did not state what, out of the
different grounds raised, it granted summary judgment on. On appeal, therefore, Juarez was required
to negate all grounds alleged in the motion for summary judgment. He did not. Rather, Juarez solely
complained of Longoria’s statute-of-limitations argument raised in his traditional motion for
summary judgment. Because Juarez does not challenge the summary-judgment ruling on the
declaratory action or no-evidence grounds, we affirm the summary judgment on those grounds. See
Carr, 776 S.W.2d at 569; Leffler, 290 S.W.3d at 387; Ellis v. Precision Engine Rebuilders, Inc., 68
S.W.3d 894, 898 (Tex. App.–Houston [1st Dist.] 2002, no pet.); Holloway v. Starnes, 840 S.W.2d
14, 23 (Tex. App.–Dallas 1992, writ denied); King v. Texas Employers’ Ins. Ass’n, 716 S.W.2d 181,
182-83 (Tex. App.–Fort Worth 1986, no writ) (cases holding when a ground upon which summary
judgment may have been rendered, whether properly or improperly, is not challenged, the judgment
must be affirmed). Accordingly, we need not discuss whether the statute of limitations applies to
the real-estate transaction at issue, which was just one of the arguments related to Longoria’s motion
for summary judgment on traditional grounds. Juarez’s sole issue is overruled.
CONCLUSION
3
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
December 9, 2009
Before Chew, C.J., McClure, and Rivera, JJ.
4 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128403/ | 538 U.S. 939
MUNOZv.UNITED STATES.
No. 02-9107.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 592. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2787643/ | IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
VICTOR TED HERNANDEZ, Petitioner,
v.
THE HONORABLE JOSEPH C. WELTY, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent
Judge,
STATE OF ARIZONA, Real Party in Interest.
No. 1 CA-SA 15-0009
FILED 3-19-2015
Petition for Special Action from the Superior Court in Maricopa County
No. CR2010-137021-001
The Honorable Joseph C. Welty, Judge
JURISDICTION ACCEPTED, RELIEF GRANTED IN PART
COUNSEL
Taylor W. Fox, Attorney at Law, Phoenix
Brandon N. Cotto, Attorney at Law, Phoenix
By Taylor W. Fox
Co-Counsel for Petitioner
Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Co-Counsel for Petitioner
Sanders & Parks, P.C., Phoenix
By J. Arthur Eaves, Robin E. Burgess
Counsel for Real Party in Interest
Lewis Brisbois Bisgaard & Smith LLP
By Bruce C. Smith, Carl F. Mariano
Counsel for Blaine Gadow
DECISION ORDER
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
S W A N N, Judge:
¶1 This special action challenges the superior court’s refusal to
disqualify the Maricopa County Attorney’s Office (“the MCAO”) from
prosecuting petitioner Victor Ted Hernandez. We accept jurisdiction because
Hernandez has no equally plain, speedy, and adequate remedy by appeal. See
Ariz. R.P. Spec. Act. 1(a). We review for abuse of discretion, which may occur
when the court misapplies the law. Villalpando v. Reagan, 211 Ariz. 305, 307, ¶ 6,
121 P.3d 172, 174 (App. 2005).
¶2 In March 2010, the state, represented by the MCAO, obtained an
indictment against Hernandez for influencing a witness and participating in or
assisting a criminal syndicate. The court appointed Blaine Gadow, then an
attorney in private practice, to represent Hernandez. Gadow met with
Hernandez and exchanged written correspondence with him, but ultimately
withdrew from the representation before the initial pretrial conference.1
¶3 Unknown to Gadow, Hernandez had been under investigation for
an unrelated murder at the time Gadow represented him. Several months after
Gadow withdrew, the state, again represented by the MCAO, obtained an
indictment against Hernandez for first-degree murder and filed a notice of intent
to seek the death penalty.
1 On February 4, 2015, his counsel filed Blaine Gadow’s Motion To Formally
Intervene and/or Participate as an Amicus Curiae in this special action. The
motion is hereby granted; Mr. Gadow may participate in this matter as an
intervener.
2
HERNANDEZ v. HON. WELTY/STATE
Decision of the Court
¶4 In late 2013, Hernandez proposed to the MCAO a non-death-
penalty plea agreement that would resolve both the capital case and the non-
capital case in which Gadow had represented Hernandez. Hernandez’s proposal
was considered by the MCAO Capital Review Committee. At that time, Gadow
was employed by the MCAO as the Family Violence Bureau Chief, and by virtue
of that position was a member of the Committee. Gadow attended the
Committee meeting at which Hernandez’s plea proposal was considered, and he
participated in the vote that led the Committee to recommend rejecting it.
¶5 Hernandez filed a motion to disqualify the MCAO from
prosecuting the capital case, arguing that Gadow was disqualified and that the
MCAO was vicariously disqualified as a result of Gadow’s participation in the
Committee process. After holding an evidentiary hearing, the superior court
denied Hernandez’s motion.
¶6 Ariz. R. Sup. Ct. 42, E.R. 1.9(a), provides that “[a] lawyer who has
formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.” This rule applies to
prosecutors who formerly represented criminal defendants in private practice.
Ariz. R. Sup. Ct. 42, E.R. 1.11 cmt. 2. Further, Ariz. R. Sup. Ct. 42, E.R. 1.11(c)(1),
provides that such an attorney generally “shall not . . . participate in a matter in
which the lawyer participated personally and substantially while in private
practice.”
¶7 Under E.R. 1.9(a) and 1.11(c)(1), Gadow was disqualified, at a
minimum, from participating in the prosecution of the non-capital case. Because
Hernandez’s plea proposal included the non-capital case, Gadow should have
been screened from the Committee’s consideration of the proposal regardless of
whether the nature and content of his previous conversations with Hernandez
disqualified him from participating in the prosecution of the capital case. See
Ariz. R. Sup. Ct. 42, E.R. 1.11 cmts. 3, 5. Further proceedings are necessary to
determine whether Gadow’s participation in the Committee process that
included consideration of Hernandez’s non-capital case prejudiced Hernandez in
the context of the capital case such that the MCAO as a whole should be
disqualified from the prosecution. See State v. Superior Court (Pearson), 184 Ariz.
223, 228-29, 908 P.2d 37, 42-43 (App. 1995). The state shall bear the burden to
show that any confidential information conveyed to Gadow in the non-capital
case did not affect the MCAO’s decision to seek the death penalty in the capital
case.
3
HERNANDEZ v. HON. WELTY/STATE
Decision of the Court
¶8 This decision does not imply that disqualification of the MCAO
will be required. If Gadow did not communicate to the Committee confidential
information learned through his prior representation of Hernandez, and if
Gadow’s vote was not essential to the Committee’s decision to recommend
seeking the death penalty, imputed disqualification is not required. But on this
record, we cannot say what, if any, effect the failure to screen Gadow had on the
MCAO’s prosecution of the capital case. We therefore vacate the superior court’s
ruling and remand for proceedings consistent with this decision.
:ama
4 | 01-03-2023 | 03-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/997571/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7207
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWIGHT SHAFFER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern Dis-
trict of West Virginia, at Charleston. Charles H. Haden II, Chief
District Judge. (CR-92-299, CA-98-550-2)
Submitted: December 17, 1998 Decided: January 12, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dwight Shaffer, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dwight Shaffer appeals an order of the district court denying
a motion for sentence reduction based on Shaffer’s post-sentence
rehabilitation efforts. We affirm. Under 18 U.S.C.A. § 3582(c)
(West 1985 & Supp. 1998), and Fed. R. Crim. P. 35, the court may
not modify a term of imprisonment once it has been imposed except
in very narrow circumstances not applicable here. United States v.
Fraley, 988 F.2d 4, 6 (4th Cir. 1993). The cases cited by Shaffer
to support his argument that post-sentencing rehabilitation efforts
can be considered under the sentencing guidelines involve situ-
ations where an initial sentence has been reversed on other grounds
and the offender is to be resentenced, United States v. Sally, 116
F.3d 76 (3d Cir. 1997); or post-offense but presentence rehabil-
itation efforts. United States v. Brock, 108 F.3d 31 (4th Cir.
1997). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and oral argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128414/ | 538 U.S. 939
CALDWELLv.FLORIDA.
No. 02-9120.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA FOR THE SECOND DISTRICT.
2
Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 829 So. 2d 211. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128415/ | 538 U.S. 939
DULANEYv.UNITED STATES.
No. 02-9102.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 66. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3239621/ | It is first contended that the cause should be revised because the information filed by the solicitor did not conclude: "Against the peace and dignity of the State of Ala." The prosecution is for a misdemeanor begun by affidavit and not by indictment. The solicitor filed a complaint on appeal complying with section 3843 of the Code. In view of Code, § 4646, it was not necessary to have filed this complaint. Having done so and following the charge laid in the affidavit, there could be no objection to it, and the fact that this statement did not conclude, "Against the peace and dignity of the State of Ala.," is not error. Thomas v. State, 107 Ala. 61,17 So. 941; Simpson v. State, 111 Ala. 6, 20 So. 572.
The written charges requested by defendant were substantially covered by the court in its oral charge.
The defendant offered in evidence a paper called by him a receipt, and which he testified that he wrote and gave to one Whatley, at Gadsden, on February 26th, the time of the alleged sale of the liquor. While defendant was being cross-examined the solicitor asked him to write on a piece of paper the words appearing on the said receipt. This the defendant did. The solicitor did not offer this writing in evidence, and after the evidence was closed and the solicitor had arisen and addressed the jury in beginning his opening argument, the defendant asked permission of the court to reopen the evidence and to be allowed to offer this writing. This was discretionary with the trial judge, and, under the facts in this case, we are not authorized to declare that the trial judge abused his power.
The defendant insisted that the court committed reversible error in refusing to permit the jury to take with them into the jury room the written showing of one of defendant's witnesses. This was also within the sound discretion of the court. Code 1923, § 9511; Bradley v. State, 21 Ala. App. 539, 110 So. 157.
The ruling of the court relative to the remarks of the solicitor were without error. Moreover, the ruling of the court was in accord with the motion of defendant, and therefore he has no exception. *Page 65
There is no error in the record, and the judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448149/ | Affirming.
In the Carter circuit court, in an action by appellee, Flora Shepherd, against appellant, Grover C. Shepherd, judgment was entered divorcing her from him and awarding her $3,000.00 alimony, payable at the rate of $75.00 per month on the first day of each month, beginning May 1, 1926, the custody of her daughter, Opal Shepherd, and the costs of the action, including attorney's fees. This appeal has been prosecuted from so much of the judgment as awarded alimony.
Appellant insists that prior to the institution of this action appellee had instituted against him in the Lawrence *Page 716
circuit court an action for alimony, which had been prosecuted to judgment, by which she had been awarded $40.00 per month alimony. His answer herein pleaded the former action and judgment for alimony in bar of her right to recover alimony against him herein. Copies of the petition in the former action and the judgments relied on were filed as exhibits with appellant's answer. By reply herein filed appellee admitted that she had formerly instituted action for alimony in the Lawrence circuit court, but denied that final judgment was ever entered therein or any orders or judgments other than forpendente lite allowances; and she further pleaded that that action was dismissed without prejudice before the institution of this action. No rejoinder to that reply was filed nor was any order entered controverting its affirmative allegations of record. The two orders or judgments of the Lawrence circuit court, copies of which were filed as exhibits with appellant's answer, disclose that they were mere pendente lite allowances; and no final judgment was filed with appellant's answer or introduced in evidence. The allegation in appellee's reply that the former action was dismissed without prejudice stands in the record uncontroverted. Therefore, the entire argument in appellant's behalf, as the questions are presented by brief of counsel, based upon former trial and judgment concluding the question of alimony between the parties, is without foundation to support it.
On the merits no question as to the correctness of the judgment awarding alimony is raised for appellant nor is the amount awarded questioned. This court's consideration of the facts appearing in evidence leads to the conclusion that neither question could have been successfully raised.
The judgment, therefore, will be affirmed.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2886729/ | NO. 07-02-0313-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 5, 2002
______________________________
ANDREW MONTEMAYOR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;
NO. 2001-477,579; HONORABLE DRUE FARMER, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
DISMISSAL
Pending before this Court is appellant’s motion to dismiss his appeal. Appellant and
his attorney have both signed the motion representing that appellant wishes to withdraw
his notice of appeal pursuant to Rule 42.2(a) of the Texas Rules of Appellate Procedure.
No decision of this Court having been delivered to date, we grant the motion. Accordingly,
having dismissed the appeal at appellant’s request, no motion for rehearing will be
entertained and our mandate will issue forthwith.
Don H. Reavis
Justice
Do not publish.
2 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3447739/ | Affirming.
The determinate question is whether Isaac Merlock, on March 20, 1932, was "totally and permanently disabled by disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value," within the meaning of this phrase, as it is used in the policy of insurance here involved. Merlock was a coal miner for 25 or 30 years, working at the various types of work inside and outside of mines. On March 20, 1932, and for some time prior thereto, he was in the employment of the Inland Steel Corporation of Delaware, which was engaged in operating coal mines. E.R. Price was its superintendent at Wheelright. Its mine, at which Merlock was employed, did not operate regularly on account of conditions of the coal industry. According to the records of the corporation, during the month of November, 1931, the mine operated 21 days. During that time Merlock worked 19 days. His earnings were $79.40. During the month of December, 1931, the mine operated 7 days; Merlock worked 11 days (inside and outside); his earnings for that period were $39.63. In the month of January, 1932, the mine did not operate. Merlock, however, worked for the company 9 days, and earned $27.36. In the month of February, 1932, the mine operated one day; Merlock worked 4 days and earned $11.68. In the month of March, 1932, until the day Merlock left the employment of the company, the mine operated 7 days; Merlock worked 7 days, and earned $17.10.
During these months Merlock "loaded 14 or 15 tons a day." G.C. Sutherland worked with Merlock. He says that Merlock was "a good workman," and "all the *Page 191
men wanted to work with him." He saw him load "trucks, unload slate out of the mine, and move heavy timber." "He was a leader of the gang." John Hendrick was a brakeman at the Inland Steel Corporation's mine. His duty was "to pass up the motors." He was a brakeman where Merlock did his loading and saw Merlock load 12 to 14 tons a day.
The general condition of business became such that it was deemed proper by the Inland Steel Corporation to reduce the number of its employees. In doing so, it undertook to retain all married men and those with dependents. On March 20, 1932, in accordance with this policy, it laid off about 60 or 70 men, leaving possibly one or two single men (who were supporting a mother or a sister). Merlock was unmarried, with no dependents. Of the number discharged he was included. While engaged in his work the heart trouble, of which he now complains, was not apparent to the inmates of the home at which he boarded, nor to his fellow servants. It was the custom of the Inland Steel Corporation to have its employees undergo a physical examination at stated periods. Dr. John Bailey, residing at Wheelright, was its physician who conducted such examinations. On November 6, 1931, while engaged in making regular physical examinations of its employees, he examined Merlock, and observed that he was a man "of good physique, around 40 years old, well nourished, and normal in every respect, except he had a murmur in the aorta valve, which could be heard in the region of the heart," but "it was not a condition that would prevent him loading coal or doing work around the mine," nor "impair his efficiency or ability to engage in such work." In November he administered to him the Wasserman test, which showed four plus. Contrariwise, Merlock testifies that after he was examined by the corporation's doctor he was "cut off of the payroll" and given the information that he was not to get "another shift in the mines" on account of his heart. He claims that his heart had been giving him trouble for 2 or 3 months before he quit work and that the affected condition of his heart during that time was about the same as it was at the time he testified herein. To support his testimony, he introduced Drs. Pickelsimer, Wells, and Castle, They examined him on April 5, 1932. They agree that their examination disclosed a diseased heart. "somewhat enlarged, with murmurs in at least three valves *Page 192
(called leaking heart), blood gushing back in the heart"; that owing to the condition of his heart "it beat faster," caused "smothering spells," and "temporary heart failure"; i. e., "the heart would dilate and fall." It was their judgment he was unable to do any kind of work and death might result even "by climbing stairs"; that his heart disease was permanent. Dr. Stephens and Dr. Bailey examined him after April 5, 1932. Dr. Stephens details his examination in this language:
"Briefly the patient was fairly well developed, well nourished, weighed 138 pounds, eyes normal, never complained of his eyes, teeth all right, except a few fillings, no teeth abscessed or connected with any pus or any teeth that threw off any poisons, tonsils normal, so was his throat. The examination of the abdomen was negative, no masses or tumors nor hernia or rupture. Nothing there to indicate a diseased condition, but he did have a diseased heart. He had what is called diseased aorta, or murmur, and a leak in the tricuspid valve of the heart. This murmur was moderately well divided, could be plainly heard in the pulmonary area, the middle part of the chest. The murmur was not discernible under his arms, or that portion of the chest, no swelling indicated, no decomposition. He had some slight enlargement of the heart. * * * I am positive he has leakage of the heart, no swelling of the feet or legs, his carriage, gait and posture seemed normal as far as I could tell."
It was the opinion of Drs. Bailey and Stephens there was nothing in the condition of Merlock's heart that would necessarily or unreasonably disable him when engaging in normal labor or physical exertion.
The record of Merlock's work, the amount paid him therefor, the testimony of his fellow workmen, and his conduct in returning and seeking employment of the Inland Steel Corporation after his discharge in March, corroborate Drs. Bailey and Stephens.
The policy expressly provides that the insurance under it shall automatically cease "upon termination of the employee's employment with The Inland Steel Corporation in the classes of employees insured thereunder without regard to the cause of such termination." It contains this clause:
"In the event that any employee while insured *Page 193
under this policy and before attaining the age of 60 becomes totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value, upon receipt of due proof of such disability before the expiration of one year from the date of its commencement, the Society will, in termination of all insurance of such employee under this policy, pay equal monthly Disability Installments, the number and amount of which shall be determined by the Table of Installments below; the number of installments being that corresponding to the nearest amount of each installment shall be adjusted in the proportion that the amount of insurance on such employee's life bears to the amount used in the table in fixing the number of installments. The amount of insurance herein referred to shall be that in force upon the date on which said Total and Permanent Disability commenced."
The fact Merlock, with 60 or 70 other employees, was discharged on March 20, 1932, and the reasons therefor, are neither denied nor disputed by any evidence in his behalf except inferentially. He does not deny categorically the testimony of his fellow employees or of the records of the company, showing the quantity and quality of work he actually performed prior to March 20, 1932. The decisive question is, not whether Merlock had disease of the heart, but whether at, and prior to, the time he was discharged on March 20, 1932, he was "totally and permanently disabled by disease and will thereby presumably be continuously prevented for life from engaging in any work of financial value." It was incumbent upon him to establish by competent and relevant evidence that he was totally and permanently disabled by heart disease and the disease commenced before his discharge, and will, presumably, continuously prevent him for life from engaging in any occupation or perform any work for compensation of financial value. Ohio National Life Ins. Co. v. Stagner, 231 Ky. 275,21 S.W.2d 289; Doyle v. New Jersey Fid. Plate Glass Ins. Co., 168 Ky. 789, 182 S.W. 944, Ann. Cas. 1917D, 851; Travelers' Ins. Co. v. Turner, 239 Ky. 191, 39 S.W.2d 216,217; John Hancock Mutual Life Ins. Co. v. Cave, 240 Ky. 56,40 S.W.2d 1004, *Page 194
79 A.L.R. 848; Henderson v. Continental Cas. Co., 239 Ky. 93,39 S.W.2d 209.
The language of the court in Travelers' Ins. Co. v. Turner is strikingly pertinent, wherein it is said:
"In order to determine what merit there may be in this contention, it will be necessary only to consider the evidence for the appellee, and, if his evidence tended to establish that he was totally disabled while in the employ of the Louisville Milling Company, he was entitled to have his case submitted to the jury, though the evidence for the appellant tended to contradict that for the appellee. In such state of case it would of course be for the jury to say what were the facts from the contradictory evidence adduced. The question of what is total disability within the meaning of such a phrase in a life insurance policy must be considered from two angles which may be designated as those of quantity and quality. To what extent must an assured be disabled from doing anything before he can be called totally disabled? This is the angle of quantity. What line or lines of work must he be unable to perform to come within the terms of his policy? This is the angle of quality. In the instant case we have only the question of quantity. The decisions of our court bearing upon this proposition were reviewed and considered by this court in the case of Provident Life
Accident Ins. Co. v. Harris, 234 Ky. 358, 28 S.W.2d 40. In that case we pointed out how this jurisdiction had adopted the liberal construction doctrine which is to the effect that total disability does not mean absolute helplessness or entire physical disability, but rather an inability to do substantially or practically all material acts in the transaction of the insured's business in his customary and usual manner. In that case we pointed out that the insured was doing himself, although helped at times, all the duties incumbent upon him, and because of that we held that he was not entitled to recover under his policy for total disability. The cases of Doyle v. New Jersey Fidelity Plate Glass Ins. Co., 168 Ky. 789, 182 S.W. 944, Ann. Cas. 1917D, 851, and Ohio National Life Ins. Co. v. Stagner, 231 Ky. 275, 21 S.W.2d 289, were cited. In the Doyle Case, because the insured did do substantially all the work he was accustomed *Page 195
to do before his accident, he was denied recovery, but in the Stagner Case he was allowed to recover because, although he was able at time to do fitfully some things he was substantially and practically unable to do all the material acts in the transaction of his business. To the same effect are Hagman v. Equitable Life Assurance Soc. of U.S., 214 Ky. 56, 282 S.W. 1112; Continental Casualty Co. v. Linn, 226 Ky. 328, 10 S.W.2d 1079, and National Life Ins. Co. v. O'Brien's Ex'x, 155 Ky. 498, 159 S.W. 1134."
The testimony in behalf of Merlock and of the insurance company is adequate to support a verdict in favor of either of them. The jury accepted that in favor of Merlock. When the case is viewed in the light of the provisions of the policy, the principles, supra, and the conflicting evidence adduced, it is not doubtful it was properly submitted to the jury.
It is argued "there was no evidence that Merlock had become totally and permanently disabled, within the provisions of the policy, before the termination of his employment on March 20th, 1932." This argument overlooks the testimony of Merlock to the effect that he was afflicted with the heart trouble before he ceased to work, as it is described by the physicians who examined him on the 5th of April, 1932; also, the fact the condition of his disease on April 5, 1932, as it is described by these physicians, could not have originated between March 20th and April 5th, and reached the degree of seriousness, in which they found it, on the latter date.
The argument that the pleadings do not support the judgment is again presented, with the usual contention that Merlock's cause of action is based upon the certificate of insurance, and not upon the group policy. We considered this question in Equitable Life Assurance Soc. of U.S. v. Branham, 250 Ky. 472,63 S.W.2d 498, 499; John Hancock Mutual Life Ins. Co. v. Cave, supra; and also Ætna Life Ins. Co. v. Daniel,251 Ky. 760, 65 S.W.2d 1025, decided Dec. 12th, 1933. As was said in the Branham Case, "the insurance company, without objection filed its answer." "Failure of the appellant to present in the trial court its objections to he several actions being based on the certificates instead of the policy and its answer setting forth the policy, and the filing of the same, were a waiver of the objections here and now presented." *Page 196
These cases are conclusive of the insurance company's objection to the action being based on the certificate of insurance.
The argument is pressed "that the court erred in permitting the jury to find a verdict and in entering a judgment thereon, for an amount, which included disability benefits [No. 1] which might fall due in the future, depending upon whether or not Merlock's alleged total and presumably permanent disability continued, and [No. 2] which even if such disability did continue, might be owing or not to Merlock, but to his beneficiary." In Equitable Life Assurance Soc. of U.S. v. Branham, supra; Travelers' Ins. Co. v. Turner, 239 Ky. 191,39 S.W.2d 216, 218, and in Prudential Ins. Co. of America v. Hampton, 252 Ky. 145, 65 S.W.2d 980, decided November 3, 1933, the like argument was made, to override a judgment in the same language of that in the present one. The determination of this question in those cases should now be regarded as final, and this form of judgment, in such cases, is no longer subject to controversy, in this jurisdiction.
Again we have presented the argument that the words of the policy, i. e., "prevented for life from ento the several actoins being based on the certificates ingaging in any occupation or performing work for compensation of financial value," "mean that the insured must be prevented by disability from engaging in any gainful occupation, for which he is fitted by his training, skill, actual ability or experience, rather than his regular occupation or business." The trial court in its instructions properly adopted and followed the definition of the words "total disability', as they were defined by this court in Travelers' Ins. Co. v. Turner, supra; Hagman v. Equitable Life Assur. Soc. of United States, 214 Ky. 56,282 S.W. 1112; Equitable Life Assurance Soc. v. Fannin, 245 Ky. 474,53 S.W.2d 703; Henderson v. Continental Cas. Co., supra; Columbia Cas. Co. v. McHargue, 246 Ky. 93, 54 S.W.2d 617; National Life Acc. Ins. Co. v. Bradley, 245 Ky. 311,53 S.W.2d 701; Ætna Life Ins. Co. v. Wyant, 249 Ky. 562, 61 S.W.2d 50; National Life Acc. Ins. Co. v. O'Brien's Ex'x,155 Ky. 498, 159 S.W. 1134; Benefit Ass'n of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682; Equitable Life Assurance Soc. of U.S. v. Branham, supra. The pronouncement in those cases of this court's definition of the term "total disability" *Page 197
ought to be, and is, sufficient to class it as "well settled" by this court. The sole object of the parties to the insurance contract here involved was that the employees of the Inland Steel Corporation, as such, were to be protected by the policy and the certificate of insurance issued in accordance therewith, only so long as they continued in the services of the Inland Steel Corporation. The policy insured Merlock as a coal miner, while working at the various types of work inside and outside of the mine of the Inland Steel Corporation. It only protected him as an employee while engaged in the various types of work of a coal miner as an employee of the Inland Steel Corporation. The disability which he was insured against was one that would render him unable to follow his usual occupation in the performance of any of the various types of work inside and outside of the mine of the Inland Steel Corporation, although he might be able to do something else. Hence, it follows that if he was unable to follow his occupation as a coal miner, because of disease of the heart, it was "total disability," within the meaning of the policy. See cases supra. As was said by this court in Equitable Life Assurance Soc. of U.S. v. Branham, "the policies in these cases clearly were an insurance against such presumbly total disability as might prevent the insured from following their regular occupations in which they were engaged at the time of their respective injuries, and none other."
The Equitable Life Assurance Society, utilizing Ætna Life Insurance Co. v. McCullagh, 191 Ky. 226, 229 S.W. 1033, as a premise, urgently insists that later opinions of this court have erroneously disregarded the correct definition of the term "total disability." In Ætna Life Insurance Co. v. McCullagh, and in others following it, the policy provided for partial as well as total disability. In the present case the policy provides solely for total disability. Hence, the case of Ætna Life Ins. Co. v. McCullagh, and like cases, are not authority in the present one, nor do they conflict therewith.
Drs. Bailey and Stephens examined Merlock after April 5th, and while they agree with the physicians who examined him on April 5th that Merlock was afflicted with diseased heart, they gave it as their opinion that by proper treatment without much risk to him, the primary cause of the disease can be removed, and the impairment of the heart thereby arrested to a degree that *Page 198
he will be enabled to perform the labor of an average man of his natural, normal, physical strength. It is a rule of general application that where a plaintiff sustains damage by reason of an injury or disease, it is his duty to minimize his damage. H. T. Whitson Lbr. Co. v. Upchurch, 198 Ky. 127, 248 S.W. 243; Gaffney v. Switow, 211 Ky. 232, 277 S.W. 453. And if his injury or disease may be corrected by treatment or thereby materially decreased, it is his duty to exercise ordinary care in an effort to effect a cure or to relieve himself. His failure so to do precludes or mitigates his damage, according to the facts in the particular case.
Without deciding the applicability of this principle to contracts of insurance, will say, in the pending case no pleading presented such defense. The court in every case should instruct the jury only on the issues presented by pleadings which are supported by the evidence. Conceding, without deciding, however, that the testimony of Drs. Bailey and Stephens in this respect was admissible under the general issue, no instruction was offered or requested by the company on this theory. The omission from the instructions of a qualification based on this testimony of Drs. Bailey and Stephens was not an error.
Perceiving no error prejudicial to the substantial rights of the insurance company, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447740/ | Reversing.
The appellant and plaintiff below, A.B. Childers, by this action filed by him in the Knott circuit court against appellee and defendant below, J.H. Pigman, sought a judgment against the latter for the sum of $1,000 and interest, due plaintiff, as alleged, because of a due bill executed to him by defendant on February 14, 1924, for the sum of $500 and a note executed on the same day for the same amount. Defendant answered, admitting the execution of the due bill, but denied the execution of the note, and also alleged that it was without consideration. He then set out the transactions out of which the instruments sued on originated, and they were: That defendant and plaintiff, about December 1, 1923, formed a partnership to conduct a mercantile business in a country store in Knott county, and pursuant thereto they purchased from Grover Hall his store and merchandise valued at $1,352.92, and that each of them executed his note to Hall for one-half of that amount; that plaintiff then moved the stock of goods from a country store he had theretofore operated, some distance therefrom, of the value of $500, and put it into the partnership store; that they operated their partnership for about 45 days, when defendant bought out plaintiff's interest and agreed as consideration therefor to pay plaintiff's note to Hall, which was then outstanding, and in addition to pay plaintiff $500, which, according to defendant, was to be evidenced by two notes of $250 each, due in 6 and 12 months, *Page 232
respectively, with personal surety; that at the time defendant was not prepared to execute the notes with surety pursuant to the agreement, and, in lieu thereof, and for temporary purposes only, he executed the due bill with leave to later substitute it with the two notes as soon as they could be executed; that before he could do so plaintiff filed this action in which an attachment was procured and levied on his stock of goods, but for which he executed forthcoming bond pursuant to the provisions of section 214 of the Civil Code of Practice; that he had paid the note executed by plaintiff to Hall; and that, as stated, the note sued on was a forgery and without consideration and in no event did he owe plaintiff more than the amount of the due bill.
Upon the filing of that answer, and on July 23, 1924, the court rendered judgment in favor of plaintiff against defendant for the amount of the due bill and the latter replevied it and subsequently paid it, but the cause was continued in so far as recovery was sought upon the note. For some unexplainable reason the petition was styled in the caption "Petition in Equity," and nearly two years after the judgment supra was rendered (July 10, 1926) plaintiff took the depositions of himself and one Fugate. In his deposition plaintiff testified that in the purchase of his one-half interest in the partnership stock of merchandise defendant was to pay the Hall note, and also $1,000, half of which was evidenced by the due bill, and the other half by the note and that defendant signed the latter. He proved by his witness Fugate that defendant did sign the note. Those depositions were immediately filed, they having been taken on Saturday before the court met on the following Monday, and on July 14, 1926, the court submitted the case for judgment, but on the next day defendant moved to set aside the submission and transfer the cause to the ordinary docket, which motion was overruled. The court then rendered the judgment appealed from, which was and is a radical departure from approved practice and unparalleled in judicial procedure so far as we have been able to discover. It was adjudged therein that the prior judgment on the due bill, which was rendered nearly two years before and had been paid, was erroneous, and it was set aside upon the ground that the note was executed in satisfaction of the due bill, and the petition, in so far as it sought recovery on the note, was dismissed at defendant's cost, and plaintiff prosecutes this appeal therefrom. *Page 233
The record, at the time of the rendition of that judgment, had in it the depositions of plaintiff and his witness Fugate, which was the only proof in the cause. Those depositions established beyond contradiction not only that defendant agreed to pay plaintiff the amount of the due bill, but that he further agreed to pay in addition thereto the amount of the note, a part of the consideration of which was plaintiff's agreement not to engage as a competitor of defendant in business in that vicinity, and which, if true, was itself a valuable consideration, to say nothing about plaintiff's half interest in the stock of merchandise. There was, therefore, no authority whatever for the court at a subsequent term to set aside the prior judgment rendered on the due bill, even if grounds therefor existed, but which was untrue, and equally erroneous was the court's order in denying recovery on the note under the condition of the record as then made up. It is therefore conceded by defendant's counsel that the judgment must be reversed; but counsel for the respective parties differ as to the proper orders and directions that should be made and given by this court.
As we have heretofore indicated, the case was strictly and exclusively an ordinary one, but defendant's motion to transfer it from the equity to the ordinary docket came too late. Plaintiff took his testimony more than two years after the action was filed and practically as long after the issues were made; the answer having been controverted of record when it was filed. Between the time of taking that proof and the convening of court those depositions could not be contradicted by defendant by counterproof taken in the same way, which was the way it should be done with the case on the equity docket. There was, therefore, a premature submission of the cause after plaintiff's depositions were taken and filed, and the justice of this case requires that we should not direct a judgment on the note, which would be the usual course in strictly equity cases. On the contrary, the same regard for justice dictates that we reverse the judgment and direct the court to set it aside and to then give defendant reasonable time to take his proof.
Wherefore the judgment is reversed, with directions to set it aside with leave for each party to amend his pleadings, if he so desires, and for further proceedings consistent with this opinion. *Page 234 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447742/ | Affirming in part and reversing in part.
On September 7, 1922, Caner Halcomb and wife, and Celestia Hood and her husband, for a cash consideration of $900, sold to Calvin Halcomb, their brother, a three-sevenths interest in a 75-acre tract of land situated on Poor fork of Cumberland river in Harlan county. Of the interest so conveyed Caner Halcomb conveyed one-seventh and Colestia Hood two-sevenths, one of which she had acquired by deed from her brother, James Lee Halcomb. On September 19, 1922, Nancy Halcomb, the mother of Calvin Halcomb, in consideration of $1 cash, sold and released unto him the three-sevenths of the tract of land theretofore conveyed by Calvin Halcomb and wife and Celestia Hood and her husband. On March 19, 1927, Nancy Halcomb, for the recited consideration of $500 cash, sold and conveyed to Calvin Halcomb the entire 75 acres, with the exception of a life interest in the house, garden, and orchard.
This action was brought by Nancy. Halcomb to set aside the deeds of September 19, 1922, and March 19, 1927, on the ground of mental incapacity and undue influence. On final hearing the court declined to cancel the deeds, but awarded Nancy Halcomb a lien on the land for $480. She appeals.
The record discloses the following: The land in controversy was purchased originally by E.J. Halcomb with the proceeds of a tract of land in Perry county, which Nancy had helped him to buy. They had then and have now four sons, Esquire, James Lee, Calvin, and Caner, and three daughters, Celestia Hood, Hannah Miller, and Becky Lane, the youngest being about 23 years of age. About the year 1914 Nancy and her husband separated. In the same year her husband conveyed the land in controversy to his son, Esquire Halcomb, in exchange for certain houses and lots. Not long thereafter, Esquire Halcomb conveyed the land to his mother for the sum of $400. Of this sum Nancy paid $105, while the balance was paid by Calvin and Caner, but, as Nancy claims, with stock or produce raised on the farm. It also appears that Celestia Hood helped to discharge a lien on the property. Although the fee-simple title had been conveyed to Nancy, the land was considered "heirship" land; and it was generally regarded by all of them that each of the seven children had a one-seventh interest in *Page 127
the property. Carrying out this notion the deed of September 7, 1922, from Caner Halcomb and wife and Celestia Hood and her husband, conveying a three-sevenths interest in the land to Calvin, was executed. Shortly thereafter Calvin was advised by Dave Creech, a notary public, that the deed from Caner Halcomb and Celestia Hood was of no benefit to him. He then told his mother what Creech had said, and his mother agreed to make his title good. Thereupon she executed the deed of September 19, 1922. Later on she executed the deed of March 19, 1927. Calvin had the two deeds prepared and paid the fees of the officer taking the acknowledgments. At the time he lived within a few yards of his mother's home, and he and his brother Caner were his mother's chief dependence. Not only so, but he was generally regarded as the leading member of the family. At the time of the conveyance Nancy had no other property, and could neither read nor write. She says that she would not have made the deeds had not Calvin persuaded her to do so, and she executed them "just for the lack of sense." She received nothing for signing the release deed, and the only part of the consideration for the deed of March 19, 1927, ever paid was the sum of $20. She admitted that Calvin had sent her $15 a month for 17 months during the War, and that he had been very good to her. It further appears that the consideration of $500 stated in the deed of March 19, 1927, was merely nominal and was not intended to be paid. Nancy further claims that the other children wanted her to make a deed to them for part of the land, but Calvin did not want it done. Calvin claims that he paid $900 for Caner's interest in the place, and then bought out Celestia Hood's interest for $450. When he told his mother that Creech had said that he got no title from them she said: "I will go tomorrow and have the release deed made." He further claims that, as part of the consideration for the second deed, he agreed to support his mother during the balance of her life. This she denied. The value of the land was fixed at from $800 to $6,000.
Here the transaction was between mother and son. She was old, infirm, and inclined to look to him for guidance. He was young, active, and vigorous, lived within a few yards of his mother, and was regarded as the leading or dominant member of the family. In view of the confidential relationship, and attendant circumstances, the burden was on the son to show that the transactions *Page 128
were freely and voluntarily entered into and devoid of inequitable incidents. Smith v. Snowden, 96 Ky. 32,27 S.W. 855, 16 Ky. Law Rep. 353; Kelly v. Fields, 167 Ky. 796,181 S.W. 657. With respect to the first deed of September 19, 1922, we think this burden was fairly met. The children of Nancy Halcomb helped to pay for the land. Though the legal title was conveyed to her, both she and the children were of the opinion that the property belonged to all of them. Acting on this belief Calvin purchased the interests of his brothers and sister and paid a substantial consideration therefor. Though Nancy denies it, Calvin says that she suggested that he make the purchase. Whether this be true or not, it is clear that the transaction took place with her knowledge and consent. When informed of the fact that the deed from Caner and wife and from Celestia Hood and her husband passed no title to Calvin, Nancy, for the purpose of giving effect to that deed, executed the deed in question. Though uneducated, her deposition shows Nancy to be a woman of good common sense, and a careful consideration of all the evidence leads to the conclusion that she made the deed freely, voluntarily, and with full appreciation of its consequences, and that the transaction was devoid of inequitable incidents. It follows that the court did not err in refusing to set the deed aside.
With respect to the deed of March 19, 1927, the situation is different. It was not made for the purpose of giving effect to any conveyance by any of Nancy's children to Calvin. At the time of the conveyance the land in question was worth at least $1,500, and Nancy's remaining four-sevenths were worth over $800. Nancy owned no other property. Though the deed recites that the consideration of $500 was paid, as a matter of fact it was not paid and never was intended to be paid. On the contrary, the consideration was regarded by both Nancy and Calvin in the same light as a consideration of $1. Therefore the case is one where a mother of advanced years conveyed practically all of her property to her son without any consideration whatever. In the circumstances it hardly can be said that the burden of showing the fairness of the transaction was met by Calvin. On the contrary, the unfairness of the transaction stands out in such bold relief that there is no escape from the conclusion that it was the result of undue influence. It follows that instead of awarding Nancy a lien on the property *Page 129
for $480, the court should have set aside the conveyance of March 19, 1927.
Judgment affirmed in part, reversed in part, and cause remanded, with directions to enter judgment in conformity with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447743/ | Affirming.
Appellants were indicted in the Magoffin circuit court for stealing chickens of the value of more than $2. They were found guilty and their punishment fixed at one year's imprisonment. They appeal.
Only two grounds of reversal are relied on. The first is that the court erred in impaneling the jury from men summoned from Pike county. This objection was first made in the grounds for a new trial. Under section 281 of the Criminal Code the decisions of the court upon challenges to the panel are not subject to exception. Under this provision it has been often held that an exception to the action of the court in ordering a jury to be summoned from another county cannot be complained of in this court. Frasure v. Commonwealth, 180 Ky. 274,202 S.W. 653; Owens v. Commonwealth, 188 Ky. 502, 222 S.W. 524; McLaughlin v. Commonwealth, 192 Ky. 210, 232 S.W. 628; Hall v. Commonwealth, 196 Ky. 172, 244 S.W. 425; Medlock v. Commonwealth, 216 Ky. 718, 288 S.W. 670.
The other objection is that it does not appear from the evidence that the offense was committed in Magoffin county. The court by his instruction told the jury that they should acquit the defendants unless they believed beyond a reasonable doubt that the offense was committed in Magoffin county. The question presented is, was there sufficient evidence to warrant this instruction and the verdict of the jury finding the defendants guilty? *Page 79
Goldie Rice testified that she lived on Middle Fork; that the defendants lived about three-fourths of a mile above her house on the same creek; that the chickens were stolen from her house and taken to the defendants' houses. Joe Prather testified that he lived on Middle Fork near the parties and so did Sherman Perry. In addition to this a number of other witnesses were introduced stating where they lived and telling about local conditions. A jury knows the names of the streams in the county. So it is the well-settled rule of this court that, although no witness tells that the facts occurred in the county, yet where the witnesses state facts locating the occurrence so that people familiar with locations in the county would know where the facts happened, it is a question for the jury whether the offense was committed in the county. In Combs v. Commonwealth, 25 S.W. 592 15 Ky. Law Rep. 659, the proof was that the offense was committed "at the 'mouth of Buckhorn,' and at 'Jones' and Field's storehouses.' " It was held that the question was properly submitted to the jury. To same effect is Keefe v. Commonwealth, 175 Ky. 51, 193 S.W. 645; Cline v. Commonwealth, 186 Ky. 429, 216 S.W. 594.
In view of the number of witnesses testifying and giving distances, the question whether the offense was committed in Magoffin county was properly submitted to the jury. A number of character witnesses were introduced, including several county officers. In speaking of Middle Fork it cannot be assumed that the witnesses referred to a creek of that name in some other county. Section 353 of the Criminal Code provides:
"The judgment shall be reversed for any errors of law appearing in the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby."
Plainly, on the whole record, no substantial rights of the defendants were prejudiced. There was sufficient evidence that the chickens were of value of $2 to take the case to the jury.
Judgment affirmed. *Page 80 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447747/ | Affirming.
At the August, 1929, primary election, the appellant and contestant below, F.P. James, received the highest number of votes for the Republican nomination for the office of sheriff of Mercer county. The county board of election commissioners, after canvassing and tabulating the vote cast in the primary election, issued and delivered to appellant a certificate of nomination, but neither he, nor any one for him, filed it with the county court clerk of the county within the time required by law.
A few days before the general election, but before the ballots had been printed, the Republican county executive committee met and nominated appellant to fill the vacancy caused by his failure to file his certificate of nomination, and his name was certified to the clerk of the county court, who caused it to be printed on the ballot under the emblem of the Republican party as that party's candidate for sheriff of Mercer county.
The appellee and contestee below, John S. Buster, received the highest number of votes in the primary for the Democratic nomination for the office of sheriff of Mercer county. The election commissioners made out a certificate certifying to his nomination, signed it, and left it in a book in the office of the clerk of the Mercer *Page 464
county court. They also signed two blank forms which were left in the same book. It appears that it was customary for the clerk to fill out the blank forms to correspond to the original certificate and to deliver one to the candidate when he called for it. Appellee's name was printed on the ballot as the Democratic candidate for the office of sheriff and at the election he received 3,159 votes and appellant received 2,260 votes. The election commissioners issued to appellee a certificate of election.
In due time after the canvass of the November election by the board of election commissioners, appellant instituted this contest against appellee, alleging the number of votes he received, all of which he averred were valid, and that contestee's name was wrongfully printed on the ballot for the regular election without any authority on the part of the county court clerk to do so, and that all the votes he received were null and void. He alleged that the contestee failed to file his certificate of nomination as the Democratic candidate for sheriff of Mercer county within the time prescribed by law, which was 45 days before the regular November election to be held on the 5th day of November, 1929; that the contestee did not file his certificate of nomination until the 7th day of October 1929, which was less than the requisite 45 days before the regular November election, and that, by reason of his failure to file his certificate of nomination 45 days before the regular November election, the action of the county clerk in causing his name to be placed upon the ballot under the Democratic device was void, and that consequently he received no legal votes for the office of sheriff.
The grounds of his contest were denied in the answer, which was also made a counter contest. Contestee alleged that the certificate of nomination issued to him by the county board of election commissioners was signed by the members of the board and left with the county clerk and remained in his office and possession from the day of its issuance until the November election, and was in the possession of the clerk continuously during that time; that more than 45 days before the regular November election he went to the office of the county clerk who had possession of the certificate and requested that the certificate be filed, and that the clerk informed him that it should be filed 15 days before the regular November election, and that he left the certificate in the possession of the clerk to be filed as required by law. As grounds of *Page 465
counter contest, he alleged that appellant had not been nominated by a properly elected Republican executive committee, and that the meeting of the Republican executive committee which attempted to nominate him was not properly called. Appropriate pleadings completed the issues, and upon the submission of the case the lower court entered a judgment dismissing the contestant's petition, and he has appealed.
In 1892 the General Assembly passed a general election law, in which it provided for the filing of certificates and petitions of nomination before election. Acts 1891-92-93, c. 65, p. 106. Section 11 of article 3 of the act provided that "certificates and petitions of nomination herein directed to be filed with the clerk of a county shall be filed not more than sixty and not less than fifteen days before election." This section became section 1456 of the Kentucky Statutes, and was so numbered in Carroll's 1909 edition of the statutes. In 1912 the Primary Election Law was passed. Acts 1912, c. 7, p. 47. Section 26 of that act as amended in 1914 (Acts 1914, c. 83, pp. 399, 422) became section 1550-26 of Carroll's Kentucky Statutes, and reads in part:
"On the third day after the close of any primary nominating election the county election commissioners of each county shall proceed to canvass the returns of said primary election and tabulate the same. The tabulation of votes for all offices for which the nomination papers are required to be filed in the county court clerk's office shall be on another separate sheet of paper for each political party and shall be filed in the county court clerk's office immediately after the canvass of the returns and tabution of the votes by said election commissioners; and certificates of nomination shall immediately issue to the persons receiving the greatest number of votes for the offices for which they were candidates. And said certificate shall not less than fifteen days next before the day on which the general November election is held, be filed with the county clerk."
In 1918 (Acts 1918, c. 37) the General Assembly passed an act known as the Absent Voters Act, which amended section 1456 of the Statutes by increasing the minimum time for filing certificates of nomination with the county clerk from 15 days to 45 days. In Clark v. *Page 466
Nash, 192 Ky. 594, 234 S.W. 1, 19 A.L.R. 304, the Absent Voters Law was held invalid as to its provisions for voting by absentees.
It is contended for appellee that the Acts of 1912 and 1914 providing for the nomination of candidates by political parties at primary elections marked a change of policy on the part of the state of Kentucky, and had the effect of repealing section 1456 which related to filing party primary and party convention certificates of nomination, and that since their enactment section 1456 has stood repealed, and could not be amended or re-enacted in the manner attempted by the 1918 act; but that, if this is not true, then the effect of the holding that the Absent Voters Law, in so far as it provided for voting by absentees, was invalid, was to leave section 1456 unchanged and unamended and the minimum of 15 days for filing certificates of nomination in force.
It is argued that the sole purpose of the Legislature in amending section 1456 by the 1918 act was to make effective the Absent Voters Act, and that the Legislature would not have amended the statute and increased the minimum time for filing certificates of nomination from 15 days to 45 days before the election except for the purpose of making the Absent Voters Act workable, and, when the Absent Voters Act failed, the attempted amendment of section 1456 also failed, because it was an inconsequential provision intended solely to aid in the administration of the whole act, and the Legislature did not contemplate the operation of this inconsequential provision, if the main portion of the act should be declared inoperative. Neutzel v. Williams, 191 Ky. 351, 230 S.W. 942, and other similar cases are cited in support of this contention.
It is conceded by counsel for appellee that this court in Schnabel v. Sutton, 213 Ky. 116, 280, S.W. 488, 489; Morgan v. Revis, 215 Ky. 30, 284 S.W. 111; Lewis v. Mosely, 215 Ky. 573,286 S.W. 793; Combs v. Dixon, 215 Ky. 566, 286 S.W. 797; and Baker v. Marcum, 216 Ky. 210, 287 S.W. 696, has treated section 1456 as requiring a minimum of 45 days before the election for filing certificates of nomination with the county clerk, but it is insisted that the question as to the validity of the 1918 amendment was not presented in either of those cases.
The question raised by counsel for appellee is an interesting one, but we deem it unnecessary to determine it, in view of our conclusion that appellee filed his *Page 467
certificate of nomination with the county clerk more than 45 days before the election, in substantial compliance with the law, conceding for the purposes of this opinion that the minimum time required is 45 days.
Appellee testified that on or before the 16th day of September, which was more than 45 days before the election, he went to the county clerk's office for the purpose of obtaining and filing his certificate of nomination. He found the clerk in the vault of the office, in conversation with the county judge, Hon. Ben C. Allin. The certificate was then in the book in which it had been left by the election commissioners and in the possession of the clerk. He told the clerk that he wanted to get and file his certificate, and the clerk replied that "there was no necessity, that 15 days prior to the election would be sufficient." The appellee gave the matter no further attention until October 7, which was more than 15 days, but less than 45 days, before the election, when he went to the clerk's office to ascertain whether or not the certificate had been indorsed "filed." He learned that it had not been so indorsed and Miss Menaugh, the deputy clerk, handed him the certificate, and told him to hand it back to her, which he did. She then indorsed thereon, "Filed October 7, 1929." It was not necessary for the appellee to have manual possession of the certificate. It was in the clerk's possession, and all that was required of appellee was to request the clerk to file it. This he did in effect in September. Even this requirement, where the certificate is in the possession of the clerk, is highly technical, and, when the clerk has received a communication from the candidate entitled to the certificate that he desires it to be filed, the technical requirement has been sufficiently complied with. The testimony of appellee as to what occurred when he went to the clerk's office in September, 1929, is uncontradicted, though the clerk and Judge Allin state they do not remember the conversation related by appellee. However, they do not deny that it occurred. They both admit that they were in the vault in the clerk's office, and that some one came in the vault while they were engaged in conversation, and that they had been discussing the law governing the filing of nomination certificates. Judge Allin had stated to the clerk that he was of the opinion they should be filed 45 days before the election, but the clerk examined the statute, and concluded that 15 days before the election was the minimum time required. *Page 468
The facts in this case are very similar to the facts in Schnabel v. Sutton, supra. In that case the candidate went to the clerk's office for the purpose of filing the certificate of nomination. He presented his certificate, and the clerk said: "I don't see any use of you filing these certificates of nomination; we will have two duplicates of that in this office. Some of them in the office have never been torn out and I don't think it will be necessary for you to file them." Sutton left the office with his certificate which was not indorsed "filed." His election was contested on the ground that he failed to file his certificate 45 days before the election, and therefore forfeited his nomination. In holding that Sutton had substantially complied with the law relating to filing certificates of nomination, we said:
"The clerk is not required to make any record of his filing, except the indorsement upon the certificate itself, and we have held that, if he receives the certificate from the candidate, this is sufficient; and the candidate is not required to see that he indorses the word 'filed' upon it, though he might mandamus the clerk to so indorse the certificate and to place his name upon the ballot. See Daniel v. Blankenship (177 Ky. 726, 198 S.W. 48), supra. Further, it must not be overlooked that duplicate certificates are also evidence of party nominations, and that while, perhaps, the clerk is not the legal custodian of the records of the election commissioners and is not chargeable with notice of their contents, still if he does take actual possession of the certificates and so informs the candidate, and for that reason declines to accept and file a certificate that is duly presented to him within the proper time by the latter, assuring him that he will, from the evidence in his possession, print his name upon the ballot, and actually does so, this should be sufficient. If (under such circumstances) the clerk fails to print his name upon the ballots, he may mandamus him to do so, and, as ancillary thereto, require proper filing of the certificate, but a mandamus would hardly lie while the clerk was doing the thing he sought, and which, in this case, was the proper thing for him to do. Also we should bear in mind that party nominations are matters of general concern, and that the popular will, as manifested in *Page 469
such nominations, is entitled to consideration. If the candidate has been legally nominated, he is the representative of his party; and, while the law is mandatory as to the time in which he may file his certificate, it should be liberally construed as to the manner of filing, as it would be manifestly unjust to deprive a party of its legal nominee by a trivial error occurring at the time of filing the certificate. It follows that appellee's name was properly placed upon the ballot, and the votes received by him are not vitiated in any respect by the action of the clerk in the premises."
This case cannot be distinguished from the Sutton case, and on the authority of that case we are of the opinion that appellee substantially complied with the statute requiring the filing of the certificate. The clerk had his certificate in his possession, and received notice more than 45 days before the election that appellee desired to file it. The appellee had done all that was required of him, and his act amounted to a filing in law.
Wherefore the judgment is affirmed.
Whole court sitting, except Judge LOGAN, who was absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447749/ | Reversing.
Appellee, Bill George, was employed by the Inland Steel Company, at Wheelwright, Ky., during 1931 and until February 19, 1932. On January 1, 1931, George became insured for $1,000 under a group life insurance policy carried for the benefit of its employees by the Inland Steel Company in the Equitable Life Assurance Society. The policy provides for the payment of $1,000 to George's beneficiary if he should die while employed Inland Steel Company, and that it should be paid to George himself, in lieu of death benefits, if, while the policy is in force, he should become "totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value." The policy further provides that "upon receipt of due proof of such disability before the expiration of one year from the date of its commencement," the Equitable will pay the benefits therein provided.
George had a cough for four or five months before he quit work in February, 1932, and he claims that by reason of this cough he was unable to sleep at night. No physician treated him for this cough, and he made no claim that he was unable to work prior to February 19, 1932, when he left the employment of the Inland Steel Company. The time sheets of his employer indicate that he worked full time at full pay until the day he severed connection with the Inland Steel Company. George had likewise suffered for a number of years from a right inguinal hernia, but asserts no claim of disability on this score. Almost a year after quitting work George was examined by a Dr. Ramey, who found that he was *Page 833
suffering from the hernia, chronic bronchitis, hardening of the arteries, and conjunctivitis. In October, 1934, George was examined by a Dr. Stephens, who found the hernia, high blood pressure and some hardening of the arteries, together with the chronic bronchitis and inflammation of the eyes. Both doctors gave it as their opinion that George was totally and permanently disabled, within the meaning of the policy, at the times when they examined him, but neither of them undertook to say that this disability commenced within the time when George was employed by the Inland Steel Company and the policy was in force. Dr. Stephens based his opinion of George's total disability upon the condition of his blood pressure and on the hernia. He thought that the bronchitis might respond to treatment. Dr. Ramey did not undertake to specify which particular ailments formed the basis of his opinion as to George's total disability, but declined to state definitely whether or not the chronic bronchitis might be cured. He said, however, that it seemed to have existed for perhaps as much as six months prior to the date of his examination in February, 1933. This, of course, did not fix its inception within the time when the policy was in force.
The appellant contends that the judgment must be reversed for the reasons (1) that it received no due proof of disability before one year from the date of its commencement, and (2) that there was no evidence that George was totally and permanently disabled on or prior to February 19, 1932.
Appellant relies on the numerous decisions of this court sustaining its right to demand due proof of disability "before the expiration of one year from the date of its commencement." Equitable Life Assurance Society v. Adams, 259 Ky. 726, 83 S.W.2d 461, 463; Equitable Life Assurance Society v. Daniels,261 Ky. 351, 87 S.W.2d 960; Equitable Life Assurance Society v. Elkins, 261 Ky. 591, 88 S.W.2d 37; Equitable Life Assurance Society v. Skaggs, 262 Ky. 535,90 S.W.2d 731. The facts presented here, however, show, at least prima facie, that the insurance company waived its right to insist upon due proof of loss through an unequivocal denial of all liability under the policy. Under date of February 1, 1933 (within one year after the commencement of the claimed total disability), George's attorney wrote a letter *Page 834
to the appellant insurance company and sent a copy of it to the Inland Steel Company, in which he asserted that George had become totally and permanently disabled on February 19, 1932, and requested that necessary blanks for proof of claim be sent to him. Under date of February 11, 1933, the superintendent of the Inland Steel Company wrote to the attorney, saying: "We have gone over all circumstances in connection with this case, and we cannot file a claim for him for permanent disability within the meaning of the policy." Under date of February 17, 1933, the insurance company acknowledged receipt of the attorney's letter of February 1, but did not send him the necessary papers for proof of loss. On the contrary, it requested the attorney to get in touch with the chief clerk of the Inland Steel Company at Wheelwright "for all further information in this connection." There is no further evidence to show any agency between the appellant insurance company and the Inland Steel Company or to show that the insurance company authorized the refusal by the steel company to file a proof of claim. Certainly, however, in the absence of some evidence to show that the steel company was not authorized to deny liability on its behalf, the letter from the insurance company directing the claimant to consult the chief clerk of the steel company, and the insurance company's failure to furnish the blanks for proof of loss as requested, when coupled with the prior refusal of the steel company to act, show at least prima facie a waiver of the right to demand due proof of disability. Equitable Life Assurance Society v. Witten, 265 Ky. 448, 97 S.W.2d 17, decided October 6, 1936.
The only evidence indicating that George was disabled on or prior to February 19, 1932, rests in the testimony of George himself to the effect that for four or five months prior to the time that he ceased to work for the Inland Steel Company his cough was so bad that he could not sleep at night and that he was therefore unable to work. There is nothing in this testimony to indicate that the disability arising therefrom was total or permanent. No matter how completely disabled he might have been at that time, it was not such a disability as is contemplated in the policy, unless it was both total and permanent. The medical testimony concerning George's disability relates to a period in one case almost *Page 835
a year after the policy expired, and in the other case approximately eighteen months after the policy expired. Neither of the doctors who testified undertook to rest their conclusions of George's disability on the fact of his bronchitis alone. On the contrary, one of the doctors, at least, considered the bronchitis to be a minor ailment, and based his conclusion of total and permanent disability entirely on high blood pressure and the hernia. As set out above, the hernia had existed for many years prior to the issuance of the policy, and there is no showing whatever that the high blood pressure existed prior to the date of the examination made of George in February, 1933. There was, therefore, an utter failure to prove that George became totally and permanently disabled while the policy was in force. This was an essential link in his case. Under the circumstances, it is clear that the appellant was entitled to have its motion for a peremptory instruction sustained.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447750/ | Affirming.
On October 6, 1925, S.F. Davis and Hallie E. Davis executed and delivered to A.W. Burnell a mortgage on a house and lot near Berea, Ky., and their two-thirds undivided interest in 27 acres of land located in Madison county, to secure the payment of a note for $1,000 due 6 months after date. After the mortgage was executed, Hallie E. Davis married Marshall Johnson, and S.F. Davis married the appellant Mollie Davis. The note was not paid, and on October 2, 1933, Burnell brought an action to recover the sum of $1,000, with interest thereon from April 6, 1929, and he asked that he be adjudged a lien on the mortgaged property and that same be sold, or a sufficient amount thereof, to pay his debt, interest, and costs. J.M. Kinnard had a second mortgage on the property, and he was made a defendant. A default judgment was entered, and the master commissioner was directed to sell so much of the property as might be necessary to satisfy the debt, interest, and costs. The property was sold by the master commissioner on April 2, 1934, after he had advertised it as directed by the order of sale, and S.F. Davis became the purchaser at the price of $1,450. He executed a bond for that amount to the master commissioner, due 6 months after date, and J.M. Kinnard signed the bond as surety. Davis failed to pay the bond when it was due. J.M. Kinnard, the surety, was out of the state at that time, and upon his return in January, 1935, he paid to the master commissioner the sum of $1,483, the amount of the bond, with interest thereon. An order was then entered directing the master commissioner to pay to the plaintiff, A.W. Burnell, his debt, interest, and costs, and to return the balance, if any, to J.M. Kinnard, surety on the bond. On January 24, 1935, J.M. Kinnard had a notice served on S.F. Davis that he would, on February 5, 1935, make a motion before the judge of the Madison circuit court to direct the master commissioner to execute to him a deed to the property that had been sold. On February 5, 1935, such a motion was filed in the Madison circuit court, but it does not appear that the court ruled on it. On March 5, 1935, Kinnard had a notice served on Davis that on March 18, 1935, he would make a motion before the judge of the Madison circuit court for an order of resale of the property in order that he might be reimbursed *Page 430
for the money paid by him as surety. The motion was filed on the day fixed in the notice, and the following order was entered:
"It appearing to the Court that the sale bonds executed by S.F. Davis as principal and J.M. Kinnard, as surety, on April 2, 1934, upon the failure and refusal of S.F. Davis to pay same have been fully paid by the surety, J.M. Kinnard, together with costs of this action.
"It is hereby ordered that the Master Commissioner be and he is hereby directed to resell said house and lot and other lands sold under order of this Court on April 2, 1934, and upon the same terms as same was heretofore sold; and he shall duly advertise same as required by law and sell upon a date to be selected by him as early as possible.
"This sale is made for the purpose of reimbursing J.M. Kinnard for the amount of money he paid on sale bonds, interest and costs, and for interest on all his outlay from the date thereof until he is reimbursed, and for all costs herein expended."
The sale was held at 10 o'clock a. m. May 6, 1935, and J.M. Kinnard became the purchaser, his bid of $1,000 being the highest bid received. He executed a bond to the master commissioner, due 6 months after date, with J.W. Johnson as surety. On the same day the master commissioner filed his report of sale. No exceptions to the report of sale were filed, but on May 7, 1935, S.F. Davis filed a motion to stay all proceedings during the pendency of his petition in bankruptcy in the United States District Court. In the motion he stated that he had filed a petition in the United States District Court for the Eastern District of Kentucky at Richmond, Ky., under section 75 of the Bankruptcy Act, asking for a composition with his creditors or an extension of time to pay his debts, and that the petition was filed May 6, 1935, at 4 p. m. He also filed a motion to set aside the judgment and order of sale entered March 18, 1935, on the ground that it was void. On October 9, 1935, copies of certain orders in the bankruptcy proceeding pending in the United States District Court were filed in the Madison circuit court, and Davis again moved that all proceedings in that court be stayed. On *Page 431
February 8, 1936, an order was entered confirming the master commissioner's report of sale filed May 6, 1935, and directing the commissioner to execute a deed to J.M. Kinnard, conveying to him the house and lot sold May 6, 1935. Kinnard was also given a judgment against Davis for $483, the balance due and his costs. S.F. Davis and Mollie Davis, his wife, have appealed.
Appellants contend that the judgment is void because there was no assignment of the debt and mortgage by A.W. Burnell to J.M. Kinnard, the surety on the sale bond, and also because the Madison circuit court was without jurisdiction of the subject matter during the pendency of the bankruptcy proceeding. By section 1012, Kentucky Statutes, a sale bond has the force of a judgment, and its performance may be summarily enforced by orders of the court. Section 4665 of the Kentucky Statutes reads in part:
"If a surety pays the whole or any part of a debt or liability for which he is bound as such, he may recover the amount, with interest from time of payment, from the principal by action at law, or by motion after ten days' notice in writing."
Section 4666 provides that the surety who pays the whole or part of a judgment shall have the right to an assignment thereof from the plaintiff or the plaintiff's attorney in whole or in part.
It is appellants' contention that these sections of the statute preclude a surety from proceeding against the principal by motion until he has obtained an assignment of the judgment. These statutes have been construed contrary to appellants' contention in Kellar v. Williams, 10 Bush 216; Sanders Walker v. Herndon, 122 Ky. 760, 93 S.W. 14, 15, 29 Ky. Law Rep. 322, 5 L.R.A. (N.S.) 1072, 121 Am. St. Rep. 493; Vansant's Ex'x v. Gardner's Ex'x, 240 Ky. 318, 42 S.W.2d, 300. Independent of statutory regulations, although there is some authority to the contrary, a surety who pays a judgment against his principal is substituted to the rights of the creditor by operation of law, and an actual assignment of the debt is unnecessary. Lidderdale's Ex'rs v. Robinson, 12 Wheat. 594,6 L. Ed. 740; Fleming v. Beaver, 2 Rawle (Pa.) 128, 19 Am. Dec. 629; Townsend v. Whitney, 75 N.Y. 425; Brown v. Black, 96 Pa. 482; Pomeroy's Equity Jurisprudence, (4th Ed.) *Page 432
vol. 5, sec. 2343; 25 Rawle C. L. 1320. In Brandt's, The Law of Suretyship and Guaranty (3d Ed.) vol. 1, p. 611, the author says:
"In cases where the person paying the debt or performing the obligation of another stands in the relation of surety or guarantor to the person whose debt or obligation has been performed, equity substitutes him in the place of the creditor or obligee as a matter of course, without any special agreement to that effect and without requiring any further showing to be made of circumstances entitling him to subrogation."
In Stearns on Suretyship (2d Ed.) p. 442, it is said:
"The generally accepted view now is that where a judgment is paid by one who is collaterally liable as surety, whether the creditor has a joint judgment against the principal and surety, or separate judgment against them or a judgment against the principal only, the surety paying is subrogated to all the rights and liens of the creditor under the judgment with the same position of priority occupied by the creditor."
See, also, Ft. Jefferson Improvement Co. v. Dupoyster,112 Ky. 792, 66 S.W. 1048, 24 Ky. Law Rep. 1199, 2 L.R.A. (N.S.) 263; Bickel v. Judah, 3 Ky. Law Rep. 728, 11 Ky. Op. 612; Highland v. Anderson's Adm'r, 17 S.W. 866, 13 Ky. Law Rep. 710.
Under sections 4665 and 4666 of the Kentucky Statutes, a surety who has paid the whole or a part of a judgment may proceed summarily by motion or by an action at law against the principal, but these Statutes do not restrict the equitable doctrine of substitution. In Sanders Walker v. Herndon, supra, the court said:
"Section 4666 of Kentucky Statutes of 1903 applies to sureties who have paid a judgment rendered upon a debt to which they were parties. It allows such judgment to be assigned for the benefit of the surety or sureties so paying it, and it gives to them control of the judgment for their benefit against the other defendants, so far as to obtain satisfaction from the principal for the whole amount so paid by the sureties with interest, or from any co-surety his *Page 433
proper part of such payment according to the principles stated in section 4665. These sections of the statute were not intended to restrict, but to enlarge, the equitable doctrine of substitution and the common-law doctrine of contribution."
If the sale bond had not been paid, Burnell, the judgment creditor, could have had a readvertisement and resale of the property, and Kinnard, the surety, having paid the judgment, can invoke all the remedies open to the judgment creditor.
After the master commissioner had filed his report of sale, the appellants filed in the Madison circuit court a copy of an order of the United States District Court for the Eastern District of Kentucky in which A.M. Burnell, J.M. Kinnard, and R.B. Terrill, master commissioner of the Madison circuit court, were enjoined from proceeding further toward the sale of the property of S.F. Davis. It does not appear that a copy of this order was ever served on any of these parties. Counsel for appellee in his brief quotes a purported order of the federal court dismissing the petition of S.F. Davis on the ground that he had failed and refused to make his creditors a good-faith proposition for a composition or extension of his debts. A copy of such an order does not appear in the record in this case, but there is a copy of an order entered September 30, 1935, in the United States District Court for the Eastern District of Kentucky setting aside and holding for naught that part of the order of September 21, 1935, which referred the matter to the conciliation commissioner, acting also as a referee under the Bankruptcy Act as amended August 28, 1935. It appears that the proceedings were discontinued in so fat as relief was sought under section 75 (s) of the Bankruptcy Act (as amended), and were continued under section 75 (b) of the act (as amended), 11 U.S.C.A. sec. 203 (s, b). This, in effect, set aside that part of the order of September 21, 1935, which granted the injunction. It follows that the Madison circuit court had jurisdiction to enter an order confirming the master commissioner's report of sale.
Appellants complain because the order of resale did not describe the property and did not set out the terms of sale. The order of resale referred to the order pursuant to which the first sale was held, and the master *Page 434
commissioner was directed to sell the property therein described and upon the same terms, and to advertise same as required by law. The reference to the former order, which was a matter of record, sufficiently specified the terms.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447751/ | Affirming.
The plaintiff Thompson, sued for personal injuries, his action was dismissed, and he has appealed. The Wisconsin Steel Company operates a coal mine at Benham, Kentucky, and during the year 1914 had in its employment Clifford M. Thompson. It employed several colored men in and about its mines, and some of these colored men had formed a habit of coming to the shop and drinking out of the dipper or cup prepared and kept for the use of the white employees. It is alleged that in order to stop this, the superintendent of the Wisconsin Steel Company attached to the cup a wire in such a way that the cup became charged with electricity. Without knowledge of this condition, Thompson, who had become thirsty, came to get a drink, and when he picked up this cup, he received an electric shock of such violence that it resulted in the permanent loss of the use of his arm. In 1924 Thompson sued the Wisconsin Steel Company for $10,000.00 for the injuries thus inflicted upon him, alleging that it had failed to furnish him a reasonably safe place to work, and that as a result, he had been subjected *Page 222
to a current of electricity of great voltage, and had sustained the loss of his arm. The Wisconsin Steel Company demurred to the petition, and without waiving its demurrer, filed three paragraphs of answer. The first was a general denial, the second a plea of contributory negligence, and the third was a plea of limitations. Thompson demurred to the answer and without waiving his demurrer, filed a reply denying the contributory negligence and pleading that after receiving the injuries complained of and within a year thereafter, the Wisconsin Steel Company sought and importuned plaintiff into settling the case with them for and in consideration of his re-employment and a promise that if his injuries should prove to be permanent, to pay what was right for the injuries; that he did return to work under such conditions, and after having been employed for a time, was discharged, and with and as a part of his reply, he filed the following:
"Wisconsin Steel Company, Benham, Ky.
"In case of permanent injury resulting from shock in shop to Clifford M. Thompson, the company hereby agrees to come to a lump sum settlement, whatever can be agreed upon at the time it is deemed a permanent injury by a practicing physician.
"WISCONSIN STEEL COMPANY, By W.C. TUCKER, Supt."
To this reply, the Wisconsin Steel Company filed a demurrer and upon consideration thereof, the court sustained the demurrer to the reply, and the plaintiff declining to plead further, the court dismissed his petition. This was properly done because the plaintiff should have brought his action upon this writing.
In Gilmore v. Green, 77 Ky. (14 Bush) 772, we find:
". . . when a new promise is made before the statute has barred an action on the original liability, no action can be maintained on such new promise, unless it was intended by the parties to take the place of the original liability and to discharge the debtor front liability thereon, and in that case the action must be on the new promise, and the period of limitation to that action will be determined by the character of the evidence of the new promise." *Page 223
This statement of the law fits this case exactly. These parties had in contemplation the plaintiff's probable recovery within a reasonable time, and made provision by this writing to preserve the rights of plaintiff in event he did not recover. It took the place of the former cause of action, if any, and he should have brought his suit upon it.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448147/ | Affirming.
Jake Osborne and the other owners of a farm of 116 acres in Estill County brought suit against J.M. Durbin and J.D. Crabtree, who held an oil lease on this farm, to recover $1003 under the terms of the lease for delay in drilling thereon. The plaintiffs in that action sued out a general order of attachment which was levied upon the drilling machine and equipment of Durbin Crabtree. They recovered judgment for $745, the attachment was sustained and the attached property was ordered to be sold, but the judgment was superseded *Page 414
and on appeal was reversed and we held that the plaintiffs had no cause of action. Durbin v. Osborne, 292 Ky. 464,166 S.W.2d 841.
After the judgment was entered on the mandate dismissing the petition and discharging the attachment, Durbin and Crabtree instituted this action against Jake Osborne and Tom Crouch, the principal and surety on the attachment bond, to recover $1220 for the wrongful attachment of their property. A jury trial resulted in a verdict for plaintiffs for $500 and defendants seek a reversal of the judgment on ten grounds, which may be reduced to five: 1. A general demurrer should have been sustained to the petition. 2. A verdict should have been directed for defendants as the sheriff never levied the attachment upon or deprived plaintiffs of the possession of their property. 3. The verdict is excessive. 4. Incompetent evidence was admitted. 5. The instructions are erroneous.
It is argued that the petition is detective in that it pleaded the sheriff's return which shows that the drilling machine and equipment were never levied upon and that the sheriff left same on the Osborne lease. The sheriff's return on the attachment reads:
"Executed April 25, 1940, by delivering a true copy of the within order of attachment to J.D. Crabtree and by attaching one drilling machine and equipment, leaving same on the farm of Robert Osborne, itemized list attached."
Defendants insist that this return does not show that the sheriff ever took the property into his possession and to constitute a lawful attachment it was necessary for that officer to do some act for which he could be successfully prosecuted as a trespasser if it were not for the protection afforded him by the writ under which he was acting.
It is true that the attaching officer must take possession of the property in such a manner as to constitute a trespass if he were not acting under the writ. But this does not mean that he must take manual possession of the property. It is sufficient if at the time of the levy the property be under the sheriff's control or dominion and that he indicate the levy by word or deed or by showing it in his return on the writ. It is not necessary *Page 415
to the validity of an attachment that the sheriff remove bulky property, or property difficult of removal, from the place in which it is found. 4 Am. Jur., Attachment and Garnishment, secs. 540 and 537, pp. 880 and 877; Hill v. Harris, 10 B. Mon. 120, 49 Ky. 120, 50 Am. Dec. 542.
It would have been better form had the return read: "* * * by levying upon and taking possession of one drilling machine and equipment, as shown by the itemized list attached, and leaving same on the farm of Robert Osborne," rather than by wording it as the sheriff did in his return set out above. Yet, in substance there is very little difference in the return as actually made and as we say it should have been made. The sheriff took control of this cumbersome machinery, although he left it on the lease in the actual possession of the present plaintiffs, and as his return in effect noted this action on his part we hold that the order of attachment was levied upon the machine and equipment.
The evidence is conflicting as to the rental value of this drilling rig. According to the evidence for the plaintiffs the rig did good work and its rental value was from $15 to $25 per day. The evidence on behalf of defendants was that the machine was worthless and had no rental value. Clearly, therefore, the value of the use of the machine, or its rental value, was a question for the jury.
Defendants argue that plaintiffs did not show that they could have operated this machine at a profit and that from the evidence it was highly speculative whether or not they could have, hence no recovery should be allowed in such circumstances. It would appear that defendants lose sight of the fact that this is not an action to recover profits lost by reason of the machine being attached, but is brought upon the attachment bond for the loss of the use of the machine during the period its owners were prevented by the levy of the attachment from using it.
Relying upon the case of Carr v. Wood, 103 S.W. 314, 31 Ky. Law Rep. 708, defendants insist that plaintiffs' damage for the loss of the use of the machine cannot exceed the value of the machine, which they contend the evidence shows was $300. But Durbin testified *Page 416
the machine was worth $700 and if the jury accepted his testimony, the verdict does not exceed the value of the machine.
The drilling rig was held under attachment from April 25, 1940, until in February, 1943, when judgment was entered on the mandate reversing the original judgment which sustained the attachment and allowed Osborne a recovery of $745 against Durbin and Crabtree. It was testified by Durbin that he used the rig on the Osborne lease after it was attached, hence he cannot recover for the loss of the use of the rig on this lease. He further testified that just prior to the time Jake Osborne made an affidavit on Oct. 25, 1941, asking a rule against him, he started to remove the rig to Granny Richardson's to drill a well for himself and J.P. Perry, and that the attachment prevented him from removing it. As plaintiffs were thus deprived of the use of their rig from October 25, 1941, until February 1943, we cannot say under the facts presented in this record that the verdict of $500 is excessive for the loss of the use of the rig for that length of time.
The incompetent evidence complained of is that. Durbin testified he was prevented from removing the machine by the Judge of the Estill Circuit Court, and defendants insist that the Judge made no order preventing the removal of the machine. It is true that a court may only speak through its orders, but there is filed in this record an affidavit of Jake Osborne to the effect that Durbin had sold or disposed of the attached property and asked that a rule be issued against him. Thereupon, the court entered an order directing Durbin to appear and show cause why he should not be punished for contempt. Certainly, it was competent for Durbin to testify that this rule issued by the court deterred him from removing the attached property from the Osborne lease.
The criticism of the instructions is not well taken. The defendants argue that the jury should have been told to exclude the time during which plaintiffs rendered the machine useless by voluntarily disposing of the equipment and not to allow any damages for the loss of the use of the machine during such interim. In the first place, there is no testimony upon which to base such an instruction. Durbin testified he loaned some *Page 417
of the equipment to friends but could have gotten it back immediately upon the release of the machine. In the second place, the instruction was good so far as it went and if defendants desired an instruction covering the point that plaintiffs were not entitled to recover damages for the time during which the machine was not capable of being used, due to their lending the equipment, they should have offered such an instruction. It is true that when the court gives an instruction sua sponte (as he did here) it is incumbent upon him to correctly instruct, but this does not mean that he must instruct on all issues in the case unless requested to do so. Whitehead's Adm'r v. Peter Knopf's Sons, 262 Ky. 493,90 S.W.2d 709, 712.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128433/ | 538 U.S. 940
YARBROUGHv.LIFETOUCH NATIONAL SCHOOL STUDIOS ET AL.
No. 02-7488.
Supreme Court of United States.
March 24, 2003.
1
Petition for rehearing denied. 537 U. S. 1163. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1041499/ | argument at the hearing and submitted the matter on the briefs. The
district court noted the "unusually thorough canvass" conducted by the
hearing master at Chorzempa's arraignment, where he was properly
advised and indicated that he understood his eligibility for probation and
the district court's sentencing discretion. The district court also noted that
Chorzempa was properly advised by the plea agreement memorandum.
We conclude that Chorzempa failed to satisfy his burden and prove that
his plea was invalid, see Molina v. State, 120 Nev. 185, 190, 87 P.3d 533,
537 (2004), and the district court did not abuse its discretion by denying
his motion, Johnson v. State, 123 Nev. 139, 144, 159 P.3d 1096, 1098
(2007) ("This court will not reverse a district court's determination
concerning the validity of a plea absent a clear abuse of discretion.").
Accordingly, we
ORDER the judgment of conviction AFFIRMED. 2
Gibbons
2 The fast track statement and reply fail to comply with NRAP
3C(h)(1) and NRAP 32(a)(4) because they do not contain 1-inch margins on
all four sides and the footnote in the fast track statement is not "in the
same size and typeface as the body of the brief," NRAP 32(a)(5). The fast
track response does not comply with NRAP 3C(h)(1) and NRAP 32(a)(4)
because the text is not double-spaced. Counsel for the parties are
cautioned that the failure to comply with the briefing requirements in the
future may result in the imposition of sanctions. See NRAP 3C(n).
SUPREME COURT
OF
NEVADA
2
(0) 1947A
cc: Hon. Jerome T. Tao, District Judge
Herbert Sachs
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
(0) 1947A | 01-03-2023 | 09-20-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3448148/ | Affirming.
The material question before the court is whether a soldier under 21 years of age by will could change the beneficiary named in a policy or certificate of National *Page 461
Service Life Insurance or in a "death gratuity" granted by the Government.
Philip Owens, then barely 19 years of age, executed a will on September 2, 1944 shortly before he went overseas. He was killed in action three months later. The pertinent provision of that instrument is as follows:
"My mother Lucy Owens, will be given my automobile all other personal property. I also designate her as my beneficiary on my $10,000 National Service Life Insurance. She will also receive my six month death gratuity in the event that I die while in the U.S. Army. She will be given all benefits and gratuities to which I may become entitled."
Young Owens had originally designated his wife, Ama G. Owens, and his mother, Lucy Owens, as joint beneficiaries in the insurance.
The paper was admitted to probate by the county court of Russell County, the soldier's home. On appeal by his widow, the circuit court held the instrument of no effect because Owens was not 21 years of age. The judgment rests upon KRS 394.030, which is quoted for ready reference: "No person under twenty-one years of age can make any will, except in pursuance of a power specially given to that effect, and except also, that a father, though under twenty-one years of age, may by will appoint a guardian for his child."
Unless permitted by the terms of the policy, no insured may change the beneficiary by a will even though the contract reserves the right to change the beneficiary, the mode prescribed in the policy being the exclusive method. Parks' Executor v. Parks, 288 Ky. 435, 156 S.W.2d 480. We have held specifically that an instrument executed by a minor as a will undertaking to make a testamentary disposition of the proceeds of a group insurance policy was ineffective under the statute. Metropolitan Life Insurance Co. v. Brown's Adm'r, 222 Ky. 211,300 S.W. 599.
The appellant submits that this instrument, which was executed with proper formalities by her minor son, comes within the provision of the statute as being "in pursuance of a power specially given to that effect." It would seem that this provision has reference only to a *Page 462
power of appointment, which is, broadly speaking, the execution of an express agency conferred by a settlor or donor of the power who is a person possessed of testamentary capacity. It is not the disposition of the minor's own property. Cf. Roby v. Arterburn, 269 Ky. 816, 108 S.W.2d 873. It is generally recognized that an infant may execute a collateral power but may not execute a power appendant, the execution of which will affect his property. 41 Am. Jur., "Powers," section 34. We have held that a provision in a deed conferring upon an infant grantee the right to convey the property implies only the power to do so when the grantee becomes of age. Sewell v. Sewell,92 Ky. 500, 18 S.W. 162, 36 Am. St. Rep. 606. But if the term used in the statute should be construed as embracing the exercise of any kind of authority or right possessed by the minor, as the appellant claims, still it would not avail in this case.
Neither the certificate or policy of insurance, or the terms of the "death gratuity," is in the record for the reason, as stated in appellant's brief, that she had never received the same. But the terms are to be found in the federal statute and regulations.
The new system of insurance provided by the National Service Life Insurance Act of 1940, 54 Stats. at Large 1008, 38 U.S.C.A. sec. 801 et seq., is different in material respects from the War Risk Insurance Act of September 2, 1914 and its amending acts. 38 Stats. at Large 711, chapter 293; 43 Stats. at Large 607, chapter 320, 38 U.S.C.A. sec. 421 et seq. All of these acts are to be found and distinguished in Annotations, 147 A.L.R. 1185. The former act and regulations thereunder permitted a change to be made in the beneficiaries by will, even by a minor. Note 55 A.L.R. 587; 73 A.L.R. 327; 81 A.L.R. 937; Helmholz v. Horst, 6 Cir., 294 F. 417, affirming Horst v. United States, D.C., 283 F. 600. The act under which the insurance was issued to the decedent Owens gave the right to him to change the beneficiaries within the permitted classes (which include both mother and wife) but it was "subject to regulations." The regulations under the National Service Life Insurance Act deny the right to make a testamentary change in beneficiaries. Federal Register vol. 6, No. 40, p. 1162; 147 A.L.R. 1241, 1254. Regulation section 10.3446 is in part as follows: "A *Page 463
beneficiary designation shall be made by notice in writing to the Veterans' Administration signed by the insured. An original beneficiary designation may be made by last will and testament duly probated, but no change of beneficiary may be made by last will and testament."
The statute and regulations have been construed in the same way as similar provisions in ordinary insurance contracts; namely, that if the insured has done everything reasonably within his power to accomplish this purpose, leaving only ministerial acts to be performed by the insurer, courts of equity will treat as done that which ought to be done, giving effect to the intent of the insured. Bradley v. United States, 10 Cir., 143 F.2d 573; Note, 152 A.L.R. 1445.
In this case insured did nothing towards complying with the regulations governing the change of beneficiary. Therefore, if the provision in KRS 394.030 extending the right to a person under 21 years of age to execute a valid will "in pursuance of a power specially given to that effect" should be held, under a liberal construction, to embrace the power to change a beneficiary in an insurance policy, still it would not apply in the present case. There was no power to be exercised except in the way provided by the federal law and regulations.
As to the so-called "death gratuity," the burden was upon the appellant to show that its provisions were of such character as would make the exception in the statute applicable and it was not met.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448150/ | Affirming.
The Attorney General has entered a motion to strike the bill of exceptions from the record in this case and to dismiss the appeal on the ground that the record was not filed in time. He suggests that the transcript must be filed in the office of the clerk of the Court of Appeals within 60 days after the judgment was entered in the circuit court. This question was disposed of in the case of Commonwealth v. Crouch, 170 Ky. 772,186 S.W. 674, where it was held that the transcript of the record may be filed with the clerk of the Court of Appeals within 60 days after the bill of exceptions is made a part of the record. It is suggested by the Attorney General that the transcript does not show that the bill of exceptions was made a part of the record by order, but in that he appears to be mistaken as there is an order showing that the bill of exceptions was signed and approved by the court and made a part of the record. It is next suggested by the Attorney General that time was given until a day certain at the next term after the trial in which to file a bill of *Page 26
exceptions, and that prior to that day an order was entered extending the time to file the bill of exceptions to a day certain in the following term, and that a circuit court does not have the power in any event to extend the time for filing a bill of exceptions to a time beyond a day in the succeeding term after the trial. His contention appears to be supported by the case of McNeal's Adm'r v. Norfolk W. R. Company, 185 Ky. 197,214 S.W. 888. The case of Baker v. Whittaker, 185 Ky. 492,215 S.W. 178, is to the same effect, although in neither of these cases was there an order of the circuit court extending the time to a day certain in a term beyond the succeeding term, and probably there was no order giving time until the succeeding term in which to file the bill of exceptions. If we treat the provision of section 334 of the Civil Code, that time cannot be given beyond a day in the succeeding term in which to file a bill of exceptions, as mandatory, and it seems to have been so held, the circuit court could not extend the time for filing a bill of exceptions beyond the succeeding term. This case had been submitted when the motion to dismiss was entered, and without deciding whether the motion came too late we have concluded to give appellant the benefit of the doubt and dispose of the case on its merits.
Appellant shot and killed Ben Bentley, and he was charged by the grand jury with the crime of murder. A jury found him guilty of manslaughter and fixed his punishment at two years in the penitentiary. Two errors only are pointed out by counsel for appellant. One is that the court should have directed the jury to find appellant not guilty on the ground that the evidence was not sufficient to sustain a conviction. Bentley and appellant had been friends from their boyhood, but a few months before Bentley was killed he had caused the death of appellant's father in an automobile accident which engendered bad feelings. Appellant had made some threats to the effect that he would take revenge on Bentley, but he testified that after becoming more familiar with the facts connected with the accident he had become reconciled, and that he hold no ill will towards Bentley because of the accident in which his father was killed. Bentley went to the home of appellant on the day of the killing armed with a pistol and inquired whether appellant had anything against him. Upon being assured by appellant *Page 27
that he had nothing against him, he asked if he might remain there for dinner with appellant and his family. Dinner was prepared for him, and during its preparation Bentley was disorderly and flourished his pistol. After dinner was over Bentley left the home of appellant and went away for a few hours, but thereafter returned and found appellant near his home engaged in a conversation with two or three other people. Bentley asked one of the men standing by whether he had any whisky, and, receiving a negative answer, he displayed his pistol and stated that he had whisky and also that he had that which was necessary to make up the difference. Appellant requested him to give up his pistol, saying to him at the time that he might kill some one, but Bentley refused to surrender his pistol, and he and appellant had a scuffle over the pistol, during which time the pistol was fired twice and appellant was wounded in the back and his clothing was set on fire by the discharge from the pistol. They were separated when Bentley struck appellant viciously over the head with the pistol. He left appellant and retreated for a short distance down the road with the appellant following him, when he again fired, and proceeded further down the road. Appellant fired at him before he started down the road the second time, and as he proceeded down the road appellant, followed him, and when he caught up with him he killed him. There was some testimony that Bentley dropped his pistol as he went down the road and appellant procured it as he passed by where it had fallen. There is testimony that appellant said he killed Bentley with Bentley's pistol. He remarked to some one after he had returned from where he had shot appellant that he had killed him "deader than hell." This statement was denied by appellant and some of the witnesses which he introduced. That appellant was badly mistreated by Bentley is thoroughly established by the evidence, but there was enough evidence to take the case to the jury on the question as to whether appellant killed Bentley in his necessary, or apparently necessary, self-defense. The verdict of the jury is not so flagrantly against the weight of the evidence as to justify this court in reversing the case on that ground.
The second ground relied on for reversal is that the transcript does not contain an order showing that the jury was impaneled or sworn, or that appellant was arraigned *Page 28
or pleaded to the indictment. This ground was not relied on in the motion and grounds for a new trial. For that reason we cannot consider this ground. Thompson v. Com., 122 Ky. 501,91 S.W. 701, 28 Ky. Law Rep. 1137. The requirement that the indictment shall be read and the plea of the defendant stated to the jury is mandatory, and a party cannot be convicted unless it is substantially complied with. Farris v. Com.,111 Ky. 236, 63 S.W. 615, 23 Ky. Law Rep. 580; Meece v Com.,78 Ky. 586. But in the lastcited case the record did not disclose that the prisoner was arraigned or any plea entered in his behalf, and this court was asked to reverse the judgment for that reason. The court declined to reverse the judgment on that ground because it was manifest from the entire record that an issue was made and that the accused had a fair and impartial trial. Again, in the case of Ison v. Com., 110 Ky. 112,60 S.W. 1125, 22 Ky. Law Rep. 1588, it was held there could be no reversal for a failure to read the indictment to the jury unless it had been assigned as one of the grounds for a new trial. The error relied on by appellant that the transcript does not show that a jury was impaneled or sworn, or that a plea of not guilty was entered by the appellant, cannot be raised for the first time in this court.
It is also suggested by counsel for appellant that the indictment on which he was convicted is not sufficient. His complaint on this point is that the indictment does not charge that the pistol with which appellant shot Bentley was "loaded with powder and leaden ball," or words of similar import. The indictment charges that appellant committed the offense of murder "by shooting Ben Bentley and beating him with a pistol, and the said Bentley did thereby die." Appellant was not misled by the language used in the indictment. He knew exactly the offense with which he was charged. By the provisions of section 122 of the Criminal Code the indictment is required to contain a statement of the acts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended. The indictment was sufficient.
Judgment is affirmed. *Page 29 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448154/ | Reversing.
Appellant was indicted charged with the offense denounced in section 1220, Ky. Statutes.
That section is as follows:
"If any woman be delivered of any issue of her body, which, being born alive, would be a bastard, shall endeavor privately, by drowning or secretly burying the same, or in any other way, directly or indirectly, to conceal the birth thereof, so that it may not be known whether it was born alive or not, she *Page 760
shall be confined in the penitentiary not less than one nor more than five years."
It is a prerequisite of the offense named (1) that issue shall be born to the, woman charged, and (2) that such issue if born alive would be a bastard. Obviously, therefore, if upon the trial of such a charge the Commonwealth fails to show that any issue was born to the woman charged, the prosecution must fail.
As the court has reached the conclusion there was a total failure to show that appellant upon the occasion in question, or any time shortly theretofore, gave birth to any child, this opinion will be confined exclusively to a recital of the evidence showing such failure, and will consider no other question.
Appellant is a widow 39 years of age, and at the time of the occurrences hereinafter detailed her husband had been dead three years. On Saturday June 13, 1925, she went from her home near Jackson to the home of her uncle, Dan Little, five miles from Jackson and remained there until the next Friday, the 19th of June. On the afternoon of Tuesday, the 16th, she had what is described in the evidence as a "flooding spell," and the prosecution is based upon the idea that she then gave birth to a child. Whether upon that occasion she was only profusely or unusually flooding at her regular periods, or whether she then gave birth to a child must be determined from the evidence.
The first witness introduced by the Commonwealth was Nannie Little, the wife of Dan Little, who states that when defendant came to her home there was nothing unusual about her appearance, although a little fuller in the face than usual, but that her body and form showed no indication that she was pregnant or that anything was the matter with her; that on Tuesday afternoon she took a spell of flooding, which condition she called to the attention of the witness, and then went into the room and sat down on the bed; that witness went into the room where defendant was and got her some cloths and then witness proceeded to get supper; that when supper was ready defendant declined to eat anything, saying that she was not hungry, but that after supper when witness went into defendant's room she said she was feeling better and there was nothing the matter with her. That witness then went to milk and was gone about thirty or *Page 761
forty-five minutes, leaving her husband, Dan Little, in the room with defendant; that defendant went to bed about seven o'clock and about eight o'clock witness went to bed in the same bed with her, and they stayed together all night; that before witness went to bed defendant complained of feeling bad and witness got some water and washed her face, and the defendant then complained no more and was quiet and appeared to sleep and rest well all night. That witness next morning got up and made a fire in the cook stove and defendant a few minutes thereafter came into the kitchen with the slop jar in her hands and said she would go to the hole of water by the smoke-house near the house and wash the rags and clean them up; that after breakfast defendant said she believed she would wash the clothes that day and witness advised her not to try to do so, but defendant insisted that there was nothing the matter and that she could wash, and that she did wash and put on the lines a big washing that day. That on the night before the defendant had not left the house and did not get out of the bed as the witness believed, and she did not think it was possible for the defendant to have left the house that night without awakening the witness. That on the next day, Thursday, the defendant again washed another big washing and put that on the lines, and that defendant did not complain any while she was working either of these days and ate heartily all the time and slept good at night; that then on Friday she ironed these two washes she had done the two previous days, and left her home that afternoon for Jackson on foot to walk a distance of five miles, and that defendant during that period showed no evidence of having been confined or having a miscarriage.
This witness further says that on Friday, the day defendant left her house, and thereafter, the body of a child was found on their farm about seventy-five or one hundred yards from the house, and that the baby's body was badly decomposed when found.
William South, who ran a store on Cane creek, stated that defendant stopped in his store on the 13th day of June, 1925, presumably as she was going to her uncle's home, "and that she looked larger than common and full about the face, and that he thought she was pregnant with child." He then states that on the following Friday after she had left Dan Little's house he again *Page 762
saw her and she appeared to be smaller and looked as if she might have had a baby or miscarried.
William South's wife gave similar testimony as to defendant's appearance on the 13th of June, but did not see her after she left Dan Little's house.
The last two witnesses are shown to be hostile to defendant.
The next witness for the Commonwealth was Katie McIntosh, who testified that she had washed for defendant in the month of April, 1925, and had washed some garments for her disclosing that she had just had her menstrual period.
The Commonwealth also introduced Dr. Dan Kash, who testified that he had read and heard of three cases in all where women had gotten up and attended to their household duties immediately after giving birth to a child, and that he supposes, therefore, that such a thing is possible, but that it is very unusual, and that he had never known or heard of a women just after being confined in childbirth or having a miscarriage washing and ironing clothes.
This was all the evidence for the Commonwealth, and the defendant asked that the court direct the jury to find her not guilty, which motion the court overruled.
This evidence needs no analysis to establish that it is wholly insufficient to show this woman upon the occasion in question gave birth to a child, and of course if she did not bear a child she could not have concealed its body. The evidence of Mrs. Little proves only that the woman upon the occasion in question had possibly an unusual flooding at her menstrual period, and proves even more conclusively by what occurred at the time and for three days thereafter that she did not give birth to a child, or even have a miscarriage. Not only so, her evidence is convincing that defendant never had any opportunity during that night or the next morning to have taken the body of the child, if she had given birth to one, away from the house. The evidence without contradiction also shows that the body of the child found on the Friday afternoon thereafter was badly decomposed, and if it had been placed where found by this defendant or any other person on Tuesday night or Wednesday morning before that it would not have been in that condition. *Page 763
In any aspect of the case, and from any angle from which the evidence may be considered, it wholly fails to show that this appellant either gave birth to a child upon that occasion or had opportunity to conceal its body.
It is fair to the defendant to say that her evidence is practically the same as that of Mrs. Little, except that she adds positively that she gave no birth to a child upon that occasion, and that she knew nothing of the body of the child that was found near her uncle's home.
Because of the court's refusal to give the directed verdict asked for the judgment is reversed, with directions to grant appellant a new trial and for further proceedings consistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128462/ | 538 U.S. 944
IN RE SCHILLING.
No. 02-8655.
Supreme Court of United States.
March 31, 2003.
1
ON PETITION FOR WRIT OF MANDAMUS.
2
Petition for writ of mandamus denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3448160/ | Reversing.
The Monitor Oil Company was incorporated in New Mexico on May 10, 1919, by three corporators who had no real interest in the company but acted at the request of certain gentlemen in Kentucky. A formal meeting was held in New Mexico organizing the company on June 25, 1919. On July 10, 1919, a meeting was held at Louisville, Kentucky, by the Kentucky men who had procured *Page 576
the proceedings in New Mexico. At this meeting directors were elected. C.A. Phelps was one of the directors and at that meeting C.A. Phelps, trustee, presented to the board of directors eight oil leases covering 963 acres of land in Allen county, and the board took them and issued to Phelps as trustee $150,000.00 of the capital stock at par for the leases. About this time Phelps made a contract with F.A. Kokefair to buy from him the Pat Edmonds lease. This lease had been executed by Edmonds some years before and had been assigned by the original lessee to Kokefair. Kolefair did not then assign it to Phelps. Phelps agreed to pay Kokefair for the lease $65,000.00.
On July 22, 1919, the corporation agreed to buy the Pat Edmonds lease from C.A. Phelps as trustee, at the price of $100,000.00. In this condition of affairs the corporation put the stock upon the market in New York and began selling stock there through a broker on the following written representations made by Phelps as president of the company.
"The wells under test on the Edmonds lease are producing 100 barrels a day. The Brown lease is estimated to produce 40 barrels a day. The Brown lease lies right in the center of a very prolific pool. Acreage owned by the company is 1,178 acres in the famous Gainesville, Halfway, McReynolds and Adolphus pools of Allen county. 25 wells producing 250 barrels daily. The company has an authorized capita stock of $500,000.00. Of this amount $210,000.00 were issued for property and equipment. 50,000 shares has been sold for cash and the balance remains unissued. Of the balance remaining we are offering for sale 100,000 shares, which when sold will make a total of 360 shares outstanding. The company has no bonds or funded debts, no preferred stock and owes nothing other than current bills. Up to the present time all earnings have been expended for the development of the property."
Accompanying these representations is a map of the company's property, showing the location of the wells, and in the center of the map is Pat Edmonds' lease showing twelve wells located on it. On these representations sent out by Phelps as president of the company the brokers sold in New York and in other eastern states about $25,000.00 of the stock at par or more than *Page 577
par, these sales being made on the above assurances as to the condition of the company. At this time in fact nothing had been paid on the Edmonds lease and there had been no actual transfer of the lease from Kokefair to Phelps, trustee, or from Phelps, trustee, to the Monitor Oil Company. Thus things ran along until September 23, 1920, when there was a meeting of the board of directors, at which a resolution was adopted that:
"Whereas Phelps had individually paid Kokefair $23,382.69, under a contract to pay him $65,000.00, and whereas Phelps had sold the lease to his associates for $75,000.00 and they had sold it to the Monitor Oil Company for $100,000.00, but had paid on the lease $9,500.00 and the Monitor Oil Company had paid on the lease $13,500.00 in cash and $20,675.70 in the oil runs after the company took charge of the lease; whereas all of the parties have equity in the Edmonds lease and all of the interested parties are willing to transfer the Edmonds lease to the Monitor Oil Company at the original purchase price of $67,058.39, including interest, provided the Monitor Oil Company pays to the syndicate, composed of Hoge, Rogers and Phelps, the sum of $9,500.00 paid by them on the purchase, with interest, and to C.A. Phelps the amount of $23,382.69, with interest, paid by him on the said purchase, and whereas the Monitor Oil Company is indebted to C.A. Phelps individually for operating expenses paid by him in the development and operation of the Pat Edmonds lease and other properties, amounting to $15,912.04, and whereas W.H. Hoge and C.A. Phelps are sureties on a note of the Monitor Oil Company to the Citizens' National Bank amounting to $2,500.00, with interest, it was ordered by the board that the Edmonds lease be accepted on these terms and that the Monitor Oil Company execute and deliver to C.A. Phelps, trustee, and to C.A. Phelps individually a mortgage on the Pat Edmonds lease and its equipment to secure the indebtedness due C.A. Phelps, trustee, for Hoge, Rogers and Phelps and to secure the indebtedness to C.A. Phelps, trustee, as trustee for W.H. Hoge and C.A. Phelps, endorsers on the note, for the sum of $2,500.00, all of this indebtedness to cover interest to date. *Page 578
It was further provided that the mortgage should stipulate that out of the net returns from the pipe line runs of the Edmonds lease first operating expenses should be paid, and then the sum to W.H. Hoge, C.A. Phelps and John G. Rogers of $9,500.00 should be next paid, and thereafter the indebtedness to C.A. Phelps, and thereafter the note of $2,500.00. A mortgage was accordingly executed and recorded in September, 1920.
On December 11, 1920, W.H. Hoge and the Illinois National Supply Company brought this action against the Monitor Oil Company and C.A. Phelps. They alleged that the Monitor Oil Company was insolvent; that it owed the plaintiffs certain debts which were unpaid; that there were liens on the property of the company, as set out in the mortgage above referred to; that the property was in danger of being lost; that it had no money and no means to operate the property. A receiver was prayed and a judgment settling the rights of the creditors. After this suit was filed a new president of the company was elected and the company filed an answer in which it charged that the claims set out in the mortgage were without foundation and that the Edmonds lease was transferred to the company for stock in the company. H.H. Simms and Louis Newman, suing for themselves and other stockholders to whom the stock had been sold under the representations above stated, filed their petition, charging that these representations were untrue and known to be untrue; that they relied on them as true and were thus induced to part with their money, and that Phelps and Hoge were estopped from asserting any claim against the property of the company until their claims were paid. The issues were made up, proof was taken, a receiver was appointed who took charge of the property of the company, and on final hearing the circuit court held the mortgage valid and directed a sale of the company's property, the proceeds of the mortgaged property to be paid out as therein specified. From this judgment the Monitor Oil Company, Simms and Newman, suing for themselves and their associates, appeal.
It is very clear from the record that the Pat Edmonds lease was not included in the properties which were turned over to the company in consideration of the issue of $150,000.00 of stock at the meeting in July, 1919, in Louisville. So far as the record goes this matter was first presented in the meeting of the directors about a *Page 579
month later, and it was then presented as a purchase, and the company was to pay $100,000.00 for the lease.
It is also clear from the proof that the Pat Edmonds lease was practically the only developed property of value the company had. The other leases except the Brown lease had not been developed to any appreciable extent, and whether they would prove valuable or not was entirely in the lap of the future. The Pat Edmonds lease had on it a number of producing wells. It was producing daily a large amount of oil. It was the thing that gave the stock of the company value. Without this lease the value of the stock of the company would have been entirely conjectural. The fact that the company had these producing wells oil the Edmonds lease, yielding a large amount of oil every day, enabled the brokers in New York to sell the stock. This stock was sold on a prospectus which gave great prominence to Edmonds' lease, and the representations above referred to were made to induce the persons to buy the stock. But in fact the corporation did not then own the Edmonds lease. There had had been no transfer of it to the corporation; it was never transferred until September, 1920, and when it was transferred it was transferred under a mortgage lien for the purchase money. The statement that the company had "no bonded or funded debts, no preferred stock and owing nothing other than current bills" was palpably untrue and was known by Phelps to be untrue, for at the time this statement was made his proposition to turn over this lease to the company for $100,000.00 had been accepted by the company and nothing had been paid by it on the purchase money except the oil runs, which amounted a year later to about $20,000.00. The company then, instead of being as represented, was in fact insolvent unless it made other developments of value, and if the real facts had been told no prudent broker would have offered the stock for sale and no prudent person would have bought it at par.
It is true that Phelps made these representations as president of the company. It is also true that he advanced to the company a large sum of his own money and obligated himself as surety for the company on notes in bank. But he is none the less liable on the misrepresentations he made because he made them, signing the documents C.A. Phelps, president. He put a large amount of his own money in the enterprise. This may illustrate *Page 580
his good faith and belief in the possibilities of the company. But he did all of this well knowing the real facts. As between him and the innocent stockholders, whose money was obtained upon the faith of his misrepresentations, the loss must fall on him rather than on them. He cannot be permitted to induce them by misrepresentations to put their money in the enterprise and then obtain an advantage over them by reason of the mortgage which he subsequently took. Under the facts Phelps is estopped as against these innocent purchasers of stock to maintain that the corporation owed any part of the purchase money of the Edmonds lease, and as against them he cannot assert any lien on the property for anything that he has paid on this purchase money. The proceeds of the mortgaged property should go to them and not to Phelps under his mortgage, and he should not be paid anything therefrom until they are satisfied.
Rogers was not a stockholder in the company and he is not affected by anything that Phelps said or by any representations that Phelps made. W.H. Hoge was a stockholder in the company and was one of the executive committee, but so far as appears he had no knowledge of the representations made by Phelps upon which the sale of the stock was procured. He did not authorize Phelps to make any representations, and so far as we see from the record Phelps had no authority from Hoge to represent him in the matter of his personal debt or to bind him in any way by what he stated. We, therefore, conclude that Hoge and Rogers are entitled to their rights as given in the mortgage and that the circuit court properly so adjudged. But we cannot reach the same conclusion as to Phelps. It is true it is a hard case on him. He worked faithfully for the company, he put a large amount of his own money in it and tried hard to make it go, but he did all this when he owned a large block of stock and had a personal interest in maintaining the value of the stock. He took the chance well knowing all the facts, and under well settled principles of equity he must bear the loss rather than the innocent persons whom he misled and so induced them to go into the venture with him.
To the extent indicated the judgment is reversed and cause remanded for a judgment in favor of Simms and Newman and their associates as above indicated. *Page 581 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448162/ | Appeal denied; judgment affirmed. *Page 857 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128538/ | 538 U.S. 950
SMITHv.KETCHEM ET AL.
No. 02-8748.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 45 Fed. Appx. 254. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/997657/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY D. JONES, a/k/a Rick,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Newport News. Robert G. Doumar, Senior Dis-
trict Judge. (CR-95-37)
Submitted: January 7, 1999 Decided: January 20, 1999
Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Terry D. Jones, Appellant Pro Se. Fernando Groene, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry D. Jones seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998) and the district court’s order denying his motion to
alter or amend the judgment under Fed. R. Civ. P. 59(e). We have
reviewed the record and the district court’s opinions and find no
reversible error. Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal substantially on the reasoning of
the district court. See United States v. Jones, No. CR-95-37 (E.D.
Va. June 10, 1998; July 30, 1998).* See also Brown v. Angelone,
150 F.3d 370 (4th Cir. 1998). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
*
Although the district court’s order denying Jones’s Rule 59
motion is marked as “filed” on July 29, the district court’s
records show that it was entered on the docket sheet on July 30.
Pursuant to Rules 58 and 79(a) of the Federal Rules of Civil
Procedure, it is the date that the judgment or order was entered on
the docket sheet that we take as the effective date of the district
court’s decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35
(4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2985003/ | January 16, 2014
JUDGMENT
The Fourteenth Court of Appeals
ROBERT MICHAEL FLORES, Appellant
NO. 14-13-01089-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below. The
record indicates that the appeal should be DISMISSED. The Court orders the
appeal DISMISSED in accordance with its opinion.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129141/ | 538 U.S. 995
JOHONOSONv.SOBINA, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT SOMERSET, ET AL.
No. 02-5154.
Supreme Court of United States.
April 21, 2003.
1
Petition for rehearing denied. 537 U. S. 898. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3818484/ | This case is upon rehearing. Upon the former hearing of the cause in this court an opinion was written and filed herein upon June 27, 1916, by Mr. Commissioner Rittenhouse, which, in part, was as follows:
"On December 11, 1907, the defendants made, executed, and delivered their three promissory notes to R.F. Dygert which were indorsed by him, and subsequently indorsed by L.W. Cochran. This action was brought by E.C. Voris, who claims to be the owner and holder thereof in due course. It is contended by the defendants that these notes, amounting to $2,100, were given in payment of a certain stallion; that in order to effect the sale of said animal to these defendants the said R.F. Dygert entered into a secret agreement with the defendants Charles N. Birdsall and Hugh Hardie whereby it was agreed that if they would join the other defendants as joint purchasers of said stallion, jointly executing with them the notes in controversy, and thereby inducing the other defendants to sign the same, he would, prior to the delivery of the notes, secretly and without the knowledge of the other defendants herein, indorse upon each of said notes a credit of $100 as having been paid by the defendant Charles N. Birdsall, and upon the note falling due September 1, 1911, a credit of $50 as having been paid by Hugh Hardie. In pursuance of this agreement, said defendants executed the notes in controversy, and before or at the time of the delivery of said notes R.F. Dygert did enter the credits agreed upon without the knowledge or consent of the other defendants.
"The question now before this court is: 'Does the indorsement of the fictitious credits before or at the time of delivery to the payee constitute a material alteration of the notes?' We think it does. R.F. Dygert entered into a secret agreement with two of the makers of these notes whereby it was agreed that the notes should evidence a consideration of $2,100, while, in fact, the actual consideration would be $1,750. This was not the amount the defendants agreed to pay for the stallion and for which they executed their notes, and to the extent of the credits, which amounted to $350, which was indorsed prior to or at the time of the delivery of the notes to the payee, the notes were altered without the knowledge or consent of the makers except the two mentioned. There can be no doubt that, when the payee and the two defendants who were parties to this secret agreement indorsed the pretended payments of $350 on the notes before or at the time of the delivery thereof to the payee, their acts constituted a material alteration of the amount of the notes, to the same extent as if the indorsement had appeared as an interlineation on the face of the notes. In construing the operation and effect of an instrument such as the one under consideration in this case it is necessary to take into consideration, not only the face of the paper, but any indorsements thereon. As has been said by Daniel on Negotiable Instruments (6th Ed.) sec. 151: 'It seems that the purport of the instrument is not only to be collected from the "four corners," but from the "eight corners," a memorandum on the back affecting its operation being regarded the same as if written on its face. * * *' In Johnston, Receiver, v. May et al., 76 Ind. 293, the court, discussing a similar indorsement to the one under consideration, says: 'We need not argue for the purpose of showing that such an alteration of the note was a material alteration for that is manifest; and the facts found by the court show that this alteration was made in the absence and without the authority of the appellee, and without his knowledge or consent, by the principal in the note and the payee thereof or one of them, before or at the time of its delivery. Under the decisions of this court, such an alteration will vitiate and avoid the note, and prevent a recovery thereon from the appellee.' Portage County Branch Bank v. Gustavus Lane, 8 Ohio St. 405; Polo Mfg. Co. v. Parr et al., 8 Neb. 379, 1 N.W. 312, 30 Am. Rep. 830.
"It is immaterial that the effect of the alteration was to reduce the amount of the makers' liability. The test as to whether the alteration of a note is material depends, not upon whether it increases or reduces the makers' liability, but upon whether the note will have the same operation and effect after the alteration as it had before. Commonwealth National Bank v. Baughman, 27 Okla. 175, 111 P. 332; Citizens' State Bank v. Grant, 52 Okla. 256, 152 P. 1082; German American Bank v. Hennis et al., 54 Okla. 146, 153 P. 671.
"The next inquiry is: 'What effect does a material alteration have upon notes subsequently coming into the hands of a bona fide holder without notice?' This is thoroughly discussed in Commonwealth National Bank v. Baughman, supra, Citizens' State Bank v. Grant, supra, and German American Bank v. Hennis et al., supra, wherein it was held that prior to the adoption of sections 4174, 4175, Rev. Laws 1910, the material alteration of a note by the payee without the consent of the maker avoids it against the maker even in the hands of a holder without notice of such alteration.
"The answer further alleges that the agent of Lew W. Cochran, in order to induce the defendants to purchase the stallion, falsely and fraudulently represented the horse to be a Percheron stallion, foaled April 18, 1904, named Lovalette, with a pedigree of record with the Percheron Society of America, showing his full pedigree for four generations, and numbered 46988; that the said stallion was *Page 288
sound and a sure foal-getter, insured for $1,000 in a solvent live stock insurance company. There was evidence supporting the theory that the horse delivered was not the one described in the pedigree. At the time of the execution of those notes section 4109, Rev. Laws 1910, was not in force. This section is but declaratory of the law as it existed prior to its adoption. In the case of the First National Bank of Stratford v. Walker,39 Okla. 620, 136 P. 408, 50 L. R. A. (N. S.) 115, this court, in dealing with a note made prior to the present law, held: 'In an action on a note by a transferee thereof, defendant cannot introduce evidence as to fraud and failure of consideration until he first substantiates his allegation challenging plaintiff's claim of a bona fide purchase for value before maturity.'
"This theory was disapproved in the case of Sam C. Lambert v. G.S. Smith, 53 Okla. 606, 157 P. 909, wherein it was held that, where fraud is shown in the inception of the note, the true rule places the burden on the plaintiff to establish that he is a holder in due course without notice. Winfield National Bank v. McWilliams, 9 Okla. 493, 60 P. 229; Abmeyer v. First National Bank of Horton, 76 Kan. 877, 92 P. 1109. 'Since there was evidence tending to show fraud in the inception of the note, the burden was upon the bank to show that it acquired the note bona fide for value in the usual course of business, and under circumstances which created no presumption that facts impeaching its validity were brought to the notice of the bank or its managers. Kennedy v. Gibson, 68 Kan. 612, 75 P. 1044. This rule of law placing the burden upon the holder of paper fraudulently obtained appears to have been overlooked; as the court directed a verdict upon the theory that there was an absence of proof that Dunn or the bank had notice * * * in the inception of the note. To meet the prima facie case arising from proof of fraud testimony was offered of the good faith of the bank and that it had no notice of any fraud on the part of Wright, but whether the prima facie cause was overcome was a question for the jury, and hence the ruling directing a verdict was error.' In Kirby v. Berguin, 15 S.D. 444, 90 N.W. 856, the court in the syllabus says: 'Where a negotiable instrument is shown to have been obtained by fraud or duress, the burden is on a subsequent holder to show that he was a bona fide purchaser for value, without notice.'
"Ireland v. Shore, 91 Kan. 326, 137 P. 926, was a cause in which fraud in obtaining the instrument was alleged in the answer. The court instructed the jury that the possession of a negotiable instrument properly indorsed is a prima facie evidence that the holder is a holder in due course, and that, when the title of the person negotiating such an instrument is shown to be defective, the burden is on the holder to prove that he is a holder in due course. In the case of Gourley v. Pioneer Loan Co., 51 Okla. 434, 151 P. 1072, it is said: 'Where the maker of a note establishes that the note had been diverted or negotiated in violation of an agreement under which it was given, the burden is on the holder to prove that he, or some one under whom he claims, acquired title to the note as a holder in due course, and without notice of any infirmity; and, unless he proves this to the satisfaction of the court or jury, he is not entitled to recover against the maker.'
"After the defendants had established fraud in the inception of the notes, and other facts tending to impeach the plaintiff's claim that he was a holder in good faith, the plaintiff, in order to overcome such prima facie case, testified: 'I had no notice of any defense on the part of the maker or either of them, and was a holder of the note before it became due. It was indorsed by Mr. Cochran at the time it was delivered to me. I know nothing about the animal described by the defense in their answer prior to getting the note.' The extent of the interest of the witness in the controversy was before the jury, they were under no obligation to believe the statement that he was a holder in due course without notice of the fraud, and whether such evidence overcame the prima facie case established by the defendants was a question of fact properly submitted to them.
"We therefore conclude: (1) That the notes under consideration were materially altered by the act of the payee and the defendants Birdsall and Hardie, which alterations were made before or at the time of the delivery of the notes to the payee without the consent of the makers, C.N. Smith, F.B. Golding, J.A. Yates, B.B. Brown, and E.C. Murray, that said notes are now void as to them in the hands of a bona fide holder without notice of such alteration; (2) that the rule placing the burden of proof on the holder of a negotiable instrument to show that he is a holder for value without notice obtains where there is fraud in the inception of the note."
That part of the opinion of Mr. Commissioner Rittenhouse which is above quoted is, under the circumstances of the case, approved and adopted as the opinion of the court upon the questions therein considered.
We are confronted with a more serious question in the assignments of error dealing with the instructions and refusal of instructions with reference to the essentials of notice to the purchaser of a negotiable instrument. The lower court instructed the jury as follows:
"No. 4. You are instructed that notice is either actual or constructive. Actual notice consists in express information of a fact. Constructive notice is notice imputed by the law to a person not having actual notice. Every person who has actual notice of circumstances sufficient to put a prudent man *Page 289
upon inquiry as to a particular fact, and who omits to make such inquiry with reason able diligence, is deemed to have constructive notice of the fact itself."
While this instruction followed the general rule as to the effect of notice, as laid down by our statute, and as pertains to other kinds of contracts, this is not the proper rule governing notice of defects of title in negotiable instruments as announced by a long line of decisions by this court. The instruction given has been expressly disapproved by this court. In the case of Security Trust Savings Bank v. Gleichmann,50 Okla. 441, 150 P. 908, L. R. A. 1915F, 1203, this court said:
"The next assignment of error relates to the notice which the bank would have from the fact that the president of the bank was also a director of the Hart-Parr Company. There is error in this instruction in another particular, because the court charged that, if the bank had such notice of the transaction between the defendant in error and the Hart-Parr Company as would put a reasonably prudent man upon inquiry as to the facts surrounding the transaction, this would be notice to the bank. This, we think, is directly opposed to the decisions of this court. In Forbes v. First National Bank of Enid, 21 Okla. 206,905 P. 785, it is held that knowledge of such facts as would put a prudent man upon inquiry with reference to a draft or negotiable instrument purchased by him is not sufficient to defeat the right of the holder, and the court may direct a verdict when the circumstances surrounding the transaction are not sufficiently strong for it to be said, as a matter of law, that bad faith may be inferred. In First National Bank of Watonga v. Wade, 27 Okla. 102, 111 P. 205, 35 L. R. A. (N. S.) 775, in passing on this same question, this court has said: 'This court is committed to the doctrine that bad faith, not merely notice of circumstances sufficient to put a prudent man on inquiry, is necessary to defeat recovery by the holder of negotiable paper whose right accrued before maturity.' "
In the case of Citizens' Savings Bank. v. Landis et al.,37 Okla. 530, 132 P. 1101, the syllabus reads as follows:
"Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or of circumstances sufficient to put him upon inquiry, will not defeat his title; that result can be produced only by bad faith on his part.
"The owner of a negotiable promissory note, who obtains it before maturity for a valuable consideration, without knowledge of any defect of title and in good faith, holds it by a title valid against all the word."
In the case of Forbes v. First Nat. Bank of Enid,21 Okla. 206, 95 P. 785, this court said:
"There was no proof that plaintiff had actual notice of fraud practiced upon Forbes by the Citizens' Bank in acquiring said draft. The fact that the president of the First National Bank may have had knowledge that the Citizens' Bank was in a failing condition does not prove notice to it of the fraud of the Citizens' Bank in procuring the draft in question from Forbes. Plaintiff, by showing that it was a purchaser for value before maturity of said draft, established its right to recover thereon, unless such right be defeated by proof of notice of the equities of Forbes or of its bad faith. In Atlas National Bank v. Holm et al., 71 Fed. 489, 19 C. C. A. 94, the United States Circuit Court of Appeals of the Seventh Circuit said: 'There has been a contrariety of rulings on the subject, but the weight of authority has long been (in the federal courts, certainly since Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865) that one who takes an assignment of commercial paper before maturity, paying value, without notice of infirmity in the title or consideration, is deemed a good-faith purchaser, and that, to deprive him of that character, it is not enough that he neglected to make the inquiry which under the circumstances a prudent man would or ought to have made.' It is contended by plaintiff in error that the conduct of Goltry in going to the Citizens' Bank after banking hours and obtaining the draft in question, and the other items of remittance which had been received by the Citizens' Bank during that day and the government bond and a note in settlement of the balance due by the Citizens' Bank to the First National Bank when Goltry had knowledge that the Citizens' Bank was in a failing condition, and that it had acquired said draft on that day, establishes the bad faith of the plaintiff in taking the draft. He contends that the circumstances under which the draft was obtained were such as should have created a suspicion in the mind of Goltry, and put him upon inquiry, and that his not having made inquiry of the assistant cashier of the Citizens' Bank as to how he obtained the draft establishes the bad faith of the plaintiff. We think this contention not well founded, for it has become the well-established rule in the federal courts of the Union and in the greater number of state courts that suspicion of defect of title or even gross negligence on the part of a taker of a negotiable instrument will not defeat his title. Atlas National Bank v. Holm et al., supra; Murray 1. Lardner 2. Wall. 110, 17 L.Ed. 857; Hotchkiss v. National Banks, 21 Wall. 354, 22 L.Ed. 645; Clark v. Evans et al., 66 Fed. 263, 13 C. C. A. 433; Goodman v. Simonds, 20 How. 343, 15 L.Ed. 934; 1 Daniel on Negotiable Instruments, 766."
The rule announced in the above cases has been approved by this court in a long line of *Page 290
decisions, others of which are McPherrin v. Tittle et al.,36 Okla. 510, 129 P. 721, 44 L. R A. (N. S.) 395, and First State Bank of Oklahoma City v. Tobin, 39 Okla. 96,134 P. 395. These cases announce the rule, which existed prior to the present Negotiable Instruments Act, enacted in 1909.
Plaintiff in error requested instructions embodying the correct rule as drawn from the above cases herein cited and quoted, and these instructions were refused, and exceptions taken. Following the above authorities, it is apparent that the lower court erred in its instructions and that the effect of this error was prejudicial to plaintiff in error.
The judgment of the lower court should be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/997673/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7626
TYRONE CURRENCE,
Plaintiff - Appellant,
versus
DOUGLAS STROUT,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CA-98-619-5-H)
Submitted: January 7, 1999 Decided: January 20, 1999
Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tyrone Currence, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tyrone Currence, a North Carolina inmate, appeals the district
court’s order denying relief on his 42 U.S.C.A. § 1983 (West Supp.
1998) complaint under 28 U.S.C.A. § 1915A (West Supp. 1998). We
have reviewed the record and the district court’s opinion and find
that this appeal is frivolous. Accordingly, we dismiss the appeal
on the reasoning of the district court. See Currence v. Strout,
No. CA-98-619-5-H (E.D.N.C. Oct. 7, 1998). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/708571/ | 70 F.3d 1268
Hobbsv.Vincent**
NO. 94-20863
United States Court of Appeals,Fifth Circuit.
Oct 19, 1995
Appeal From: S.D.Tex., No. 92-CV-693
1
DISMISSED.
**
Conference Calendar | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2887522/ | NO. 07-01-0315-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 8, 2002
______________________________
BOB YARI, INDIVIDUALLY, AND D/B/A PERSICO, INC.,
PERSICO, INC., A TEXAS CORPORATION, AND YARICO,
INC., A TEXAS CORPORATION, APPELLANTS
V.
LIGIA REVUELTA GILES AND LRG ENTERPRISES, INC., APPELLEES
_________________________________
FROM THE 127TH DISTRICT COURT OF HARRIS COUNTY;
NO. 199422727; HONORABLE SHAROLYN WOOD, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
This appeal arises from a commercial landlord-tenant dispute concerning the
tenant’s right to maintain a particular sign over the leased premises. After a bench trial
and judgment in favor of the tenant, and reversal on appeal, the case was retried before
a jury. In conformity with the jury’s verdict, the trial court rendered judgment for the tenant
for $118,613.27, together with attorneys fees in excess of $100,000. The landlord, Bob
Yari (Yari) and Persico, Inc., (Persico) now present ten issues in challenge of the trial
court’s judgment concerning the sufficiency of the evidence, proper construction of the
lease, evidentiary rulings, attorneys fees, and discovery sanctions. We affirm.
Proper consideration of the issues raised in this appeal requires a somewhat
detailed recitation of the facts giving rise to the dispute. About 1989, appellant Yari
undertook to build a commercial building to house retail stores on Westheimer Street in
Houston. Yari solicited appellee Ligia Revuelta Giles as a tenant in that building. On
August 25, 1989, Yari and Giles signed a lease covering 1,000 square feet of the property.
The lease recited that it was between Persico, Inc., as landlord and Giles and LRG
Enterprises, Inc. (LRG), as tenant. However, Persico was not incorporated until
November 3, 1989. The lease required the landlord’s approval of any sign placed on the
building. An amendment to the lease executed November 26, 1989, provided for rent
increases based on a consumer price index. The building was completed and the three-
year lease term began in June 1990.
The shopping center is designed in an “L” shape with the storefronts facing the
interior of the “L.” Each wing of the structure has a covered walkway extending several
feet out from the front of the building and signs for tenants in those wings are located on
the fascia of this walkway. The walkway covers do not extend to the interior corner of the
building. A second fascia, flush with the main structure, rises above the interior corner and
2
the adjacent storefronts on each side. Videoland, which Persico describes as an “anchor”
tenant, occupies the space at this intersection. Giles’s restaurant occupied the space
adjoining Videoland on the left. The sign for Videoland is at the top of the fascia at the
intersection of the two wings and faces directly toward the center of the parking lot, at a
45- degree angle from each wing. If a line were drawn extending the common wall
between the spaces leased by Giles and Videoland, the Videoland sign would extend
beyond that line. This sign also extended above the building fascia.
Giles’s request in September 1990 for a sign was not approved. Another request
was approved by Persico on October 12, 1990. This sign was to be 18 feet long and was
to run “exactly along edge of wall - none above.” When the sign was fabricated and
delivered, it was initially installed with the top even with the fascia. Because the sign was
largely obstructed by the covered walkway, Giles requested that it be moved up one foot.
The sign was placed partially above the fascia, to the left, but slightly lower than the
Videoland sign.
On November 5, 1990, Persico, acting through its property management company,
demanded removal of the sign, stating it violated the lease. On January 24, 1991, Giles
demanded removal of the Videoland sign because it “is encroaching on [her leasehold] by
approximately six feet.” In a March 1991 letter, an attorney for Giles wrote to Yarico, Inc.
(Yarico) and BMS Management requesting that the covered walkway be extended in front
of her restaurant so that a sign could be placed on the front of that walkway. Appellants
3
declined this request. On April 5, 1991, appellant demanded the removal of Giles’s sign
and, when it was not removed, had it removed and demanded payment of $200. Giles
abandoned the property in April 1991.
After both parties filed suit in county court, the actions were consolidated in the
127th District Court. In that action, Giles and LRG were the plaintiffs and Yari, Persico, and
Yarico were defendants. Giles’s petition alleged appellants breached the lease “by failing
and refusing to consider or approve any sign plans presented by [her]” and by failing to
remove unauthorized signs which encroached on her leasehold. Yari answered asserting
he was not liable in the capacity in which he was sued because his participation was only
as president of Persico. Yarico made a similar assertion, claiming it was not a party to the
lease agreement. All three defendants also asserted several facts and claims labeled
affirmative defenses.
After a bench trial, the court rendered judgment for appellees for approximately
$56,000 in actual damages and $22,000 in attorneys fees. The judgment was against Yari
individually and d/b/a Persico and Yarico. Yari appealed and, in an opinion issued April
1, 1999, the First Court of Appeals reversed the trial court’s judgment on the basis that the
discovery sanctions were improperly imposed. It remanded the case for a new trial.
The second trial was to a jury in March 2000. The jury found the landlord failed to
allow Giles a business sign and that $59,428.75 would fairly and reasonably compensate
her. It denied any recovery for lost profits from 1990 through 1993. The issue of attorneys
4
fees was separately tried to the court. The court rendered judgment for Giles for
$59,184.52 in actual damages and $108,000 in attorneys fees through trial, and additional
amounts of $30,000 on appeal to this court, $5,000 if a petition for review is filed in the
supreme court, $15,000 if a petition is granted and $50,000 on writ of certiorari to the
United States Supreme Court. The judgment was signed March 27, 2001, and after a
motion for new trial, Yari and Persico timely filed a notice of appeal.
We recognize that the trial court’s judgment makes no express disposition of the
claims against Persico and Yarico. It did, however, contain a “Mother Hubbard” clause
stating that all relief not expressly granted was denied. Because the judgment was
rendered after a conventional trial on the merits, we presume that it disposed of all parties
and claims and is appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 198-99 (Tex.
2001); North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).1
Appellants’ first issue contends there is no evidence that they breached the lease.
Giles’s breach of contract claim was based on Yari’s failure and refusal to consider and
approve of the sign plans and the failure to remove signs which she claimed encroached
on her leased space. Yari argues there is no evidence that the lease required them to
consider and approve the sign plans. In reviewing a no-evidence point, we must examine
the record in the light most favorable to the finding to determine if there is any probative
1
Giles does not challenge Persico’s standing to prosecute this appeal because the
judgment does not expressly dispose of the claims against Persico. For simplicity we refer
to appellants as Yari.
5
evidence, or reasonable inferences therefrom, which supports the finding, and we must
disregard all evidence or reasonable inferences therefrom to the contrary. Raw Hide Oil
& Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.--Amarillo 1988, writ
denied). Giles’s breach claim was based on section 14.3 of the lease, which provides that
the “landlord shall not be in default unless landlord fails to perform obligations required of
landlord within a reasonable time, but in no event later than thirty days after written notice
by tenant.” Yari contends “the lease imposed no obligations whatsoever on the landlord.”
If the landlord truly had no obligations under the lease, section 14.3 would be
unnecessary. Moreover, a total absence of obligations on the landlord would make the
contract unenforceable for lack of consideration.
Section 7.5 of the lease governed tenant signs and provided, “[t]enant shall not
place or affix any signs or other objects upon or to the roof or exterior walls of the premises
. . . without the prior written consent of landlord.” The lease also provided that the property
was to be used for a retail store. There was testimony that a sign is necessary to the
success of a business of this type. Taken as a whole, the contract clearly contemplated
that tenants were to have signs, otherwise the phrase “without the prior written consent of
the landlord” would serve no purpose. The effect of section 7.5 was to reserve to
appellants the right to approve those signs. Where a lease requires a tenant to seek a
landlord’s approval, the landlord’s duty to consider that request is necessarily implied.
Section 14.3 affirmatively required the determination to be made in a reasonable time.
6
Although it is undisputed that appellants gave written approval for a sign, it is also
undisputed that they removed the sign that was constructed pursuant to those plans
because it was not installed in the position specified in the plans. Because there was
evidence that the sign would be wholly ineffective if installed where demanded by the
landlord, a rational trier of fact could find this to be some evidence that appellants
breached their obligations under the lease by effectively denying appellees the ability to
have a sign over the leased space.
In their second issue, appellants contend the trial court erred in instructing the jury
that Giles “was allowed a business sign that complied with the Landlords’ approval of
October 12, 1990,” because that statement does not appear anywhere in the lease.
Appellants argue there were no pleadings or evidence to support this instruction and the
court improperly implied an additional provision into the unambiguous agreement. As
noted above, section 7.5 simply reserved to appellants the right to approve any sign to be
erected by a tenant. It did not bar the use of signs by tenants but, rather supports the
conclusion that tenants would have some type of sign. The evidence is undisputed that
appellants approved a plan for a sign on October 12, 1990. The application of the lease
terms to the undisputed sign plan approval made the statement in the disputed instruction
true as a matter of law. Because the undisputed evidence supports such a determination,
the trial court’s instruction that Giles was allowed a business sign in compliance with the
approval was proper.
7
Appellants also contend the instruction was not raised by the pleadings as required
by Rule 278. The question submitted to the jury was whether “the landlord failed to allow
the tenant a business sign.” This issue was the core complaint of appellees’ petition.
They alleged that appellants breached the lease by failing to approve a business sign. A
petition need not allege each supporting fact, only give fair notice of the claims asserted.
Tex. R. Civ. P. 45. The evidence of the terms of the contract and October 12 written
approval meet the requirements of Rule 278. We overrule appellants’ second issue.
Appellants’ third issue contends there is no evidence to support the jury’s answer
that they did not allow Giles a business sign that complied with the approval. In support,
it cites the testimony of Robert Tanner that the sign fit where it was intended on the
approved plan. Appellants characterize Tanner as “an unbiased witness with no interest
in this lawsuit.” However, the record clearly shows that at the time of the events giving rise
to this litigation, Tanner was the property manager hired by Yari or Persico, and the
conduct of the management company during the origin of this dispute formed part of the
basis of Giles’s theory of liability. Consequently, Tanner, although not a party to the
litigation, was defending his own conduct at trial and was not an unbiased witness.
Appellants also assert that “the sign stayed on the roof until Giles abandoned the
premises.” The record reference given does not support this statement. Indeed, the
statement is directly controverted by Giles’s testimony:
Q: Approximately how long after the removal of the sign did you move out?
8
A: How many days? I don’t recall but it was very – immediately almost.
Q: What was the reason that you moved out?
A: Because they didn’t – I didn’t have a sign . . . .
There was also evidence that had the sign been placed below the top of the fascia, it
would have been largely obstructed. A rational factfinder could find that by only allowing
appellees to place a sign in that position, appellants effectively denied appellees a sign.
We overrule appellants’ third issue.
In their fourth issue, appellants assign error to the rendition of judgment against Yari
individually and d/b/a Persico, Inc., rather than the corporate entity Persico, Inc., who they
claim was the true landlord. Their claim is primarily based on the fact that Persico was the
party named on the face of the written lease and claim there was no evidence of a contract
between Giles and Yari. We disagree.
Appellants do not dispute that Giles was a party to the lease or that Yari signed as
or for the landlord. Nor do they dispute the fact that Persico was not incorporated when
the lease was executed. The evidence also showed that Yari was the owner of the real
property which was the subject of the lease. The rule is well-established in Texas that a
contract made by the promoter of a corporation before the corporate existence does not
become a contract of the corporation when formed. Aloe Ltd., Inc. v. Koch, 733 S.W.2d
364, 366 (Tex.App.--Corpus Christi 1987, no writ); Gutherie v. Country Club Estates, Co.,
9
26 S.W.2d 403, 404 (Tex.Civ.App.–Austin 1930, no writ).2 The promoter is not liable
where the other party knows the corporation does not yet exist. Aloe, 733 S.W.2d at 366.
Appellants presented no evidence that appellees knew Persico was not a corporation at
the time the lease was executed. Therefore, the rule stated in Aloe, making promoters
such as Yari personally liable is applicable. Although appellees did not specifically allege
promoter liability in its petition, the issue was fully litigated without objection to the lack of
supporting pleadings, making the rule of trial by consent applicable. Tex. R. Civ. P. 67.
Appellants also argue that Yari is not liable on the lease because Giles executed
an amended lease on November 28, 1989, after Persico was formed. However, at that
time, Yari still owned the property and did not convey it to Persico until the following
January. Because Persico did not own the real property, it could not grant a leasehold to
Giles.
Appellants next argue the judgment was improper because section 16.2 of the lease
prevented Giles from looking to any property beyond the real property, which was the
subject of the lease to execute on any judgment. Assuming, without deciding, that this
clause is effective, any limitations on Giles’s ability to execute on a judgment does not
make rendition of that judgment error. Appellants cite Oxford Mall Co. v. K & B Mississippi
Corp., 737 F. Supp. 962 (S.D. Miss. 1990), which considered a similar clause. That case
2
This rule exists independent of Tex. Rev. Civ. Stat. Ann. art. 1302-2.02, which is
the primary focus of appellants’ argument. It is likewise independent of article 2.21 of the
Business Corporation Act (Vernon Supp. 2002), which concerns the liability of
shareholders, not promoters.
10
is distinguishable because it was governed by and decided on the Federal Rule of Civil
Procedure permitting motions to dismiss for failure to state a claim. Because those rules
are inapplicable in this proceeding, we overrule appellants’ fourth point.
Appellants’ fifth point is based on the trial court’s decision to allow Giles to present
evidence of her attorneys fees when she had not properly supplemented discovery
responses. Giles responds that the discovery request at issue was filed in the prior county
court proceeding on April 14, 1994. Because the two county court proceedings were
dismissed to allow the action to be refiled in district court on May 13, 1994, Giles contends
the prior discovery request did not survive the dismissal. Without citation to the record,
appellants assert they served a second request for disclosure, including identification of
experts, on March 14, 2000. When the issue of attorneys fees was tried separately to the
court on March 8, 2001, appellants objected to any testimony of attorneys fees above the
approximately $2,200 provided in the response to discovery in the county court. The court
declined to exclude the testimony of additional fees.
In a May 1, 2000 motion to exclude Giles’s experts, appellants cited the trial court’s
February 22, 2000 docket control order setting April 1, 2000, as the deadline for
designation of expert witnesses in conformity with Rule of Civil Procedure 194.2(f). The
only designation which appears in the record is dated February 9, 1994, while the dispute
was before the county court, and lists Giles’s attorney as an expert on attorneys fees. The
trial court declined to rule on this motion. We need not further address this motion
11
because it was filed after the bench trial on attorneys fees and concerned the designation
of experts on economic losses. Likewise, any failure to respond to the March 14 discovery
cannot show reversible error because that discovery request does not appear in this
record and it was also made after the issue of attorneys fees was tried. The absence of
a timely objection or request waives any error. Tex. R. App. P. 33.1(a)(1).
With regard to Giles’s failure to supplement the 1994 discovery answer, Yari does
not cite any authority supporting his contention that dismissal of the county court actions
terminated any duty to supplement. The argument does find some support by analogy in
Aetna Casualty v. Specia, 849 S.W.2d 805 (Tex. 1993), where the court held that a
discovery sanction for failure to supplement answers did not survive a nonsuit. Id. at 807.
Under the record before us, we cannot say the trial court abused its discretion by
overruling appellants’ objection to the testimony of Giles’s attorney on attorneys fees. We
overrule their fifth issue.
Appellants’ sixth point alleges Giles failed to establish entitlement to attorneys fees
by statute or contract. Chapter 38 of the Texas Civil Practice & Remedies Code provides
for the recovery of attorneys fees on successful prosecution of several types of claims,
including contract claims. Section 38.001 (Vernon 1997). Section 38.002 establishes
three prerequisites to recover attorneys fees: 1) that the party be represented by an
attorney; 2) that they present the claim to the opposing party; and 3) that payment of the
claim was not tendered before the 30th day after presentation of the claim. Appellants’
12
argue that Giles failed to establish she presented the claim to them as required, and
therefore is not entitled to attorneys fees under Chapter 38. In response, Giles cites
testimony and letters introduced in which she asserted that appellants’ conduct was in
violation of the lease agreement. It is well established that no particular form of
presentment is required to meet the requirements of section 38.02. Whitehead v. State
Farm Mut. Auto. Ins. Co., 952 S.W.2d 79, 89 (Tex.App.--Texarkana 1997), rev’d on other
grounds, 988 S.W.2d 744 (Tex. 1999). The record supports a finding that Giles presented
her claim under the contract.
The only provision in the lease agreement for recovery of attorneys fees appears
in section 16.15. It allows for the recovery of attorneys fees if either party “brings an action
to enforce the terms hereof or declare rights hereunder.” Arguing that Giles’s claims were
for recovery of damages rather than specific performance or declaratory judgment, Yari
claims this provision is inapplicable. We disagree. The action was brought to declare
rights under the agreement. The fact that Giles also sought damages does not alter that.
We overrule appellants’ sixth issue.
In their seventh issue, appellants assign error to the trial court’s imposition of a
discovery sanction for abuses alleged to have occurred in 1994, prior to the first trial of the
case. Before the first trial, Giles sought the exclusion of Yari’s testimony as a sanction for
discovery abuse. The trial court did not rule on the request until the trial was well
underway. Giles did not object to the court’s failure to rule before trial. On appeal, the
13
First Court of Appeals found Giles waived the right to request sanctions by failing to obtain
a ruling, or object to the failure to rule, before trial. Yari v. Giles, No. 01-95-0570-CV
(Tex.App.--Houston [1st Dist.] October 29, 1995, no writ).
At a hearing before the second trial, Yari’s counsel raised the issue of discovery
sanctions. The court recounted its recollection of the events leading to the original
discovery sanctions, including Yari’s failure to appear at several scheduled depositions
and the court’s postponement of sanctions to give him an opportunity to give his
deposition. At Yari’s request, the court also limited the deposition to two hours. After
reading the transcript of the deposition, the court described it as “a remarkable piece of
abuse of the judicial process” because of the “obstructionism that was evident in [it].”
The trial court found the opinion reversing its original judgment was based on the
failure to give Yari adequate time to secure another witness, not that the sanction was
improper. The court also opined the appellate judgment did not reverse her discovery
sanction order and that order was still in effect, stating that the five years from the original
trial gave Yari adequate time to secure another witness and “if the defendant here today
was thinking that perhaps that prior ruling had been set aside by the appellate court, let
me know.” She also expressly authorized Yari to substitute another witness on the matters
that would have been addressed by his testimony. Yari made no objection to the court’s
assertion that the judgment on original appeal did not vacate her ruling or declare it invalid.
The trial court then overruled Yari’s objection that Giles had waived the right to seek
14
sanctions by failing to seek sanctions after the original judgment was reversed. Yari did
not seek a continuance to secure another witness.
We need not determine whether the trial court correctly interpreted the First Court
of Appeals’ judgment because Yari’s failure to object to that interpretation in response to
the trial court’s express invitation waived any error that might have existed on that issue.
We overrule appellants’ seventh issue.
Appellants’ eighth issue questions the sufficiency of the evidence supporting the
jury’s answer of $59,428.78 in actual damages. They also argue there was no evidence
that any damages were the result of their breach of the lease. Giles presented the
testimony of her accountant Patrick Levantino. He testified that Giles had spent $41,186
in improvements to the property, $7,263 on equipment, $7,614 in furniture and $3,085 in
lost security deposits. These expenses totaled $59,158. He also testified that, in his
opinion, a sign was imperative for success of a restaurant and the absence of a sign was
directly related to the failure of Empanada House. This uncontroverted evidence supports
the jury finding of actual damages. We overrule appellants’ eighth issue.
In their ninth issue, appellants challenge the admission of evidence which, they
contend, was admitted in violation of the rule against hearsay. The evidence at issue
includes Giles’s testimony that numerous customers told her they had difficulty finding the
restaurant. When she related these comments to the landlord’s representative, she was
told to submit the comments in writing. Giles placed a writing tablet in the restaurant and
15
obtained several written comments from customers concerning their difficulty in finding the
business. Giles submitted these to the management company, and also introduced them
into evidence over appellants’ objection.
The written comments were admitted for the limited purpose of showing that Yari
had notice of customer complaints rather than for the truth of their contents. We must
presume the jury followed the court’s instructions. Moore v. Sims, 882 S.W.2d 844, 847
(Tex.Crim.App. 1994). Moreover, Giles presented the testimony of one of the customers
who submitted a written comment. Consequently, any error in admitting the written
comments was harmless. See Tex. R. App. P. 44.1. We overrule appellants’ ninth issue.
Appellants’ tenth issue assigns error to the trial court’s failure to award damages
to them for unpaid rent on the ground that Giles abandoned the property in violation of the
lease “because there is no evidence that appellants breached the lease.” This is merely
a restatement of appellants’ first issue. Having found there was legally sufficient evidence
to support the jury’s finding that appellants breached the lease, we overruled the first
issue. We likewise overrule this issue.
Finding no merit in appellants’ issues we must, and hereby do, affirm the judgment
of the trial court.
John T. Boyd
Chief Justice
16
Do not publish.
17 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876064/ | 458 F. Supp. 543 (1978)
CONSUMER CONCEPTS, INC., Plaintiff,
v.
MEGO CORP., Defendant.
No. 78 Civil 3353.
United States District Court, S. D. New York.
September 12, 1978.
Keane & Butler, New York City, for plaintiff; Thomas A. Butler, Rose Mary Reilly, New York City, of counsel.
Weiss, Rosenthal, Heller, Schwartzman & Lazar, New York City, for defendant; Howard L. Mann, E. Cooke Rand, Michael R. Sonberg, New York City, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
Plaintiff Consumer Concepts, Inc. ("Concepts") brought this suit for an injunction and damages against defendant Mego Corporation ("Mego") charging that Mego's manufacture of a toy violated its duty of non-use and non-disclosure of confidential information conveyed to it by Concepts. Mego now moves, pursuant to section three of the Federal Arbitration Act of 1925,[1] to stay these proceedings pending arbitration. Since the dispute is embraced by an enforceable arbitration clause, Mego's motion is granted.
Concepts is a firm that develops new ideas for toys and games, which it then licenses to companies for manufacture. Mego is one such licensee. The parties have, since 1974, engaged in continuing business relations, formalized on July 22, 1975, by an "umbrella" agreement (the "July Umbrella Agreement" or "July Agreement"). Under this contract Concepts submits ideas for toys; those ideas accepted by Mego are incorporated into the July Agreement as "Items." Each Item is then attached to the July Agreement under Schedule "A." If the contract is cancelled as to any Item, Mego promises not to make *544 or sell the Item.[2] The July Umbrella Agreement also provides that "[a]ny controversy or claim arising out of or relating to this agreement or the breach thereof, shall be settled by arbitration."[3]
Prior to October 22, 1975, Concepts created an idea for a line of toys (the "Big Project") predicated on a device called "Magic Sound." On October 22, 1975, the parties were engaged in negotiations with the intent of entering into a licensing agreement whereby Mego would be licensed to manufacture toys based on Magic Sound. Because of the importance of the Big Project the parties executed a contract on that date (the "October Agreement"), under which Mego agreed that if a licensing contract relating to the Big Project were not signed by November 5, 1975, it would not disclose information about the Big Project or Magic Sound and would not make toys based on Magic Sound until 1979.[4] No agreement was reached by November 5th.
However, negotiations between the parties continued for five months with respect to one or more items based on Magic Sound. On March 22, 1976, they agreed on a license for Mego to manufacture two products based on Magic Sound.[5] This "March Agreement" incorporated the terms of the July Agreement and was added to Schedule "A" of that Agreement. In December 1976 the parties terminated the March Agreement. After the termination, Mego began to market a new toy "2XL." Plaintiff contends that 2XL is "exactly that type of item which is a play situation and game predicated on `MAGIC SOUND'" and charges Mego with breach of the October Agreement and misappropriation of a trade secret.[6] Mego responds with a motion to stay the proceedings pending arbitration, because, it asserts, the controversy arises out of or relates to the July Umbrella Agreement and is therefore covered by the arbitration clause.[7]
The Arbitration Act provides that courts shall decide the issue of arbitrability based upon their interpretation of the contractual intent of the parties.[8] Courts should, however, defer to arbitration between commercial entities unless there is a clear intent that the arbitration clause does not apply; doubts as to the parties' intent are to be resolved in favor of arbitration.[9]
*545 Concepts contends that the controversy falls exclusively under the October Agreement, which it describes as "separate and distinct" from the July and March Agreements and which does not contain an arbitration clause. The central flaw in this reasoning is that the October Agreement cannot be read apart from the other two contracts and must be viewed as a supplement to the protection afforded Concepts under the July Umbrella Agreement. Between October 1975 and March 1976, the parties worked toward a license agreement relating to Magic Sound. The evidence indicates that during this period both Mego and Concepts contemplated the addition of Magic Sound to the July Agreement.[10] The purpose of the October Agreement was to give Concepts express and additional protection in case the parties never executed the license agreement with respect to Magic Sound. This protection supplemented that guaranteed by the July Umbrella Agreement. The three contracts of July, October, and March are interrelated and must be read together to ensure Concepts' rights in Magic Sound. As such, the October Agreement is a mere extension of the July Agreement, the umbrella contract governing the continuing relationship between the two firms.[11] Consequently, the arbitration clause in the July Umbrella Agreement also applies to any alleged breaches of the October contract.[12]
This conclusion is buttressed by plaintiff's own complaint, which negates its contention that the dispute is limited to the October Agreement. Plaintiff's "Third Cause of Action" charges defendant with misappropriation of a trade secret in violation of the relationship of confidence and trust created by the July Agreement and the parties' past dealing.[13] In structuring the parties' relationship, the July Agreement established the basis for their continuing relationship, whereby Concepts would submit novel ideas to Mego, which would then choose all or some of them as Items to be incorporated into the Agreement as part of Schedule "A." But the ideas rejected in this course of dealing are not without protection under New York law: "Any one who acquires knowledge of an unpatented [trade] secret process in a confidential capacity . . . is under an obligation . . . not to uncover the secret, even if he makes no express contract to that effect."[14] The nub *546 of plaintiff's claim for relief is the contractual duty of good faith dealing implicit in the July Umbrella Agreement.[15] As a result, the broad arbitration clause of the July Agreement covers this alleged breach of contractual duty.
This Court cannot say that the arbitration clause is not susceptible of an interpretation that embraces the asserted dispute. So that plaintiff's claims can be considered in the forum agreed upon by the parties, the proceedings before the Court are stayed pending arbitration.
NOTES
[1] Act of Feb. 12, 1925, ch. 213, § 3, 43 Stat. 883, codified at 9 U.S.C. § 3:
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 an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
[2] Pl. Exh. 2, ¶ 18:
MEGO agrees that if this Agreement is terminated under any of its provisions MEGO will not itself, or through others, thereafter manufacture and sell the ITEM and all rights to the ITEM and to any patent applications filed hereunder shall revert to CONCEPTS.
[3] Id. ¶ 26.
[4] Pl. Exh. 1:
If the royalty contract on the above project is not signed by both parties by November 5, 1975, Mego loses its option, agrees not to disclose any information regarding the above project to anyone and agrees not to make or market any items predicated on the "BIG PROJECT" until 1979. It is understood that such a disclosure might harm CCI and Mego will be responsible for damages caused by such disclosure.
[5] Pl. Exh. 4 (also included as page 7, Schedule "A" of Pl. Exh. 2).
[6] Complaint ¶¶ 14, 16, 20, 24-26, 30-31.
[7] 9 U.S.C. § 3 (quoted in full at note 1 supra).
The Arbitration Act applies where there is "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction." Id. § 2; Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S. 198, 76 S. Ct. 273, 100 L. Ed. 199 (1956); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S. Ct. 682, 4 L. Ed. 2d 618, dismissed per stip., 364 U.S. 801, 81 S. Ct. 27, 5 L. Ed. 2d 37 (1960). The business of developing novel toy ideas and products for commercial manufacture, distribution, and sale described in the July Agreement clearly falls under interstate commerce.
[8] Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 8 L. Ed. 2d 462 (1962); Fuller v. Guthrie, 565 F.2d 259, 260 (2d Cir. 1977); Interocean Ship Co. v. National Ship Trading Co., 523 F.2d 527, 539 (2d Cir. 1975).
[9] Metro Indus. Painting Corp. v. Terminal Constr. Co., 287 F.2d 382, 385 (2d Cir.), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961); Wells Fargo Bank Int'l Corp. v. London S.S. Owners' Mutual Ins. Ass'n, Ltd., 408 F. Supp. 626, 630 (S.D.N.Y.1976); Griffin v. Semperit of America, Inc., 414 F. Supp. 1384, 1390-91 (S.D.Tex.1976); Singer Co. v. Tappan Co., 403 F. Supp. 322, 329 & n.6 (S.D.N.Y.1975). aff'd mem., 544 F.2d 513 (2d Cir. 1976).
[10] Frederick Pierce, Senior Vice-President of Mego, testified that in his discussions with the President of Concepts the latter "was anxious for us to make [Magic Sound] part of our agreement," Deposition of Frederick Pierce, at 38 (July 27, 1978), and "was anxious for us to proceed and incorporate this into our basic agreement of working so that we could give him enough money to allow him to develop the product," id. at 31. Concepts does not dispute this point. See Deposition of Martin Blumenthal, Vice-President of Concepts, at 6-7, 14-17 (July 28, 1978) (normal policy was to add all new ideas accepted by Mego to July Agreement; no express discussion in October on addition of Magic Sound).
[11] Cf. Lowell v. Twin Disc, Inc., 527 F.2d 767 (2d Cir. 1975); TAC Travel America Corp. v. World Airways, Inc., 443 F. Supp. 825 (S.D.N.Y. 1978).
[12] Incontrade, Inc. v. Oilborn Int'l, S.A., 407 F. Supp. 1359 (S.D.N.Y.1976); Cocotos Steamship of Panama, S.A. v. Lussino Societa di Navagazione, No. A 193-61 (S.D.N.Y. Mar. 11, 1958).
Moreover, plaintiff has failed to make out a convincing case that the dispute does not directly involve paragraph eighteen of the July Agreement, see note 2 supra. The March Agreement licensed Mego to manufacture two toys: "product two" was described as "non pre-school toys featuring characters and play situations." Pl. Exh. 3. When the March Agreement was terminated in December 1976, Mego was bound by paragraph eighteen of the July Agreement not to "manufacture and sell the Item." Plaintiff's repeated characterization of 2XL as a "play situation and game predicated on `MAGICSOUND,'" see Complaint ¶ 14; Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for a Preliminary Injunction, at 4, would indicate that 2XL may be similar enough to product two of the March Agreement to constitute a violation of this paragraph. This contractual question is best left to the arbitrator.
[13] Complaint ¶¶ 23-28.
[14] Spiselman v. Rabinowitz, 270 A.D. 548, 61 N.Y.S.2d 138, 141 (1946); accord, International News Serv. v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211 (1918); Electrolux v. Val-Worth, Inc., 6 N.Y.2d 556, 190 N.Y.S.2d 977, 161 N.E.2d 197 (1959); Dior v. Milton, 9 Misc. 2d 245, 155 N.Y.S.2d 443 (Sup.Ct.1956); Margolis v. National Bellas Hess Co., 139 Misc. 738, 249 N.Y.S. 175 (Sup.Ct.1931); Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774 (2d Cir. 1964); cf. Restatement of Torts § 757, Comment j.
[15] Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co., 30 N.Y.2d 34, 45, 330 N.Y.S.2d 329, 333, 281 N.E.2d 142, 144, cert. denied, 409 U.S. 875, 93 S. Ct. 125, 34 L. Ed. 2d 128 (1972); Galfand v. Chestnutt, 402 F. Supp. 1318, 1328-29 (S.D.N.Y.1975), aff'd sub nom. Galfand v. Chestnutt Corp., 545 F.2d 807 (2d Cir. 1976); VTR, Inc. v. Goodyear Tire & Rubber Co., 303 F. Supp. 773, 777 (S.D.N.Y.1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029640/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2046
THERESA B. BRADLEY,
Plaintiff – Appellant,
v.
CVS CORPORATION; CVS OF BETHESDA, LLC; CVS PHARMACY, d/b/a
CVS Pharmacy Store #1831; MIDAS, INCORPORATED; MIDAS AUTO
REPAIR AND SERVICE HARFORD CAR CARE; STEPHEN TENNANT; SHANE
ROSS; SAM DOPPLER; YURIY BRONFMAN; ELENA DONSKAIA; STATE
AUTO INSURANCE COMPANY; LARISSA MILLER; SCOTT PATRICK BURNS,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cv-02732-PJM)
Submitted: July 23, 2009 Decided: July 27, 2009
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Theresa B. Bradley, Appellant Pro Se. Scott Patrick Burns,
Toyja E. Kelley, TYDINGS & ROSENBERG, LLP, Baltimore, Maryland;
Frank Furst Daily, III, LAW OFFICES OF FRANK F. DAILY, PA, Hunt
Valley, Maryland; Herbert Romulus O’Conor, III, O’CONOR GRANT &
SAMUELS, Towson, Maryland; Betty Sue Diener, MARKS, O’NEILL,
O’BRIEN & COURTNEY, Towson, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theresa Bradley appeals the district court’s order
granting the Appellees’ motion to dismiss Bradley’s civil
complaint. We have reviewed the record and find no reversible
error. Accordingly, we deny as moot Bradley’s motion to vacate
this court’s dismissal for failure to prosecute and affirm for
the reasons stated by the district court. Bradley v. CVS Corp.,
No. 8:07-cv-02732-PJM (D. Md. Aug. 28, 2008). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1871854/ | 499 F. Supp. 338 (1980)
Joseph and Mary DiSALVATORE Administrator and Administratrix of the Estate of Michael DiSalvatore, Deceased
v.
UNITED STATES of America.
Civ. A. No. 76-1794.
United States District Court, E. D. Pennsylvania.
September 29, 1980.
*339 Arlene O. Freiman and James E. Beasley, Philadelphia, Pa., for plaintiff.
Charles B. Burr, II, Philadelphia, Pa., for defendant.
OPINION
JOSEPH S. LORD, III, Chief Judge.
I. PRELIMINARY STATEMENT
This case is in a somewhat anomalous posture. It was tried before me without a jury. I made findings of fact to which I applied certain conclusions of law, resulting in a verdict for defendant. Plaintiff moved for a new trial. Following oral argument on the motion, I was persuaded that I had applied an incorrect standard of law. In effect, I had given an erroneous charge to the factfinder and I therefore granted the plaintiffs' motion. I have now reconsidered the testimony presented in both trials and have reached the conclusions which follow.
Preliminarily, I adopt and reaffirm the findings of fact and conclusions of law previously filed, except as hereinafter noted, and as may be augmented by any additional findings of fact or conclusions of law appearing in this opinion. Finding of Fact No. 8 is amended to add as trial references N.T. 205, 270.
Finding of Fact No. 8A is added following Finding of Fact No. 8 as follows: Defendant's failure to provide or require a safety net in the open shaft was negligence.
Finding of Fact No. 10 is stricken.
Finding of Fact No. 12 is amended to read as follows: it is impossible to determine from the evidence (a) whether, at the time of the accident, there was one plank remaining (N.T. 210, 212, 224) or three (N.T. 193, 194, 195); (b) whether decedent was caused to fall because he attempted to remove a plank alone (N.T. 193, 195) or because of the warped and rough condition of the plank he was standing on (N.T. 193, 196, 200, 220); (c) whether it was unsafe or improper for one man to continue to remove planking alone (N.T. 125, 213).
Finding of Fact No. 14 is amended to read as follows: The absence of a required safety device, i. e., a net hung in the shaft, was the cause of DiSalvatore's death, although not the precipitating cause of his fall.
Finding of Fact No. 15 is amended to read as follows: Ordinarily the removal of planking for an elevator shaft is a two-man job. However, there is an unwritten rule of construction work that an employee found standing idly, even if awaiting the return of his "buddy" to continue a two-man job, is subject to immediate dismissal (N.T. 125, 196). The following findings are added following Finding of Fact No. 15.
Finding of Fact 15AIn continuing to remove the planking alone, plaintiff acted under the economic duress of the possible loss of his job if he stood idle and in working alone decedent did not act voluntarily or unreasonably (N.T. 125).
*340 Finding of Fact 15BDecedent was not guilty of contributory negligence or voluntary assumption of risk.
Finding of Fact 15CIf a safety net had been in place in the elevator shaft immediately below the sixth floor, decedent would have suffered no injuries from the fall and his death resulted from the absence of the safety net.
Finding of Fact No. 17Q is amended by striking the second sentence therefrom.
II. NEGLIGENCE and CAUSATION
Although Pennsylvania law governs the substantive issues of liability in this action, 28 U.S.C. § 1346(b), I face a formidable task in determining exactly what Pennsylvania law is as applied specifically to the facts before me. "[T]he concept that a federal court must determine state law is somewhat misleading inasmuch as it implies the existence of a readily accessible and easily understood body of state law." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir. 1980) (citation omitted). There is a body of state law pertinent to the facts of this case, but it is far from being "easily understood." Since Pennsylvania law is presently unclear, then, it is my job to predict what a Pennsylvania court would do if confronted with the facts before me. Of course, although this is not a diversity case, I adopt the same approach of making that prediction as if it were.
Such an estimate cannot be the product of a mere recitation of previously decided cases. Rather, as in any diversity case, a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts.
Becker v. Interstate Properties, 569 F.2d 1203, 1205-06 (3d Cir. 1977), cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
It will therefore be necessary to analyze the Pennsylvania cases and to resolve any apparent conflicts by the application of doctrinal trends, internal philosophical changes in the highest Pennsylvania court itself, federal decisional law applying state law, the Restatement of the Law, policies underlying state decisions and the presence or absence of resultinfluencing factors.
Defendant relies exclusively on Barber v. John C. Kohler Co., 428 Pa. 219, 237 A.2d 224 (1968) in arguing that plaintiffs have failed to prove the necessary causal connection between the negligence of defendant and the accident. In Barber, plaintiff was working on a scaffold three feet above the ground. A brace on the scaffold slipped, causing plaintiff to fall into an open hole sixteen feet deep. He alleged that defendant's negligent failure to cover the hole caused his injuries to be more severe than they would have been had the hole been covered. The lower court sustained a demurrer which was affirmed. The Supreme Court said:
For appellant's injury resulted not from appellee's negligence, but from the slipping of the brace.... [W]hile appellant may have sustained greater injuries by falling to the bottom of the hole than he would have received had the hole been covered, that has no bearing on the cause of the fall. Whether the fall was caused by appellant's own negligence, as in the cases cited, or by a third party's negligence with regard to the scaffold cannot and need not be determined here. The same result obtains either way, for it is clear that appellee was not the cause of the fall.
... Moreover, a long line of cases in this court has held that the determination of the extent, if any, of incremental injury resulting from defendant's negligence is impossible to determine. This court has continually stated that, in a case like the instant one, a lessening of injury, absent defendant's negligence, is pure conjecture.
Id. at 221-22, 237 A.2d at 225-26.
In Barber, the court primarily relied on two earlier Pennsylvania Supreme Court cases, Frisch v. Texas Co., 363 Pa. 619, 70 A.2d 290 (1950) and Zlates v. Nasim, 340 Pa. 157, 16 A.2d 381 (1940).
*341 In Frisch, plaintiff slipped on the sidewalk and then fell into defendant's nearby open grease pit. The trial court directed a verdict for defendants which was affirmed. The Supreme Court said:
The court below very properly said: "The presence of the defendant's grease pit had no connection with that slipping or tripping.... Had the opening been covered at the time, the plaintiff would have landed on the cover instead of in the pit, and whether he would have been hurt more or less is pure conjecture."
....
An analysis of these cases makes it clear that the grease pit was in no way the cause of plaintiff's injury and recovery cannot be predicated upon the mere conjecture that his injuries might have been less serious had the grease pit not been there.
363 Pa. at 622, 624, 70 A.2d at 292, 293.
Zlates is another fall case in which defendant's conduct had no bearing on plaintiff's initial fall. In that case, plaintiff left defendant's porch via a screen door. When she pushed the door open, it stuck and stopped against the side of the building. She reached out to close it, but lost her balance and fell into an open areaway and down the cellar steps. The Supreme Court of Pennsylvania affirmed the trial court's denial of recovery, saying:
Damages cannot be awarded because the unguarded areaway was not the proximate cause of her fall. The proximate cause was her leaning so much toward the screen door as to lose her balance. Furthermore, this was absence of care on her part and, therefore, contributory negligence.... While she may have sustained greater injuries by falling down the cellar steps than she would have received had she dropped to the cement floor of the porch, that makes no difference in searching out the cause of her fall. With that the unguarded stair opening had nothing to do.
340 Pa. at 158-159, 16 A.2d at 381.
Barber, Frisch and Zlates have a superficial similarity to this case. But they are not, I think, determinative. Upon analysis, these cases deny recovery on two grounds: (1) the truism that the condition on which plaintiff's claim is based, e. g., the uncovered pit, was not the proximate cause of the fall; (2) that the assessment of incremental injury would be too speculative to support a jury finding.[1]See also Elliott v. Allegheny County Light Co., 204 Pa. 568, 569, 54 A. 278, 279 (1903).
By way of contrast there is another group of cases which permit recovery whose operative facts are qualitatively no different from the Barber line facts. Yet, these cases permit recovery. Over one hundred years ago, in Grant v. Erie, 69 Pa. 420, 8 A. 272 (1871), the City of Erie was authorized to make and establish a number of reservoirs to supply water in case of fires. The reservoirs were erected but fell into decay. Plaintiff's property was consumed by fire because of insufficient water. In permitting recovery, the court said:
The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon and not the absence of the officer.
Id. at 423, 8 A. at 274.
In Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d 875 (1964), the Supreme Court of Pennsylvania held that a defendant who failed to maintain a fire *342 hydrant in proper condition was liable to a homeowner whose house burned to the ground because there was no water to fight the fire, even though the defendant had nothing to do with starting the fire. In his opinion, Judge Musmanno noted that:
In arguing before this Court, the water company asserts that it was not the lack of water which destroyed Plaintiffs' homeit was the fire. This is like saying that a person who starves to death dies not because of lack of food but because of physical debility.
414 Pa. at 202, 199 A.2d at 876.
In Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968) the plaintiff's buildings were first weakened by an explosion at defendant's adjoining apartment and then levelled as a result of nearby excavation. Plaintiff argued that because of defendant's negligence in permitting the explosion to occur, the damages to its building caused by the excavation were greater than they would have been otherwise. The Pennsylvania Supreme Court allowed recovery, holding that one who creates a dangerous condition is liable for the results even though his negligence is not entirely responsible for the damage. The court quoted with approval from Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 11, 130 A.2d 123, 130 (1957): "One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third party may have contributed to the final result." 431 Pa. at 353, 246 A.2d at 380 (citation omitted).
In both the Barber line and the Doyle-Bleman line, the condition created or maintained by the defendant was not the sole factor in the damageproducing concatenation of events. In both lines of cases there was an intermingling of damage resulting from factors not connected to defendant and those resulting from factors for which defendant was responsible. In one group recovery was denied; in the other, it was allowed. In view of this apparent conflict,[2] my function is to predict which reasoning Pennsylvania would adopt today and which result it would reach. For the reasons which follow I have concluded that Pennsylvania would allow recovery.[3]
1. I endorse and reiterate what Judge Scalera said in Hardy v. Volkswagen of America, 65 F.R.D. 359, 362 (W.D.Pa.1975) and his quotation of Judge Aldisert's words:
To begin with, we note that the courts of Pennsylvania, once known for being conservative in the area of torts, have become more liberal. "In recent years we have witnessed rapid, if not revolutionary, development in judgemade tort law by Pennsylvania courts," said Circuit Judge Aldisert in Quinones v. United States, 492 F.2d 1269, 1278 (3d Cir. 1974). "It will be noted that in each of these developments the Pennsylvania court was expanding and not contracting liability of defendants and increasing recoveries for plaintiffs." 492 F.2d at 1279.
This expansion of liability in part reflects a developing and humane policy of treating compensation for personal injuries as a cost of doing business, or in other words, as a cost of making money. The Pennsylvania Supreme Court has responded to this humanitarian recognition. Ayala v. Philadelphia Bd. of Educ., 453 Pa. 584, 305 A.2d 877 (1973), which abolished the doctrine of governmental immunity, illustrates the liberalized approach of Pennsylvania courts. It also illuminates the policy of just distribution of loss: "Imposition of tort liability will, thus, be more responsive to current concepts of justice. Claims will be treated as a cost of administration and losses will be spread among all those benefited by governmental action." 453 Pa. at 599, 305 A.2d at 884.
Equally enlightening on Pennsylvania's shift in attitude is Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), adopting *343 the rule of liability without impact.[4] One of the arguments advanced by defendant was the difficulty of establishing causal connection, an argument similar to the Barber-Frisch courts' holdings that apportionment of incremental damage would be too speculative. Said Justice Roberts: "Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury." Id. at 408, 261 A.2d at 87 (emphasis in original).
What has emerged, then, is a conflict in earlier decisional law and a present liberal trend founded upon an enlightened and humanitarian policy.
2. Pennsylvania has long been known for the adherence of its holdings to the views of the Restatement of Laws. Indeed, in at least one instance, the Pennsylvania Supreme Court imposed an even stricter standard of conduct upon defendants than does the Restatement. In Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), the court held that the words "unreasonably dangerous" used in Restatement of Torts (Second) § 402(a) should not be included in a jury charge.
Barber's causation reasoning focused on the cause of the accident rather than on the cause of the harm, i. e., in this case, death. The possible enhancement of the injuries, said the court, "has no bearing on the cause of the fall." 428 Pa. at 222, 237 A.2d at 225. And further, the court said: "Nor is appellant's contention apt that appellee's negligence was the proximate cause of his injuries because without appellee's negligence, appellant would have fallen merely three feet rather than nineteen feet.... [T]he extent of the injuries is irrelevant to a determination of the cause of the accident." Id. at 222, 237 A.2d at 225-26.[5]Cf. 428 Pa. at 222-23, 237 A.2d at 226-27 (Roberts, J., dissenting).
This approach is at odds with that of the Restatement of Torts (Second) § 431 which states:
§431. WHAT CONSTITUTES LEGAL CAUSE
The actor's negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. (Emphasis added.)
Certainly under the Restatement formulation and my finding as to injuries (Finding of Fact No. 15C), the absence of the safety net was the cause of the harm.
3. This case is conceptually a "second accident" case. There is the original slipping or tripping followed by the unbroken fall down the elevator shaft with greatly enhanced injuries. It is like the fall from the three foot high scaffold followed by the sixteen foot fall into the open pit, again with increased injuries. It is also like the second accident automobile cases where the manufacturer is in no way responsible for the harm initiating accident, but where a defect in design or construction caused the injuries to be more serious than they would have been absent the defect. Acceptance of the Barber rationale would compel Pennsylvania to deny recovery in the second accident automobile cases. The Pennsylvania Supreme Court has not yet spoken on this issue, but it seems highly unlikely that Pennsylvania would opt to deny liability in those cases. See Hardy, supra; Dyson, supra; Householder v. General Motors Corp., 33 Beaver County Legal J. 30 (C.P.1973).
I am convinced that, in its present posture, the Pennsylvania Supreme Court would adopt no such reversion to the past.
*344 4. Barber and its precursors also denied liability because of the asserted difficulty of apportioning damages between the original triggering accident, not due to defendant's negligence, and the increase in the seriousness of injuries which was brought about by defendant's negligence. I conclude that this difficulty would no longer be a viable basis for denying recovery in Pennsylvania. See Niederman v. Brodsky, 436 Pa. at 408, 261 A.2d at 87.
Most important, however, is that I am charged with predicting how Pennsylvania would approach this case under its own particular facts. I have found that had a safety net been in place, decedent would have suffered no injuries and that his death was the result of the absence of the net. Finding of Fact No. 15C. There is therefore under the facts here no room for speculation or conjecture as to the amount of damage caused by defendant's negligence.
5. For all of the foregoing reasons I predict that in this case, Pennsylvania would follow the principle that the question of proximate causation "is almost always one of fact for the jury." Bleman v. Gold, 431 Pa. at 354, 246 A.2d at 380.
III. CONTRIBUTORY NEGLIGENCE
In my original adjudication I found plaintiff guilty of contributory negligence. I am now convinced I was in error because I failed to accord proper weight to the burden of proof.
Two propositions are too well settled to require citation of authority. First, a decedent is presumed to have exercised reasonable care for his own safety; second, the burden of proving contributory negligence is on the defendant. I am not convinced that the defendant has sustained that burden.
The evidence presented by defendant on the issue of contributory negligence was so conflicting that I find myself as a factfinder left to speculation and conjecture. William Simpson testified that originally there had been five planks covering the elevator shaft. Two had been removed by DiSalvatore and his co-worker, Harry Rolf. According to Simpson, decedent was standing in the middle of the fourth plank attempting to remove the third plank when he fell. According to Rolf, however, they had started with six or seven planks and had removed all but one. It would defy the laws of nature to conclude that decedent was standing on one plank removing another, as Simpson testified, if there was only one plank remaining, as Rolf testified.
Simpson was the only eyewitness to the accident and his testimony in itself was conflicting and uncertain as to the cause of the decedent's fall. He testified:
Well, I observed that he tried to pick it up and lift it and remove it and he hadI believe that the one that he was standing on was a little warped and he had lost his balance trying to pick this other one up, and he fell forward with it.
N.T. 193-94. Again:
Well, in other words, he had leaned over, but I guess the plank was too heavy to pick up for himself, and then when he tried to pick it up he had lost his balance, and the plank that he was standing on I guess was warped a little, and he had lost his balance and had fell forward with it, and then went over in between where he had picked up 1 and 2 planks.
N.T. 195-96.
On the other hand, the testimony was consistent on one critical point. Both Simpson and Rolf testified that the planking was uneven, difficult to walk on, easy to slip on or to turn one's ankle on, and if that happened, the worker would be likely to fall into the open shaft. From this testimony, the factfinder could legitimately infer that the condition of the planking caused decedent's fall.
All this evidence makes a finding as to whether the fall was caused by the warped planking, by the decedent's trying to do his job alone, or by the rough, uneven surface of the planking would be nothing but a guess.
In Mumma v. Reading Co., 247 F. Supp. 252 (E.D.Pa.1965), I said: "[T]he sufficiency *345 of the evidence to take the issue of contributory negligence to the jury is to be tested by the same standards that are used to test the sufficiency of plaintiff's evidence on the issues of negligence and proximate cause." Id. at 254 (citations omitted).
In Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 59, 137 A. 104, 107 (1927), the court, quoting from Goater v. Klotz, 279 Pa. 392, 396, 124 A. 83, 84 (1924) said:
Where the burden of proof is upon the plaintiff [here the defendant] to establish certain facts ... and his testimony, or that of his witnesses, on the question, is so contradictory as to present to the jury no basis for a finding, except a mere conjecture, a nonsuit is properly entered ....
The Mudano court also emphasized the importance of the burden of proof:
Had the testimony referred to a subject as to which the burden of proof was on the plaintiff [here, on defendant], the result might have been different, for the court is not entitled to submit evidence which would merely enable the jury to guess at a fact in favor of a party who is bound to prove it.
Id.
Since I would have to guess at the cause of decedent's fall, I cannot say that any negligence on his part was a causative factor in his death.
Finally, even if the testimony pointed unequivocally to decedent's unassisted continuance of his work as the cause of his fall, I would still hold that plaintiffs are not barred from recovery. Defendant has pleaded contributory negligence and assumption of risk, but has only argued contributory negligence. However, in this case the difference is not significant. "The great majority of the cases involving assumption of risk have been of this type, where the defense overlaps that of contributory negligence. The same kind of conduct frequently is given either name, or both. Ordinarily it makes no difference which the defense is called." Restatement of Torts (Second) § 496A, Comment d. See also Prosser, Law of Torts 441 (4th ed. 1971).
Here, the defendant can only and does only point to a simple act as a basis for finding contributory negligence, decedent's working alone. There is no evidence and no claim that decedent mishandled the plank or that his feet were placed wrongly or that he stood too near to the edge of the plank or that he was not looking at what he was doing. There is only the fact that he worked alone.
"The question of contributory negligence is usually one of fact for determination by the jury." Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 414 (3d Cir. 1967). Accord, Eder v. Lansberry, 459 Pa. 621, 624-25, 331 A.2d 165, 166 (1975). "In passing on the question of negligence, courts and juries must consider the realities of the situation." Mogren v. Gadinas, 358 Pa. 507, 512, 58 A.2d 150, 152 (1948). The reality here was that if DiSalvatore had stood idle in his teammate's absence, his job would have been in jeopardy. The law is not so cruel as to demand a choice between economic devastation and a potential danger inherent in his job. Prosser states:
Even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys all idea of freedom of election.
Prosser, Law of Torts 452.
There is a clear indication of how Pennsylvania courts would react to the situation of economic duress. In Houston v. Tri-State Machinery, 2 Pa.D. & C.3d 796 (C.P. Beaver County 1977), plaintiff was injured while using a defectively guarded saw. Plaintiff did not deny that he was aware of the danger. In sustaining a jury verdict for plaintiff, the court referred to "`the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger....'" Id. at 798, quoting Restatement of Torts (Second) § 402A, Comment n.
*346 One hired as a laborer on a construction site is simply not free to choose which equipment he will operate and which he will not. His use of dangerous machinery is dictated by the terms of his employment, and it would be absurd for this court to hold that he unreasonably and voluntarily used a product he was directed by his superiors to use....
... There is an obvious distinction to be drawn between the employe-employer situation and the consumer-seller situation. The routine consumer who purchases an obviously defective product can and should refuse to use it in light of the obvious danger presented. While the consumer has alternatives to using the product, the employe simply does not, and his "consent" is in reality predicated upon his maintaining his status as an employe.
Id. at 799. In view of the recent liberalization in Pennsylvania tort law, see supra, I predict that its Supreme Court would adopt similar reasoning and would not consider decedent's conduct negligent as a matter of law.
For the same reasons, which I need embroider no more, I find as a fact that decedent was neither contributorily negligent nor voluntarily or unreasonably assumed the risk.
IV. CONCLUSIONS OF LAW
Conclusions of Law 1 and 2 of my previous adjudication are adopted and reaffirmed. Conclusions of Law Nos. 3, 4 and 5 are stricken and the following substituted in their place as my Conclusions of Law.
3. Pennsylvania would hold, and I therefore conclude, that the absence of a safety net was negligence and that this negligence was the proximate cause of decedent's death.
4. Decedent is presumed to have exercised reasonable care for his own safety and the burden is on defendant to prove that decedent's negligence was the proximate cause of his death.
5. To conclude that any negligence of decedent was the proximate cause of his death would involve only speculation and a factfinder may not base a conclusion on mere conjecture.
6. Defendant has not sustained the burden of proving that any negligence of decedent was the proximate cause of his death.
7. Plaintiffs are entitled to a verdict in their favor and against defendant on liability.
NOTES
[1] "[T]he jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture." Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138, 153 A.2d 477, 479 (1959).
[2] See Dyson v. General Motors Corp., 298 F. Supp. 1064, 1074 (E.D.Pa.1969).
[3] Provided of course decedent was not guilty of contributory negligence, discussed infra.
[4] Further expanded by Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) holding that plaintiff's presence within the zone of danger is not a prerequisite to recovery. See also Bliss v. The Allentown Public Library, 497 F. Supp. 487 (E.D.Pa.1980) (Troutman, J.).
[5] See Zlates v. Nasim, 340 Pa. at 158, 16 A.2d at 381: "Damages cannot be awarded because the unguarded areaway was not the proximate cause of her fall." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3812036/ | This action originated in a justice court of Kingfisher county, where the defendants in error, hereafter referred to as plaintiffs, sought to recover an alleged balance due on an account from the plaintiff in error, hereafter referred to as defendant. The defendant by demurrer and answer challenged the sufficiency of the bill of particulars to state a cause of action and pleaded in bar the statute of limitations. Trial in the justice court resulted in a judgment in favor of plaintiffs, and their recovery was assessed at the sum of $100. The defendant appealed the cause to the district court of said county, where it was tried de novo without the intervention of a jury. The defendant demurred to the evidence of the plaintiffs on the ground that they were not the real parties in interest; when this was overruled, he stood on his demurrer and declined to offer any evidence. The trial court thereupon rendered judgment in favor of the plaintiffs for the sum of $174, with interest thereon at the rate of 6 per cent. per annum from November 9, 1937. This appeal is from the judgment so rendered and the order which overruled and denied defendant's motion for a new trial.
The defendant assigns twelve specifications of error, which he presents under two propositions, which, in substance, are: First, the action was not prosecuted by the real parties in interest; second, the action was barred by the statute of limitations. In the case of Okmulgee Producing Refining Co. v. Brown, 109 Okla. 215, 235 P. 546. this court said:
"Whilst every action must be prosecuted in the name of the real party in interest, that question constitutes new matter and should be raised by answer when such defect does not appear on the face of the pleadings."
See, also, Pomeroy's Code Remedies, par. 587.
The bill of particulars of the plaintiff was sufficient to apprise the defendant as to whether the plaintiffs were the real parties in interest, but, notwithstanding this fact, the defendant did not attempt to raise the question by either demurrer or answer. Under such circumstances the defendant must be deemed to have waived the objection. Mainard v. Fowler,171 Okla. 582, 42 P.2d 878; Culbertson v. Mann, 30 Okla. 249,120 P. 918; Harrah State Bank v. School Dist. No. 70, Oklahoma County, 47 Okla. 593, 149 P. 1190. We therefore hold that the objection that plaintiffs were not the real parties in interest, if it were otherwise tenable, came too late.
The remaining contention of the defendant, to the effect that his plea of the statute of limitations in bar should have been sustained, is likewise untenable. The evidence of the plaintiffs, standing uncontradicted, was sufficient to establish the fact that the defendant had made a partial payment upon the account which had been credited thereon under circumstances which warranted the clear inference that the defendant then recognized the debt as an existing liability and made manifest his intention to pay it. This, if done, was sufficient to toll the statute. Berry v. Oklahoma State Bank,50 Okla. 484, 151 P. 210; First State Bank v. Lucas,168 Okla. 406, 33 P.2d 622. When the defendant demurred to the evidence of the plaintiff he thereby admitted all of the facts which such evidence tended to establish and all reasonable *Page 485
inferences to be drawn therefrom. Oilton State Bank v. Ross,108 Okla. 24, 234 P. 567; D'Yarmett v. Cobe, 51 Okla. 113,151 P. 589. Since the action was one at law tried to the court without the intervention of a jury, the judgment of the court must be given the same force and effect as the verdict of a properly instructed jury, and since such judgment is reasonably supported by competent evidence in the record, it should not be disturbed. McConkey v. Brittain, 181 Okla. 53, 72 P.2d 348; Sutherland v. Lambard-Hart Loan Co., 179 Okla. 486,66 P.2d 523. The record presents no reversible error.
Judgment affirmed.
BAYLESS, C. J., and RILEY, OSBORN, GIBSON, and DANNER, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3812037/ | This is an original proceeding brought by the Special Indemnity Fund, to review an award made to Homer Davidson, respondent. Armour and Company is joined as respondent herein for the reason that the award is a joint award under the provisions of the 1943 Act, S. L. 1943, page 258, 85 O. S. 1943 Supp. §§ 171-176.
On March 3, 1933, the respondent sustained an accidental injury to his right thumb, which the State Industrial Commission found resulted in a 20 per cent permanent disability to said thumb and awarded 12 weeks compensation therefor. That compensation has been satisfied, and said injury has no bearing upon the present action, except as it has become material under the provisions of said 1943 Act, which provides that in case a "physically impaired person" receives a compensable injury which results in "additional disability" due to the fact of his previous physical impairment, the "additional disability" shall be paid by the Special Indemnity Fund.
The claim now under consideration is for a subsequent injury received by the respondent to his left index finger on February 10, 1944, while in the employment of Armour and Company and for which the State Industrial Commission has found a 20 per cent permanent disability to said finger, and has awarded him 7 weeks' compensation therefor as provided by 85 O. S. 1941 § 22 (3).
No difficulty is encountered up to this point. But in addition to allowing the respondent his percentage on his left finger, the State Industrial Commission allowed him for an "additional disability" of 4 3/4 per cent to his body as a whole, or 4 3/4 per cent of 500 weeks, or 23 3/4 weeks, to be paid by the Special Indemnity Fund and amounting to the sum of $427.50, less the sum of $110.76 paid for the partial disability to the thumb, and less the sum of $126 paid for the partial disability to the finger, leaving the balance of $190.74 to be paid by the Special Indemnity Fund as "additional disability." This proceeding is prosecuted to review said award. The question for decision is whether any "additional disability" should be allowed the respondent from the Special Indemnity Fund by reason of the fact that he had a preexisting disability to his right thumb due to his previous injury. To answer this question, it is necessary first to consider some preliminary matters.
Said 1943 Act was not amendatory to the Workmen's Compensation Law, but was merely supplementary thereto. Special Indemnity Fund v. Farmer, 195 Okla. 262, 156 P.2d 815. It did not create any new benefits or enlarge the right to compensation or increase the amount thereof. It merely shifted the burden of paying the additional permanent disability from the employer or his insurance carrier to the Special Indemnity Fund. Prior to the passage of said 1943 Act the burden of paying the "additional disability" due to the fact that the injured employee was a "physically impaired person" fell entirely on the employer or his insurance carrier. Nease v. Hughes Stone Co., 114 Okla. 170, 244 P. 778; Mid-Kansas Oil
Gas Co. v. State Industrial Com., 165 Okla. 15, 22 P.2d 919; Protho v. Nette, 173 Okla. 114, 46 P.2d 942. This fact created an additional hazard upon employers, and made it most difficult for a "physically impaired person" to secure employment. The Act was passed for the purpose of correcting this condition, by providing that in such cases where such "additional disability" results the Special Indemnity Fund shall bear that additional burden.
It must be kept in mind that Workmen's Compensation Laws are creatures of statute and that the State Industrial Commission can act only by authority of statute. The statute provides that the loss of any two of the major specific members (eyes, hands, feet, and legs) shall, in the absence of conclusive proof to the contrary, constitute *Page 120
permanent total disability to the body as a whole. 85 O. S. 1941 § 22(1). Thus, this provision constitutes statutory authority to translate loss of two or more major specific members into an injury to the body as a whole. From such statutory provisions it is recognized that a percentage of loss of any two of such major specific members may be computed into a disability to the body as a whole by adding the percentages and dividing by two. Maryland Casualty Co. v. State Industrial Commission, 139 Okla. 302, 282 P. 293. But as to the minor specific members (thumbs, fingers, and toes) no such statutory provision is made. On the contrary, the statute specifically states the amount of compensation in terms of weeks to be given for each such minor member. 85 O. S. 1941 § 22(3).
In the absence of a statute authorizing the combining of injuries to two minor specific members into an injury to another member, or into an injury to the body as a whole, the State Industrial Commission has no authority to do so without competent evidence that an "additional disability" has resulted by reason of the pre-existing injury. Such "additional disability" cannot, therefore, be presumed as a matter of law by injuries to minor specific members. The second injury might or might not create an "additional disability" by reason of the first injury depending upon the facts established by the evidence. Thus, in Special Indemnity Fund v. Farmer, above, we held that the loss of more than one finger on the same hand may constitute a percentage of loss to the hand as a whole provided there is competent evidence to establish that fact.
In the case at bar there was no evidence introduced or offered to prove any "additional disability." On the contrary, the evidence, including the medical evidence, shows that neither injury entered the hand. In view of the foregoing, we hold that there was no authority, either under the law or the evidence, to warrant a finding of any "additional disability."
The award is, therefore, vacated in so far as it relates to "additional disability" and the attorney fee for same.
GIBSON, C.J., and RILEY, OSBORN, BAYLESS, WELCH, DAVISON, and ARNOLD, JJ., concur. CORN, J., dissents. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3812038/ | The subject-matter out of which this appeal arises has twice been before this court. Certain land in Creek county was allotted to Robert Marshall, a minor Creek freedman. Sometime about 1909, while a minor, Robert Marshall was married and thereafter a decree was entered in the district court of Creek county conferring majority rights upon him. He then, while under the age of 21 years, executed certain instruments purporting to convey a portion of said land and the oil and gas rights therein and an option to purchase the remaining interest in said land. His grantees thereafter executed oil and gas leases on the land, which were assigned to the Oklahoma Oil Company. Thereafter Robert Marshall brought an action in the district court to set aside the conveyances theretofore made by him. Judgment was rendered against him, which became final, and motion to vacate this judgment was finally denied in June, 1913. In June, 1910, said Robert Marshall was declared an incompetent by the county court and a guardian was appointed for him. Thereafter an attempted settlement of the litigation was had between the guardian and the defendant in the action then pending. Thereunder the land was reconveyed to Marshall, but the oil and gas leases which had been executed by the grantees of Marshall were confirmed; a portion of the oil and gas rights were also retained by the grantees. This settlement was approved by the county court. About July 12, 1915, the Tidal Oil Company became the owner of the oil and gas leases. In the meantime several wells had been drilled on the land and oil and gas were being produced therefrom. On October 13, 1916, after Marshall had become 21 years of age, and had been discharged from guardianship, he conveyed the land to J.P. Flanagan. Thereafter Flanagan brought an action against the Tidal Oil Company to quiet title to the land and for an accounting for the oil and gas produced therefrom after October 13, 1916. Robert Marshall commenced this action against the Tidal Oil Company to recover for the oil and gas taken from the land between July 12, 1915, and October 13, 1916. Flanagan was finally adjudged to be the owner of the land by virtue of the deed made to him by Marshall oil October 13, 1916. Tidal Oil Co. v. Flanagan, 87 Okla. 251, 209 P. 729. Robert Marshall died in September, 1919, and Walton J. Miller was appointed administrator of his estate, and the cause was revived in his name. Judgment was rendered by the lower court in favor of defendant. That judgment was reversed by this court (Miller v. Tidal Oil Co., 106 Okla. 212, 233 P. 696), and the cause was remanded for a new trial. Upon retrial in the district court judgment was again entered in favor of the defendant, apparently upon the ground that Marshall had become of age at the time his motion to vacate the judgment in his original action to recover the land was denied, and upon the further ground that the compromise agreement entered into was valid. This judgment was also reversed upon appeal to this court. Miller v. Tidal Oil Co., 130 Okla. 133, 265 P. 648. The title to the land was finally adjudged to have been in Robert Marshall until October 13, 1916. The only question then left was on the accounting for the value of oil produced from said land during the period between July 12, 1915, and October 13, 1916. The cause was remanded for trial on that question. Trial was had and upon the evidence presented the trial court found that the defendant in good faith during said period expended in the development of the land for the production of oil and gas therefrom the sum of $23,143.50; that the defendant had likewise expended in operating the property during said *Page 157
period the sum of $7,236.33, and had paid gross production tax on the oil and gas so produced in the sum of $615.15; that the value of oil and gas produced by defendant from said premises during said period was $25,631.37; that the expenditure so made by defendant exceeded the value of the oil and gas produced during the period in the sum of $5,398.65, and that plaintiff was not entitled to receive the highest market value of the oil and gas produced prevailing at any time subsequent to the production thereof, and before the trial of said cause; and therefore found that defendant was not indebted to plaintiff in any sum. Judgment was rendered for the defendant. From these findings and judgment plaintiff appeals.
It is first contended that plaintiff is entitled to receive the highest market value of the oil between the time it was taken from the land and the time of the trial. This contention is based upon subdivisions 1 and 2 of section 5999, C. O. S. 1921 [O. S. 1961, sec. 9986], which provides:
"The detriment caused by the wrongful conversion of personal property is presumed to be:
"First: The value of the property at the time of conversion with interest from that time, or
"Second: When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party."
In his prayer plaintiff prayed for judgment for the value of the oil and gas "at the highest market value thereof up to and including the day of the trial of this cause."
Thereby plaintiff committed himself to the provisions of the second subdivision of section 5999, supra, and based his right of recovery at the highest market value on the question of whether or not his action had been prosecuted with reasonable diligence.
The trial court made no special findings on the question of whether or not the action had been prosecuted with reasonable diligence, but included in his findings that plaintiff was not entitled to receive the highest market value. This of necessity included a finding, in effect, that plaintiff had not commenced or prosecuted the action with reasonable diligence. This question was made an issue at the trial, and both parties introduced evidence thereon.
The petition alleges that plaintiff reached his majority on January 22, 1916. He conveyed the land to Flanagan October 13, 1916. He did not commence this action until January 18, 1918, four days less than two years after he reached his majority and 15 months after he conveyed, by quitclaim deed, all his interest in the land to Flanagan.
Defendant filed its answer February 25, 1918. Plaintiff filed a demurrer to the answer April 22, 1918. The demurrer was not passed upon until September 20, 1919. The case was first called for trial in October, 1920, about four years after plaintiff had conveyed his interest in the land. Plaintiff contends that the Legislature in framing the statute saving to minors two years after reaching their majority to bring an action, evidently took into consideration their lack of business experience and training and determined such period to be reasonable, and that from this, by inference, we should say that if the action is commenced within two years' time it is commenced with reasonable diligence.
A number of cases are cited which, in effect, hold that reasonable diligence is that diligence which would be deemed reasonable by reasonable and prudent men under the same circumstances. But merely bringing an action within the limitation prescribed by law can hardly be said to be with reasonable diligence where a plaintiff is seeking to hold a defendant liable for the highest market value for the wrongful conversion of personal property, especially that which is subject to the great fluctuation in value such as crude oil, and where such property was steadily increasing in value as in the instant case.
Section 5999, supra, fixing the measure of damages for wrongful conversion of personal property, is identical with the North Dakota statute on the same subject. In Pickert v. Rugg,1 N.D. 230, 46 N.W. 446, it was held:
"To entitle a person to recover the highest market value between the time of the conversion of property and of the rendering of the verdict, he must affirmatively show such facts as establish clearly that he has commenced and prosecuted his action with reasonable diligence. No presumption will be indulged in his favor and the statute will be strictly construed."
It was there held that delay of eleven months in bringing the action was fatal to plaintiff's claim that he had prosecuted to action with reasonable diligence *Page 158
In First Natl. Bank v. Minneapolis Northern Elevator Co.,8 N.D. 430, 79 N. IV. 874, it was held, as a matter of law, under facts which showed an unexplained delay of eleven months in commencing its action, that, the plaintiff had not prosecuted its action with reasonable diligence, and could not, therefore, recover the highest market price.
In Funk v. Hendricks, 24 Okla. 837, 105 P. 352, it was held that what constitutes reasonable diligence under the section of the statute here involved is one of law for the court.
In First Natl. Bank v. Carroll, 103 Okla. 5, 229 P. 165, where the facts showed that the plaintiff had knowledge on December 16th that a ticket which entitled the holder to a bale of cotton represented thereby and of which plaintiff claimed he was the owner, was outstanding, and learned in the following September that the bale of cotton had been sold, and waited until November 26th of that year to bring his action, it was held that the facts did not constitute reasonable diligence within the meaning of section 5999, supra, notwithstanding the statute of limitation gave him two years after the conversion in which to bring his action.
We have been cited to, no case, and we have found none, which, holds the withholding of the commencement of an action such as this for a period of 15 months to be reasonable diligence within the meaning of subdivision 2 of said section so as to entitle the plaintiff to recover the highest market price of the property converted.
Aside from whether or not plaintiff used reasonable diligence in bringing the case to trial after it was commenced, we hold that, because of the unexplained delay in bringing the action, the trial court did not err in holding plaintiff not entitled to recover the highest market price of the oil between The time of its taking and the trial.
Plaintiff contends that defendant is not entitled to offset the cost of development and production against the value of the oil and gas taken during the accounting period. This contention is based upon the proposition that the original attempted transfer of the title by Marshall being, as stated in Tidal Oil Co. v. Flanagan, supra, "in violation of the law, therefore contrary to public policy and ineffectual as a basis of title by estoppel or otherwise," defendant could not have been in good faith in its claim under the leases assigned to it.
The record discloses that the original transfers were made in 1909. Prior thereto majority rights had been conferred upon Robert Marshall by the district court of Creek county. Under the Oklahoma statute then in force, the marriage of a minor gave him full right to deal with his real estate, In 1910, Marshall brought suit to have the transfers canceled and to recover the property.
This case was tried in the district court, and judgment was rendered upholding the deed. No appeal was taken and the judgment became final. In 1913, a complete settlement was had between Marshall and his grantees whereby the surface of the land and one-fourth interest in the royalty was deeded back to Marshall, and the oil and gas leases were permitted to stand. This compromise settlement was presented to and approved by the county court. So far as the record discloses, this compromise settlement was in all good faith. The lessees proceeded to develop the land for oil and gas and Marshall received his one-fourth of the royalty interest up until he sold all of his interest in the land on October 13, 1916. It was not until July 12, 1915, that defendants became the owners of the leases. Their validity at that time was not being questioned by any one and was not thereafter questioned by Marshall until this action was commenced in January, 1918.
Defendant did not in any way participate in the procurement of the original deeds and contract from Marshall, nor did it participate in the compromise settlement had in 1913.
In Sapulpa Petroleum Co. v. McCray, 136 Okla. 269,277 P. 589, it is, said:
"The fact that a purchaser may err in judgment is not enough to impeach his good faith, but it exists when the purchase is made with an honest purpose, though the real title is not acquired."
Therein good faith is said to be the opposite of fraud and that its: nonexistence must be established by proof. Good faith, as the term is used in the rule of law that a trespasser on the land of another who takes property therefrom shall be liable only for actual damages if the property taken was taken in good faith, means that the taking is without culpable negligence or a willful disregard of the rights of others and in the honest and reasonable belief that it was rightful. The term has been employed in the authorities on this subject to characterize the acts of one who, while *Page 159
legally a wrongdoer, acted in the honest belief that his conduct was lawful. Whitney v. Huntington, 37 Minn. 197, 33. N.W. 561. It was there held that actual notice of the adverse claim of the true owner is not inconsistent with good faith on the part of the trespasser.
Under the record and the law we cannot say as a matter of law that defendant was not acting in good faith.
The rule is well established in this state that a person who in good faith enters into peaceable possession of land upon which he owns an oil and gas lease and produces oil and gas therefrom, and the lease is thereafter declared void, is entitled to the reasonable cost of producing the oil and gas in an action for an accounting by the landlord. Barnes v. Winona Oil Co., 83 Okla. 253, 200 P. 985; Minshall v. Berryhill,83 Okla. 100, 205 P. 932; Woodworth v. Franklin, 85 Okla. 27,204 P. 453.
It is further contended that if defendant be entitled to any development cost, then such offset should be limited to that proportionate capital investment in drilling six wells on the premises after the defendant came in possession thereof as the production during the period of time bears to the total production or life of the lease.
The contention cannot be sustained for two reasons:
First. The record shows that when defendant went into possession of the land 30 wells had been drilled thereon. Defendant drilled six wells thereon during the 15 months before plaintiff sold the land. Plaintiff's method of computing the production cost does not take into account the reasonable cost of the first 30 wells. The record does not show what they cost except the purchase price paid by defendant and this includes the leasehold interest. The cost of production per barrel could not be accurately ascertained without taking into consideration the reasonable cost of drilling all the wells if the total production of the land is to be taken as a basis.
Second. The record discloses that on October 13, 1916, Marshall sold all his interest in the land. The Flanagan Case decided that plaintiff's leases were invalid and that Flanagan became the owner of the wells when he purchased from Marshall. Marshall must have been the owner when he sold the land. Therefore, when he sold to Flanagan it must be presumed that he was sod the value of all the wells and had the full benefit of all the expenditures made by the defendant in developing the property for the purpose of producing oil as well as all expenditures for that purpose made by the persons from whom defendant purchased.
In the Flanagan Case the trial court allowed defendant go offset for development and operating expense. This court modified the judgment so as to allow actual cost of operating from October 13, 1916, to the date of the trial. Applying the rule there followed, the trial court was correct in allowing actual development and operating expenses and gross production tax paid and limiting same to the period between July 12, 1915, and October 13, 1916.
This expense being greater than the value of the oil produced, it follows that plaintiff was not entitled to recover anything, and there being nothing due plaintiff there was nothing upon which to compute interest, and his claim that he should have been allowed interest on the value of the oil taken if not allowed the highest market price of the oil, is without merit.
The judgment is affirmed.
LESTER, C. J., CLARK, V. C. J., and HEFNER, CULLISON, SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. McNEIILL, J., disqualified.
Note. — See under (1) 26 Rawle C. L. 1151; R. C. L. Perm. Supp. p. 5849. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3062918/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14685 ELEVENTH CIRCUIT
APRIL 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-60085-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PANCHRIAL LARUE JENKINS,
a.k.a. Pancho,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 16, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Panchrial Larue Jenkins appeals his sentence to 108 months of imprisonment
for conspiracy to possess with intent to distribute cocaine hydrochloride. 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Jenkins challenges his classification as a
career offender. We affirm.
The presentence investigation report identified Jenkins as a career offender.
See United States Sentencing Guideline § 4B1.1(a) (Nov. 2002). The report stated
that Jenkins had been convicted in March 1991 of burglary of a dwelling and in
May 2005 of selling or delivering cocaine. With a total offense level of 29 and a
criminal history of IV, the report provided a guideline range between 151 and 188
months of imprisonment.
Jenkins objected to his treatment as a career offender. Jenkins argued that
his conviction for burglary did not qualify as a predicate offense because, after his
conviction, he was denied counsel at a hearing to revoke his controlled release.
The record established that Jenkins had requested, but had been denied, counsel for
his revocation hearing. Jenkins admitted that he had violated the terms of his
controlled release and had been reincarcerated.
The district court sentenced Jenkins as a career offender. At Jenkins’s
request, the district court varied downward from the guideline range. The district
court sentenced Jenkins to 108 months of imprisonment and 3 years of supervised
release.
2
Jenkins argues that the district court could not rely on his burglary
conviction to classify him as a career offender, but we disagree. Jenkins failed to
present any evidence that his conviction for burglary was obtained in violation of
his right to counsel. Jenkins’s argument about the later revocation of his controlled
release is beside the point. Jenkins argues that is entitled to relief based on
Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764 (2002), but in Shelton, the
defendant was denied counsel for his underlying conviction. Moreover, a
probationer is not entitled to counsel at a revocation proceeding unless he presents
a “timely and colorable claim” that he is innocent of the violations charged or
counsel is needed to “develop or present” a defense. Gagnon v. Scarpelli, 411 U.S.
778, 791, 93 S. Ct. 1756, 1764 (1973). The district court did not err by sentencing
Jenkins as a career offender.
Jenkins’s conviction and sentence are AFFIRMED.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128491/ | 538 U.S. 946
SAFARI AVIATION, INC., DBA SAFARI HELICOPTER TOURSv.BLAKEY, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION.
No. 02-1162.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 300 F. 3d 1144. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3812039/ | Parties appear in the same order as in the trial court. Plaintiff sued defendant for rent of a room in his building in which defendant carried on a baby shop or stork nest, aiding his suit by attachment, on the grounds, first, that *Page 252
defendant had left the county of her residence to avoid service of summons; and second, that she so concealed herself that summons could not be served. In the justice court, judgment was for defendant on the debt and also dissolving the attachment. On appeal to the district court, judgment for the debt was for the plaintiff, but for defendant dissolving the attachment.
1. In the district court, plaintiff sought to amend his affidavit for attachment by setting up that the debt was for rent, that defendant had removed a part of her property from the shop on which the rent was due within 30 days. A landlord has no general statutory lien for rent, but under section 7366, Comp. St. 1921, when a tenant liable for rent intends to remove, or is removing, or has within 30 days removed his property from the leased premises, the landlord, by proper affidavit and undertaking, may have attachment with like effect as provided by law in other actions. The court permitted plaintiff to make such amendment, but refused to consider same and rendered judgment so as aforesaid. Under section 318, Comp. St. 1921, a pleading may be amended when such amendment does not change substantially the claim or defense. This section is applicable to amendment of attachment affidavit. Reister v. Land, 14 Okla. 34, 76 P. 156. There, it is held that an affidavit in an attachment which is not void but merely defective may be amended the same as any other pleading, process, or proceeding in the case. It is well settled that a court should permit only such amendments as do not change a cause of action and which give to plaintiff no rights which he did not have when the suit was instituted. Clearly, the plaintiff sought by such amendment to add another ground for attachment different from the two originally laid, and there was no error of the court in refusing to consider said amendment.
2. The court refused to permit plaintiff to show the character (more properly reputation) of defendant to be general indisposition to pay her debts; that she had many creditors whom she failed and refused to pay, some of whom had procured judgments and, on execution, no goods were found. Clearly, such testimony was incompetent to show that defendant had left the county to avoid the service of summons or concealed herself so that summons could not be served upon her. The general rule is that the character of a party to a civil action is not a proper subject of inquiry, subject to certain well-known exceptions. Neither was intent a material inquiry. The grounds of attachment laid are the third and fourth grounds of section 910, Civil Code of Procedure before a justice. Certain other grounds of attachment provided in said section make intent a material inquiry. A well-known exception to the rule excluding character testimony in civil cases is that relied upon by defendant:
"Where intent of the party charged is a material inquiry and the facts and circumstances shown in evidence leave the question of intent in doubt, the character of the party charged may be shown to aid in the determination of such question." Sovereign Camp of W. O. W. v. Welch, 16 Okla. 188, 83 P. 547; Breckenridge v. Drummond, 55 Okla. 351, 155 P. 555.
Since the intent, so as aforesaid, was not a material inquiry in the case at bar, such exception to the rule is not applicable. The court also refused plaintiff's offer to show by the sheriff's return in another case at about the same time that defendant was not found in the county. Such offer was incompetent, although evidence might have been adduced by the sheriff of such facts as he knew with respect to the absence of the defendant from the county and his inability to find her within the county at the time.
Plaintiff also complains of the refusal of the court to permit him to introduce a letter addressed by him to the defendant in another county, and which was returned bearing the notation "refused" — to support said grounds of attachment. No offer was made to show who made such notation on the returned letter, or that defendant in fact was in another county and refused to receive the letter. The burden was upon plaintiff to prove the grounds of attachment laid. The court sustained demurrer to his evidence in this behalf, and such ruling is reasonably supported by the evidence. None of the assignments of error being tenable, let the judgment be affirmed.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3045003/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2753
___________
Robert DeRue Mawhiney, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Warren Distribution, Inc., *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: June 27, 2008
Filed: July 10, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Robert Mawhiney appeals the district court’s1 adverse grant of summary
judgment in his action against his former employer, Warren Distribution, Inc. After
carefully reviewing the record and Mawhiney’s arguments on appeal, we find no basis
for reversal. See Hervey v. County of Koochiching, No. 06-3891, 2008 WL 2330900,
at *4 (8th Cir. June 9, 2008) (standard of review). We also conclude that the district
court properly denied as moot Mawhiney’s motions related to the pretrial conference.
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128501/ | 538 U.S. 947
STANFORDv.UNITED STATES.
No. 02-7650.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 944. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128503/ | 538 U.S. 947
FIERROv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-6336.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 294 F. 3d 674. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/997671/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7580
OLIVER J. HAIRSTON, JR.,
Petitioner - Appellant,
versus
RONALD ANGELONE, Director of Corrections;
ATTORNEY GENERAL OF THE COMMONWEALTH OF
VIRGINIA,
Respondents - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-98-384-R)
Submitted: January 7, 1999 Decided: January 20, 1999
Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Oliver J. Hairston, Jr., Appellant Pro Se. Jeffrey Scott Shapiro,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oliver J. Hairston, Jr., seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254
(West 1994 & Supp. 1998). We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. Accordingly,
we deny a certificate of appealability and dismiss the appeal on
the reasoning of the district court. See Hairston v. Angelone, No.
CA-98-384-R (W.D. Va. Sept. 30, 1998). We dispense with oral argu-
ment because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128517/ | 538 U.S. 948
FISHERv.YUKINS, WARDEN.
No. 02-8660.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
2
C. A. 6th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2797345/ | J-S24038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN P. SENATORE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN HAZAKIS, PAUL HAZAKIS AND :
GEORGE MIHOS,
:
Appellants : No. 3247 EDA 2014
Appeal from the Judgment entered on January 2, 2015
in the Court of Common Pleas of Delaware County,
Civil Division, No. 2009-8319
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 29, 2015
John Hazakis (“John”), Paul Hazakis (“Paul”) and George Mihos
(“Mihos”) (collectively, “Defendants”) appeal from the Judgment entered
against them and in favor of John P. Senatore (“Senatore”). We affirm.
In June 2009, Senatore filed a breach of contract action against
Defendants, seeking payment for services rendered in the construction and
renovation of a diner. According to Senatore’s Complaint, Defendants were
partners in a business called Hot Spot II, “a restaurant to be constructed by
private contractors retained by Defendants” in Springfield, Pennsylvania.
Complaint at ¶ 3. Senatore asserted that on or about February 26, 2006,
Defendants retained Senatore’s services as a project manager “of the
construction to be done at Hot Spot II.” Id. at ¶ 4. According to Senatore,
the parties agreed that he was to be paid $5,000 per month until the end of
J-S24038-15
construction, which was estimated to last four months. Id. at ¶ 5. Senatore
accepted the offer. Id. at ¶ 6. Construction began around 2006, but,
according to the Complaint, lasted longer than anticipated. Id. at ¶¶ 7-8.
Finally, in February 2007, Defendants stopped construction. Id. at ¶ 10.
Senatore filed the instant breach of contract action claiming that Defendants
failed to pay him $65,000, in accordance with their agreement. Id. at ¶¶
11-13.
Defendants filed an Answer, New Matter and Cross-Claim. Defendants
averred that initially, only John was involved in the project. Second
Amended Answer, New Matter and Counterclaim at ¶ 4. According to
Defendants, they were principals in a corporation known as Hot Spot Diner
II. Id. at ¶ 3. Defendants averred they filed the Articles of Incorporation on
February 23, 2006, and never acted in their individual capacities. Id.
Defendants further averred that Senatore agreed to construct and renovate
the diner for $80,000, and that Senatore agreed to a fee at the discretion of
John. Id. at ¶ 5. Defendants claimed that Senatore represented to John
that the project would take only three months. Id. Defendants filed
counter-claims against Senatore for breach of contract,
fraud/misrepresentation, and for counsel fees pursuant to 42 Pa.C.S.A.
§ 2503(9).
On December 8, 2011, the trial court entered judgment on the
pleadings in favor of Senatore. On appeal, this Court reversed. Senatore
-2-
J-S24038-15
v. Hazakis, 60 A.3d 861 (Pa. Super. 2012) (unpublished memorandum).
This Court concluded that there existed disputed issues of fact as to whether
Defendants acted in an individual or representative capacity when
contracting with Senatore. Id. (unpublished memorandum at 1).
On remand, the case proceeded to a jury trial. Ultimately, the jury
rendered its verdict, finding that (1) there was an agreement between
Senatore and Defendants; (2) the oral agreement was not between Senatore
and Defendants as principals in their corporate capacity; (3) the oral
agreement was between Senatore and Defendants acting in their individual
capacities; and (4) each of the Defendants breached their agreement with
Senatore. N.T., 4/30/14, at 96-97. The jury found each of the Defendants
100% liable for $39,600 in damages to Senatore. Id. at 98. Finally, the
jury found in favor of Senatore and against Defendants on Defendants’
counterclaims. Id. at 99-101. Defendants filed Post-Trial Motions, which
the trial court denied. Thereafter, Defendants filed a Notice of Appeal, and
on January 2, 2015, at the direction of this Court, final judgment was
entered on the jury’s verdict.
Defendants now present the following claims for our review:
1. Is it error for a judge to confirm a verdict that found
individuals jointly and severally liable for a performance
contract when there is no evidence of any contractual
relationship between the parties?
2. Is it error for [] a judge to confirm a verdict that assumed a
partnership when there is real evidence a partnership existed
-3-
J-S24038-15
or that there [sic] any conformity with the Uniform
Partnership Act of 1915, as amended?
3. Can a piercing of the corporate veil be successful where a
corporation is formed prior to the beginning of the contractual
work just because a negotiation with a contractor by a
principal was successfully done prior to the forming of the
corporation?
Brief for Appellants at 5.
Defendants first claim that there is no evidence to support the verdict
against Paul and Mihos, as they were not present at the time the contract
was formed. Id. at 18. Defendants point out evidence that Senatore
initially met with John and a former defendant, Vasilios Kyramararios
(“Kyramararios”). Id. Defendants argue that “[n]owhere in this record is
there any testimony that [Senatore] had any meeting with Paul [] and []
Mihos.” Id. Defendants assert there is no evidence supporting a finding of
individual liability against Paul and Mihos. Id. Thus, Defendant seek
judgment notwithstanding the verdict.
In reviewing a trial court’s decision granting or denying judgment
notwithstanding the verdict,
we must consider the evidence, together with all favorable
inferences drawn therefrom, in a light most favorable to the
verdict winner. … We will reverse a trial court’s grant or denial
of a judgment notwithstanding the verdict only when we find an
abuse of discretion or an error of law that controlled the
outcome of the case. Further, the standard of review for an
appellate court is the same as that for a trial court.
There are two bases upon which a judgment N.O.V. can be
entered: one, the movant is entitled to judgment as a matter of
law and/or two, the evidence is such that no two reasonable
-4-
J-S24038-15
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, the court
reviews the record and concludes that even with all factual
inferences decided adverse to the movant the law nonetheless
requires a verdict in his favor, whereas with the second, the
court reviews the evidentiary record and concludes that the
evidence was such that a verdict for the movant was beyond
peradventure.
Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa.
Super. 2002) (citation omitted). “Concerning any questions of law, our
scope of review is plenary. Concerning questions of credibility and weight
accorded evidence at trial, we will not substitute our judgment for that of the
finder of fact.” Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 886
(Pa. Super. 2002) (citation omitted).
To prove a breach of contract, a plaintiff must prove that a contract
existed, it was breached, and damages resulting from the breach. Liss &
Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 665 (Pa.
2009). In order for an enforceable agreement to exist,
there must be a “meeting of the minds,” whereby both parties
mutually assent to the same thing, as evidenced by an offer and
its acceptance. It is equally well established that an offer may
be accepted by conduct and what the parties do pursuant to the
offer is germane to show whether the offer is accepted. In cases
involving contracts wholly or partially composed of oral
communications, the precise content of which are not of record,
courts must look to the surrounding circumstances and course of
dealing between the parties in order to ascertain their intent.
We must, therefore, look to the parties’ course of conduct to
ascertain the presence of a contract.
Prieto Corp. v. Gambone Constr. Co., 100 A.3d 602, 609 (Pa. Super.
2014) (citation omitted).
-5-
J-S24038-15
The evidence, viewed in a light most favorable to Senatore, reflects
that Senatore first met John and Kyramararios at a diner owned by John.
N.T., 4/28/14, at 47, 48. At the diner, Kyramararios approached Senatore
about the construction of the Hot Spot II. Id. at 49. Senatore met with
John and Kyramararios about the Hot Spot II construction project in
December 2005. Id. at 51. At that meeting John and Kyramararios
explained that they wanted to open the Hot Spot II within four months. Id.
at 52. Senatore offered to provide equipment and “[a]ll my expertise on
how to save them money to be able to get the job done” for “$5,000 per
month for four months.” Id. at 53. Senatore also stated that he would wait
until the diner opened to get paid. Id. According to Senatore, he knew
three partners were involved with the project: Kyramararios, Paul and John.
Id. at 51. Senatore never was told that a corporation was involved, or that
he would be an employee of a corporation. Id. at 54, 101.
Senatore testified that John accepted his offer to perform the work, for
four months, for a total of $20,000. Id. at 55. When the work extended
beyond four months, John asked Senatore to continue with the project. Id.
at 73. Senatore began work in February 2006, and completed the work in
February 2007. Id. at 91. Finally, upon completion, Senatore was never
paid for his work. Id.
Kyramararios testified that when planning began for the Hot Spot II,
he, John and Paul were partners. Id. at 153. Kyramararios confirmed that
-6-
J-S24038-15
the partners decided to engage Senatore for the project. Id. at 154-55.
Kyramararios stated that Mihos joined the partnership because of cost
overruns. Id. Kyramararios testified that Senatore offered to perform the
work request for four months, for a total of $20,000. Id. at 157.
Kyramararios explained that Senatore provided tools and equipment that
saved the partnership rental fees. Id. at 166. Kyramararios confirmed that
the partners accepted Senatore’s offer. Id. at 157-58.
Paul testified that he was involved with the business prior to the
formation of a corporation. N.T., 4/29/14, at 114. Mihos testified that John
approached him for money after construction on the Hot Spot II began. Id.
at 116. Mihos expressly confirmed that he was a partner in the business.
Id. at 120.
The evidence, viewed in a light most favorable to Senatore,
established the existence of an agreement with all three Defendants, breach
of the agreement, and damages. We discern no abuse of discretion or error
by the trial court by its denial of judgment notwithstanding the verdict.
Accordingly, we cannot grant Defendants relief on this claim.
Defendants next claim that a partnership cannot be presumed without
evidence of its formation. Brief for Appellants at 19. Defendants assert that
they could only be found liable if there existed a legal partnership, formed
pursuant to Pennsylvania’s Uniform Partnership Act, 15 Pa.C.S.A. §§ 8301 et
-7-
J-S24038-15
seq. Brief for Appellant at 19-20. According to Defendants, Senatore failed
to establish the legal requirements of a partnership. Id. at 21, 22.
Initially, we observe that Kyramararios and Mihos expressly testified
regarding the existence of a partnership, as summarized above. Further,
Defendants did not challenge the sufficiency of the evidence establishing a
legal partnership in their Post-Trial Motions. Accordingly, that claim is
waived.1 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal).
Finally, Defendants claim that the trial court improperly permitted
Senatore to “pierce the corporate veil.” Brief for Appellants at 25.
Defendants argue that Senatore deliberately decided not to name the
corporation in his pleadings. Id. According to Defendants, they formed a
corporation “immediately prior to the effective lease for the facility—the
property for which [Senatore] was hired to supervise construction.” Id.
Nevertheless, Defendants assert that Senatore pierced the corporate veil,
without naming the corporation as a party. Id.
In their Post-Trial Motions, Defendants raised no claim related to the
legal existence of a corporation, or improper piercing of the corporate veil.
Accordingly, this claim is waived. See Pa.R.A.P. 302(a).
Judgment affirmed.
1
In their Post-Trial Motions, Defendants challenged the sufficiency of the
evidence establishing the existence of an oral contract. Post-Trial Motions,
¶¶ 1-2.
-8-
J-S24038-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2015
-9- | 01-03-2023 | 04-29-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2897538/ | NO. 07-08-0126-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 31, 2008
______________________________
IN RE CITY OF LUBBOCK, TEXAS, RELATOR
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Relator, the City of Lubbock, Texas, has filed a petition for writ of mandamus asking
that we direct the respondent trial court judge to vacate a “gag order” signed on December
7, 2007, in a case pending before the trial court. We will deny relator’s petition.
On December 7, 2007, respondent sua sponte issued an order barring the parties
from communicating with media outlets about the underlying case during its pendency. On
March 13, 2008, relator filed a motion in the trial court requesting vacation of the December
7 order. The motion contains an “arguments and authorities section” through which relator
presents the same constitutional argument it intends this Court to consider in support of
its petition for writ of mandamus. The trial court has scheduled an April 4, 2008, hearing
of relator’s motion to vacate. Relator filed its petition for writ of mandamus with this Court
on March 26 and accompanied it with a request for expedited hearing.
Mandamus is an extraordinary writ that will not issue to resolve disputes that may
be addressed by other remedies. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684
(Tex. 1989) (orig. proceeding). Mandamus is not available when the relator possesses an
adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). Our Supreme Court has noted that the term “adequate” in this context “has
no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus
proceedings to review the actions of lower courts.” In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 136 (Tex. 2004).
As noted, relator’s petition states that the trial court will hear relator’s March 13
motion for vacation of the court’s December 7 order on April 4. Although relator seeks an
expedited hearing of its petition in this Court, nothing in its petition suggests that any
circumstance facing the parties will change between now and April 4. Relator has not
asked for temporary relief. Tex. R. App. P. 52.10. As noted also, the record before us
indicates relator will present to the trial court the same contentions on the merits of its
motion it is presenting to us. Moreover, no response to relator’s petition has been filed.
Under the Rules of Appellate Procedure applicable to original proceedings, were we to find
mandamus relief appropriate, we would be unable in any event to grant relator the relief
it requests without requesting a response. Tex. R. App. P. 52.4, 52.8(b). And, were we
to request a response in this case, we would not expect it to be filed before April 4.
Given the “jurisprudential considerations” described, we find relator possesses an
adequate remedy at law by pursuing its motion set for hearing before the trial court on April
2
4. Prudential, 148 S.W.3d at 136. Accordingly, relator’s motion for oral argument, and
relator’s petition for writ of mandamus, are denied.
Per Curiam
3 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1028766/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6262
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEROME PIGFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:00-cr-00133-F-2)
Submitted: April 23, 2009 Decided: May 5, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jerome Pigford, Appellant Pro Se. Anne Margaret Hayes, Rudolf
A. Renfer, Jr., Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Pigford appeals the district court’s order
denying his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons
stated by the district court. United States v. Pigford, No.
7:00-cr-00133-F-2 (E.D.N.C. Feb. 5, 2009). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/997679/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7174
PARIS MITCHELL WHEDBEE,
Petitioner - Appellant,
versus
DIRECTOR, DEPARTMENT OF CORRECTIONS; E. M.
TUCKER, Chairman, Virginia Parole Board,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. T.S. Ellis, III, District Judge.
(CA-98-90-AM)
Submitted: January 7, 1999 Decided: January 19, 1999
Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Paris Mitchell Whedbee, Appellant Pro Se. Vaughan Christopher
Jones, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Paris Mitchell Whedbee seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254
(West 1994 & Supp. 1998). We have reviewed the record and the
district court’s order and find no reversible error. Accordingly,
we deny a certificate of appealability and dismiss the appeal on
the reasoning of the district court. See Whedbee v. Director,
Dep’t of Corrections, No. CA-98-90-AM (E.D. Va. July 2, 1998).* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
*
Although the district court’s judgment or order is marked as
“filed” on June 30, 1998, the district court’s records show that it
was entered on the docket sheet on July 2, 1998. Pursuant to
Rules 58 and 79(a) of the Federal Rules of Civil Procedure, it is
the date that the judgment or order was entered on the docket sheet
that we take as the effective date of the district court’s
decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir.
1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128550/ | 538 U.S. 951
ALMODOVARv.GREINER, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY.
No. 02-8828.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
2
C. A. 2d Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3099729/ | NUMBER 13-10-00507-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARILYN TINDOL, Appellant,
v.
GARY PHILLIP TINDOL, Appellees.
On appeal from the 36th District Court
of Live Oak County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion Per Curiam
This case is before the Court on appellant’s agreed motion to set aside the trial
court’s judgment without regard to the merits and remand to the trial court for rendition of
judgment. The parties have reached an agreement with regard to the disposition of the
matters currently on appeal. Pursuant to agreement, the parties request this Court to set
aside the trial court=s judgment without regards to the merits, and remand this case to the
trial court for rendition of a judgment in accordance with the agreement of the parties.
The joint motion to set aside and remand is GRANTED. Accordingly, we SET
ASIDE the trial court=s judgment without regard to the merits, and REMAND this case to
the trial court for rendition of judgment in accordance with the parties= agreement. See
TEX. R. APP. P. 42.1(a)(2)(B). Costs will be taxed against appellant. See TEX. R. APP. P.
42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant.").
PER CURIAM
Delivered and filed the
6th day of October, 2011.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3246353/ | The questions presented by the appeal in this case were considered on the appeal in the companion case of Birmingham Electric Co. v. City of Bessemer et al., 186 So. 569,1 this day decided, and decided adversely to the appellant.
On authority of that case the decree of the Circuit Court in this case is due to be affirmed. It is so ordered.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.
1 Ante, p. 240. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3246356/ | While I concur in the result of affirmance in this cause, yet I do not care to commit myself to all that is said by way of reasoning in the foregoing opinion.
The act in question is highly penal, and should be strictly construed, and, before giving it application to the concrete case, the *Page 233
judicial mind should be clearly convinced that the publication in question comes within its influence.
I am of the opinion the article here involved is in the nature of a political propaganda only, and not such an advertisement as to come within the prohibition of the act in question. I am not prepared to say, however, in order to bring an advertisement within said act, that it would be necessary that the name of the prohibited beverage should appear, or the place from whence it might be obtained. While I am rather inclined to a contrary view, there is no reason for reaching any definite conclusion thereon. I therefore concur in the result. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538781/ | 19-1173
Jamarr Fowler v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 4th day of June, two thousand twenty.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JAMARR FOWLER,
Plaintiff-Appellant,
v. 19-1173
CITY OF NEW YORK,
Defendant-Appellee,
NEW YORK CITY DEPARTMENT OF CORRECTION; NEW YORK CITY
CORRECTION OFFICER BACCORTTE, NEW YORK CITY CORRECTION
OFFICER SMITH, NEW YORK CITY CORRECTION OFFICER HARRIS, NEW
YORK CITY CORRECTION OFFICER PHILLIP, NEW YORK CITY
CORRECTION OFFICER PRESLEY, NEW YORK CITY CORRECTION OFFICER
DUNBAR, NEW YORK CITY CORRECTION OFFICER BLASSINGAME, IN
THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,
Defendants.*
_____________________________________
Appearing for Plaintiff-Appellant: MARLON G. KIRTON, Kirton Law
Firm, Hempstead, NY.
Appearing for Defendant-Appellee: SUSAN PAULSON, Assistant
Corporation Counsel (Richard P.
Dearing and Melanie T. West,
Assistant Corporation Counsels, on
the brief), for James E. Johnson,
Corporation Counsel of the City of
New York, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
* The Clerk of Court is respectfully directed to amend the caption to conform to the
above.
2
Plaintiff-Appellant Jamarr Fowler appeals from the district court’s
December 23, 2015 order dismissing Fowler’s claims against the individual
defendants 1 and the district court’s March 27, 2019 final judgment granting
summary judgment to Defendant-Appellee City of New York (the “City”).
In its December 23, 2015 order, the district court granted the defendants’
motion to dismiss all claims against the individual defendants for failure to serve
process pursuant to Federal Rule of Civil Procedure 4(m) and dismissed those
claims with prejudice. See Fed. R. Civ. P. 4(m). The court also granted the City’s
motion for judgment on the pleadings as to some claims against the City and all
claims against the New York City Department of Correction (the “DOC”). The
court dismissed without prejudice Fowler’s Monell claim against the City for
careless and reckless hiring and retaining, allowing him to amend his complaint
solely as to that claim. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 694 (1978).
Fowler timely filed an amended complaint against the City. After the close
of discovery, the City moved for summary judgment, which the district court
1 Fowler’s complaint named seven New York City Department of Correction officers
and captains in their individual and official capacities: Correction Officer (“C.O.”)
Baccortte, C.O. Smith, C.O. Harris, C.O. Phillip, Correction Captain (“Captain”) Presley,
Captain Dunbar, and Captain Blassingame (collectively, the “individual defendants”).
3
granted in a March 26, 2019 memorandum and order that closed the case. The
Clerk of Court entered a judgment for the City the following day. Fowler
appeals. 2
On appeal, Fowler challenges only the district court’s denial of his request
for an extension of time to comply with Rule 4(m) of the Federal Rules of Civil
Procedure and its dismissal of Fowler’s claims against the individual defendants
2 We note that Fowler’s notice of appeal states: “Notice is hereby given that JAMARR
FOWLER . . . hereby appeal[s] to the United States Court of Appeals for the Second
Circuit (from the final judgment) (from an order (describing it)) entered in this action on
the 27th day of March, 2019.” When filing a notice of appeal, best practice is to
“designate the judgment, order, or part thereof being appealed,” Fed. R. App. P.
3(c)(1)(B), and—this should go without saying—the appellant should modify the stock
language of Form 1 to comport with the circumstances of the appeal, see Fed. R. App. P.
Form 1. With this being said, and although Fowler’s notice of appeal leaves much to be
desired, because “we construe notices of appeal liberally,” Shrader v. CSX Transp., Inc., 70
F.3d 255, 256 (2d Cir. 1995), and “[a]n appeal must not be dismissed for informality of
form or title of the notice of appeal,” Fed. R. App. P. 3(c)(4), we construe Fowler’s notice
of appeal to include the December 23, 2015 order dismissing the individual defendants,
see SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 178 (2d Cir. 2000) (“[A] notice of
appeal from a final judgment brings up for review all reviewable rulings which produced
the judgment . . . .” (internal quotation marks and citations omitted)); see also Shannon v.
Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir. 1999) (“When a district court enters a final
judgment in a case, interlocutory orders rendered in the case typically merge with the
judgment for purposes of appellate review.” (citing Allied Air Freight, Inc. v. Pan Am.
World Airways, Inc., 393 F.2d 441, 444 (2d Cir.1968); John's Insulation, Inc. v. L. Addison &
Assocs., Inc., 156 F.3d 101, 105 (1st Cir.1998); 15A Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3905.1, at 250 (2d ed.1991)). We
encourage Fowler’s counsel, in future proceedings before this Court, to adhere more
closely to the “best practices” described above, so as to apprise the Court and any
opposing party of what exactly will be challenged on appeal, which, in turn, promotes
judicial efficiency.
4
for failure to timely serve process. As the district court noted, after filing his
complaint on April 18, 2013, Fowler failed to obtain signed and sealed summonses
from the Clerk of Court, and accordingly did not properly serve the individual
defendants by the date of the district court’s December 2015 order. Fowler does
not dispute that he failed to comply with Rule 4(m), nor does he challenge the
district court’s conclusion that he failed to present any good cause reason for this
failure. Fowler’s sole argument on appeal is that the district court abused its
discretion by denying his motion for an extension of time to serve the individual
defendants.
The version of Rule 4(m) in effect at the time Fowler commenced his action
required a plaintiff to serve a summons and complaint on the defendant within
120 days after filing the complaint. See Fed. R. Civ. P. 4(m) advisory committee’s
note to 1993 Amendments. If a defendant was not served within 120 days, the
court was required to “dismiss the action without prejudice against that defendant
or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). The
Rule requires the court to grant an extension for good cause, id., and district courts
may also “exercise their discretion to grant extensions under Rule 4(m) absent a
showing of good cause under certain circumstances.” Zapata v. City of New York,
5
502 F.3d 192, 193 (2d Cir. 2007). We review a district court’s Rule 4(m) dismissal
for failure to serve process for an abuse of discretion. Id. at 195.
The district court did not abuse its discretion. As Fowler admits, he did not
even attempt to serve the individual defendants until January 2014—well after the
deadline imposed by Rule 4(m). Because he “not only failed to show good cause
[for not complying with the rule] but advanced no colorable excuse whatsoever
for his neglect,” the district court was well within its discretion to deny his motion
for an extension of time and to dismiss his claims against the individual
defendants for failure to serve process. Id. at 193; see also Fed. R. Civ. P. 4(m);
Tolchin v. Cty. of Nassau, 768 F. App’x 60, 61–62 (2d Cir. 2019) (affirming the district
court’s denial of an extension and dismissal under Rule 4(m) where there was no
“colorable excuse for the failure to timely serve process,” even though the denial
of an extension resulted in plaintiff’s claims being barred by the statute of
limitations). 3
3 Although Rule 4(m) directs the district court to dismiss the action “without prejudice,”
we note that here the district court did not abuse its discretion by dismissing the claims
against the individual defendants with prejudice because, based on the expiration of the
statute of limitations, a dismissal without prejudice was effectively a dismissal with
prejudice.
6
We have considered Fowler’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
7 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1876501/ | 58 F. Supp. 717 (1944)
In re BUZAS.
No. 9490.
District Court, N. D. California, N. D.
October 19, 1944.
*718 Max H. Margolis, of San Francisco, Cal., and Brantley W. Dobbins, of Vallejo, Cal., for the bankrupt.
Percy King, Jr., of Napa, Cal., for respondent.
WELSH, District Judge.
Petitioner, George J. Buzas, brings this proceeding to restrain the collection of a judgment for $900 and costs recovered against him in the Superior Court of the State of California, in and for the County of Napa, by the respondent, Peter Cassenos, and for a turnover order with respect to moneys already collected by execution of said judgment. Respondent's state court action was pending against petitioner when he filed his petition in bankruptcy herein. Judgment by default was recovered in that action by the respondent after petitioner received his final discharge in bankruptcy.
Petitioner contends that the claim of the respondent, duly listed in the schedule of debts of the petitioner accompanying his bankruptcy petition, was discharged by the decree of final discharge of this court.
The respondent disputes the jurisdiction of this court, in this bankruptcy proceeding, to hear petitioner's application for relief from the enforcement of the judgment of the state court. If jurisdiction be present in this court to entertain the application, thenasserts the respondentthe petitioner must be denied the relief he seeks because his liability to respondent upon which the state court judgment is based is one for willful and malicious injury to property and, consequently, is not discharged in bankruptcy. Bankr.Act, § 17, sub. a (2), 11 U.S.C.A. § 35, sub. a (2).
I am satisfied with the jurisdiction of this court in bankruptcy to determine in this proceeding the effect of the decree of final discharge entered herein upon the liability of the bankrupt to respondent, existing when this proceeding was instituted, and which was listed among the unsecured debts of the bankrupt in his schedule of liabilities filed herein; and to grant or deny the relief sought against the enforcement of that liability, according to the conclusion here reached as to the effect on such liability of petitioner's final discharge in bankruptcy. Local Loan Co. v. Hunt, 292 U.S. 234, 54 S. Ct. 695, 78 L. Ed. 1230, 93 A.L.R. 195; Holmes v. Rowe, 9 Cir., 97 F.2d 537.
At the time of the filing of the petition in bankruptcy herein, respondent's suit was pending in the state court. The complaint in that action (Bankrupt's Exhibit No. 1) alleged that the petitioner "* * * forcibly and unlawfully entered in and upon said (respondent's) cultivated real property and drove a truck over the growing vines and crop of tomatoes injuring and damaging the same in the sum of $300.00."
The prayer of the complaint asked for treble damages and costs.
By the default judgment entered subsequent to the final discharge of petitioner, the state court found that all of the allegations of the complaint were true; that the forcible entry of petitioner upon the property of respondent was willful and malicious, and awarded judgment to respondent in treble the amount of actual damage sustained.
The petitioner complains that at no time prior to the entry of judgment against him in the state court was respondent's claim based on any asserted willful or malicious injury to property; that at all times up to the entry of that default judgment, which occurred after petitioner was granted his final discharge, respondent's claim against him was one for simple trespass upon and injury to property, unaccompanied by any willfulness or malice. With this contention, I cannot agree. The forcible entry upon the property of another and the driving of a truck over the latter's growing *719 vines and tomatoes and these were the charges of respondent in his complaint filed against the petitioner imputes to the doer of the acts a course of conduct pursued not as the result of mere inadvertence or carelessness. The doing of these acts imports a state of mind accompanying them which is both willful and malicious. In San Francisco, etc., Soc. v. Leonard, 17 Cal. App. 254, 119 P. 405, which was an action for damages for forcible entry and detainer of real property, the court stated at page 269 of 17 Cal.App., at page 411 of 119 P.:
"It was not necessary in our opinion for the plaintiff to plead more than the alleged forcible detainer to entitle it to prove facts which would have justified the court in awarding exemplary or punitive damages. The charge of forcible detainer of real property necessarily carries with it the implication that such detainer is from a bad motive, and what the precise nature of that motive is whether it be founded in malice or fraud or oppression of any sort may properly be shown under the general averment that the detainer is forcible."
Moreover, from the fact that treble damages were requested by respondent in his complaint filed against petitioner in the state court, it is evident that ever since suit was instituted by respondent on his claim and it must be remembered that this suit was pending when petitioner filed his application in bankruptcy that claim was predicated upon a willful and malicious wrong. For to the extent that damages are sought for a forcible entry upon property, in the California state court, in excess of the actual pecuniary loss thereby sustained, they are not based upon any claimed right to compensatory relief. Their objectives are punitive and exemplary and they are allowed only in cases of wrongful acts done deliberately and unconscionably. In speaking of the power of the state court to award treble damages in cases of forcible or unlawful entry or detainer upon real property, the court in the case of San Francisco, etc., Soc. v. Leonard, supra, stated at page 271 of 17 Cal.App., at page 412 of 119 P.:
"That the power thus specially given the court was intended to be exercised in those cases only where the evidence discloses that the defendant has committed the tortious act charged against him wantonly or by oppression or with malice, express or implied * * *, is a proposition which, in our opinion is rendered free from any kind of doubt, if not alone by the language of section 1174 of the Code of Civil Procedure, then most surely by that of section 735 of the same Code."
It is my conclusion that the allegation of respondent's complaint that petitioner forcibly entered upon his property and damaged his growing crops, and his request for the imposition of treble damages for such acts, is the equivalent of a charge of willful and malicious injury to respondent's property, a liability not subject to discharge in bankruptcy. The record of the proceedings in the state court do not support petitioner's contention that a dischargeable claim was converted by the judgment entered subsequent to petitioner's discharge in bankruptcy into an undischargeable debt for the purpose of avoiding the effect of the discharge. The judgment awarding respondent treble damages for a willful and malicious injury to property was fully supported by the allegations of the complaint upon which it was based; and it has not been rendered ineffective because of the decree of final discharge granted to petitioner.
It is therefore ordered, that the petition of George J. Buzas to restrain the enforcement and collection by execution of the judgment of the Superior Court of the State of California in and for the County of Napa in the action entitled Peter Cassenos, Plaintiff, v. George Buzas, Defendant, and numbered 8374, be and the same is denied; that the temporary restraining order heretofore issued by this court against the enforcement of such judgment be and the same is dissolved; and that petitioner's application for an order directing respondent to turn over to petitioner the amount heretofore collected by him on said judgment is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876580/ | 3 F. Supp. 800 (1933)
In re TOMLINSON & DYE, Inc., TULSA, OKL.
No. 1654.
District Court, N. D. Oklahoma.
June 19, 1933.
*801 Davidson & Williams, of Tulsa, Okl., for claimant, John H. Tomlinson.
Marie Ownby, of Tulsa, Okl., for trustee.
W. N. Banks, of Independence, Kan., for creditor, Bovaird Supply Co.
FRANKLIN E. KENNAMER, District Judge.
John H. Tomlinson filed his claim against the estate of Tomlinson & Dye, Inc., bankrupt, seeking $25,000 which he alleged was due him by the bankrupt corporation upon a promissory note and also the sum of $11,719.80 for salaries and money claimed to have been advanced to the bankrupt. The facts surrounding the bankrupt corporation, as well as the evidence presented in support and against the claim of John H. Tomlinson, are unimportant in deciding the question here presented. The facts contained in the record of importance for a consideration of the question here presented are: That the referee entered his order disallowing and denying the claim of John H. Tomlinson for the two sums above mentioned on the 17th day of March, 1933. After entering and filing the order denying the claim, and on the same day of the entry of the order, claimant filed a motion to vacate and set aside the order. Upon advice of then counsel for the claimant H. C. Fair not to consider the motion to vacate the order, the motion was not placed on the calendar or trial docket of the referee. Later, counsel for claimant filed an affidavit alleging that the note for $25,000, which was the basis for the claim, had been lost, and they filed an additional motion to vacate the referee's order disallowing the claim. The motion was set for hearing on May 4, 1933. The trustee, other creditors, and O. M. Dye, vice president of the bankrupt corporation, opposed the granting of the motions presented to the referee to set aside the order, and objected to the setting aside or reopening and re-examining the claim. On May 11, 1933, the motion to vacate and set aside the order disallowing the claim was overruled, and on May 16, 1933, the claimant filed a petition for review, which was granted by the referee. Motions have been filed by the trustee and creditors to dismiss the petition for review for the reason that the petition was not filed within ten days after the entry of the order denying the claim of claimant, as provided by the bankruptcy rules of the Northern District of Oklahoma.
The motion to vacate the order and reinstate the claim, filed on the day the claim was disallowed, seeks a reinstatement of the claim upon the ground that claimant was confused as to the hour of the hearing and that such confusion constituted unavoidable casualty which prevented the claimant from being present personally to support his claim. The motion to vacate cannot be considered a petition for review and clearly shows that it was not so intended, as it is directed to the referee rather than to the District Court.
The motion filed by claimant on April 20, 1933, to set aside the order dismissing the claim seeks a rehearing upon the claim for the single reason that the order denying the claim was entered erroneously and improvidently. This motion also asked leave to amend the claim to recite that the note upon which $25,000 of the claim was based had been lost or mislaid. This motion cannot be considered a petition for review to the District Court as it is not so intended. Another reason why the proceedings seeking the rehearings before the referee do not constitute review proceedings before the District Court, is because the procedure for a review has not been followed. The questions for determination are:
(1) Whether a referee in bankruptcy may review and reconsider a claim filed against a bankrupt estate which has previously been disallowed.
(2) Whether the time for filing a petition for review to the District Court begins to run from the date of the ruling upon the motion for a rehearing of a claim, which has been previously disallowed, or whether the time for filing a petition for review begins to run from the date on which the claim has been disallowed.
If a referee in bankruptcy does not have authority to review, rehear, and re-examine claims which have been disallowed, then the filing of such a motion for rehearing is useless and cannot enlarge the time for the filing of a petition for review to the District Court.
The United States Supreme Court has provided for the re-examination of any claim filed against a bankrupt estate and has made provision for the expunging or diminishing of the claim. The rule does not provide for a re-examination of a claim which has been disallowed, but apparently deals only with claims which have been allowed. General Order 21, par. 6 (11 USCA § 53), provides the following: "When the trustee or any creditor shall desire the re-examination of any claim filed against the bankrupt's estate, he may *802 apply by petition to the referee to whom the case is referred for an order for such re-examination, and thereupon the referee shall make an order fixing a time for hearing the petition, of which due notice shall be given by mail addressed to the creditor. At the time appointed the referee shall take the examination of the creditor, and of any witnesses that may be called by either party, and if it shall appear from such examination that the claim ought to be expunged or diminished, the referee may order accordingly."
There can be no doubt that claims which have been allowed may be reconsidered for cause and be reallowed or rejected in whole or in part, and that a petition for rehearing may be presented at any time prior to the closing of the estate. In re Hamilton Automobile Company et al. (C. C. A.) 209 F. 596; In re Collins (D. C.) 235 F. 937; In re Munsie (C. C. A.) 33 F.(2d) 79; Cary v. International Agricultural Corporation (D. C.) 243 F. 475; In re Caledonia Coal Co. (D. C.) 254 F. 742; In re Lewensohn (C. C. A.) 121 F. 538. However, the power of the referee to reconsider claims is limited to the expunging or diminishing of them. It does not extend to a reconsideration of claims which have been disallowed for the purpose of allowing or increasing them. The Circuit Court of Appeals for the First Circuit, in Fitch v. Richardson, 147 F. 197, 199, stated the following: "It is true that in bankruptcy proceedings questions of right are governed by the rules of chancery; but the practice of courts in bankruptcy with reference to topics like that before us is statutory. The nature of their powers with regard to matters to which this appeal relates is expressed by paragraph 6 of General Orders XXI, * * * limiting proceedings with reference to a reconsideration of claims to the mere matter of expunging or diminishing them."
This question has also received the attention of the District Court for the Northern District of California, and it was stated in Re Russell, 105 F. 501, that: "Where a creditor, whose claim has been disallowed by the referee, fails to file a petition for review with the referee, as required by General Order No. 27 [11 USCA § 53], the application for review will be dismissed."
Rules have been promulgated for the administration of cases in bankruptcy in this district, and rule numbered 29 provides that: "All orders of the referee shall be final unless annulled or modified on review taken as in other cases."
Rule 18 provides that: "When any person shall desire a review by the Judge of any order made by the referee, he shall file with the referee his petition therefor pursuant to General Order 27 of the Supreme Court, within ten days of the date of the order; otherwise the person affected by the order shall be deemed to acquiesce therein and to have waived the right to such review."
Provision is then made for the enlargement of the period within which a petition for review may be filed, not to exceed thirty days.
Rule 19 provides that the referee shall require the filing of a bond upon the filing of a petition for review. A bond was filed in the instant case with the petition for review, but as the motions for rehearings filed before the referee were never intended as petitions for review to the District Court, no bonds were filed with them.
There can be no question but that the order of the referee became final on March 17, 1933, when an order was entered disallowing the claim of John H. Tomlinson. In order to have presented a review to this court the petition for a review should have been filed in ten days after that date. The referee was without authority to rehear or to reallow the claim which had been disallowed, and the filing of a motion for that purpose was a useless thing. It could not enlarge the time for the filing of a petition for review.
Claimant relies upon the case of In re Greek Manufacturing Company (D. C.) 164 F. 211. The cited case establishes that under the General Orders in bankruptcy, a review of an order of a referee by the district judge can be had only on petition filed with the referee setting out the error complained of, and that such mode of review is exclusive. It further holds that a referee has no authority to review his own orders on exceptions thereto. The court expresses the reason for such a rule, in that to permit the referee to review or alter orders once made would be to enlarge General Order 27 (11 USCA § 53) so as to include what the Supreme Court did not provide, namely, that the referee, as well as the judge, could review such orders.
Another case relied upon by claimant is In re J. W. Renshaw's Sons (D. C.) 3 F.(2d) 75, wherein that court stated that the referee is without any authority or power to review or change his own order upon exceptions filed thereto. It further held that the decision of a referee may only be reviewed by petition presented within ten days, the period specified by rule, and that an order once entered *803 is not subject to review or alteration by the referee himself. The reason for such a rule is expressed by the court to be the protection of the best interests of creditors of the bankrupt, by requiring the speedy administration of the estate, and the right to file petitions for review cannot be exercised to unreasonably and unnecessarily delay the distribution of the assets of the bankrupt.
In re Huffman & Co. (C. C. A.) 15 F.(2d) 845, has been called to the attention of the court. The facts involved in that case are that the referee, on August 5, 1925, after a hearing, entered an order allowing the claim for the delivery of $3,000 in securities and money in the trustee's hands. On September 5, 1925, the trustee petitioned the referee to vacate the order and on October 9, 1925, the court entered an order setting aside and disallowing the claim. This case simply adheres to the rule that permits the expunging or diminishing of claims after they have been allowed.
The question here presented has had the attention of numerous courts, and it seems well established that the mode of review prescribed by General Order 27 for a review by the judge of orders or decisions of the referee is exclusive, and the party desiring a review must file his petition therefor in the manner prescribed, in default of which the application for review will be dismissed. In re Octave Mining Company (D. C. Ariz.) 212 F. 457; In re Home Discount Company (D. C. Ala.) 147 F. 538; In re Schiller (D. C. Va.) 96 F. 400; In re Marks (D. C. N. Y.) 171 F. 281; In re Walser (D. C. Mo.) 20 F.(2d) 136. Numerous authorities have been called to the attention of the court establishing the proposition that the referee is without authority to review or change his orders in bankruptcy on exceptions filed thereto. In re J. W. Renshaw's Sons (D. C.) 3 F.(2d) 75; In re Kruse (D. C.) 234 F. 470; In re David (C. C. A.) 33 F.(2d) 748; In re Isert (D. C.) 232 F. 484; In re Hull's Estate (C. C. A.) 240 F. 101; In re Marks (D. C.) 171 F. 281. Claimant insists that he did not seek a review before the referee upon exceptions filed to the order, and that these authorities are not controlling. It is contended that the filing of a motion for rehearing and re-examination of the claim warrants the referee in re-examining the claim although a referee is without authority to review such a claim upon exceptions filed thereto. In my opinion, this contention is unsound. There can be no doubt from the authorities, and from the General Order of the Supreme Court, that a referee is without authority to re-examine or reallow a claim which has been disallowed. It can make no difference whether the review is sought before the referee by a motion for rehearing, a petition for that purpose, or by exceptions. The proceeding for a review of an order of the referee is by a petition for review to the District Judge, and the authority of a referee cannot be enlarged by the filing of a motion for rehearing. It is not within the power of a litigant to confer authority upon a referee which he does not otherwise have, and the filing of a petition for a rehearing and re-examination of an order disallowing a claim by the referee is useless. In re Walser (D. C.) 20 F.(2d) 136, 137, was a case in which the trustee and complaining creditor filed their motion for vacation of certain orders of the referee. In passing upon the question, the court stated:
"If both or either of these proceedings should be construed to constitute petitions for review, they could not be maintained, because they are out of time. I know of no other method by which an order of a referee can be set aside, vacated, or annulled, save by a petition for review, timely filed, as provided by rule 27 of the General Rules in Bankruptcy.
"The courts and the text-books seem to agree that the method provided by rule 27, supra, is exclusive. 1 Collier on Bankruptcy, 926; In re F. M. & S. Q. Carlile (D. C.) 199 F. 612; In re Marks (D. C.) 171 F. 281; In re Clark Coal & Coke Co. (D. C.) 173 F. 658; Craddock-Terry Co. v. Kaufman (D. C.) 175 F. 303; In re Octave Mining Co. (D. C.) 212 F. 457." See, also, In re Faerstein (C. C. A.) 58 F.(2d) 942.
I have no hesitancy in concluding, from a consideration of the authorities, that a referee is without authority to re-examine or reallow a claim which has been disallowed. It is equally well established that the procedure for obtaining a review of an order of a referee disallowing a claim is limited to the filing of a petition for review to the district judge, and that the petition must be filed within the time fixed by rule, or if no rule has been adopted, within a reasonable time. Failure to file a petition for review within the period fixed by rule is fatal to the procedure, the reason therefor being in the interest of a speedy administration of the affairs of bankrupt estates.
In view of these observations, the motion of the trustee and creditors for the dismissal of the petition for review of claimant, John *804 H. Tomlinson, should be sustained, and the petition for review dismissed. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3445980/ | Reversing.
This is an appeal from a judgment of the Boyd circuit court refusing appellant's petition for review and to set aside an award entered by the Workmen's Compensation Board. In his application appellee claimed total permanent disability by reason of inhaling gas while working at a pickler in appellant's plant in Ashland, Kentucky. It is appellee's contention that this pickler gave off noxious gas which affected his lungs and caused him to develop tuberculosis.
The record, discloses appellee suffered no traumatic injury and that his disability is not shown to be the direct result of inhaling gas but that he is suffering from a germ disease. The evidence of the medical experts appellee introduced is to the effect that the irritation and inflammation of the tissue of appellee's lungs, and of the mucous membrane of his nose and mouth were caused by the inhalation of this gas and made the ground fertile for the turbercle-bacilli; but these doctors testified they could not say the inhalation of this gas caused appellee's tubercular condition.
This is a companion case to American Rolling Mill Company v. Ira Pack et al., decided March 10, 1939, reported in 278 Ky. 175, 128 S.W.2d 187. There is no *Page 235
material difference in the facts in the two cases and the issues are the same. In the Pack case the evidence of the medical experts was that inhalation of gas from the pickler fertilized the ground for the tubercle-bacilli. As the doctors testified they could not say the gas caused Pack's tubercular condition, we held there was no evidence of relevant consequence having the fitness to induce conviction connecting Pack's tubercular condition with the inhalation of the gas, therefore, Pack's tubercular condition was not compensable.
On the authority of the Pack case, this judgment is reversed with directions to the circuit court to enter a judgment sustaining appellant's petition for review and to set aside the award of the Board. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/997733/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6993
LAWRENCE TURNER,
Plaintiff - Appellant,
versus
C. E. THOMPSON, Warden, Staunton Correctional
Center; FAYE W. MCCAULEY, Operations Office,
Staunton Correctional Center; J. R. FLOYD,
Property Control Officer, Staunton Correction-
al Center,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-96-563-R)
Submitted: January 21, 1999 Decided: February 5, 1999
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence Turner, Appellant Pro Se. Martha Murphey Parrish, Assis-
tant Attorney General, Lance Bradford Leggitt, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lawrence Turner appeals the district court’s order denying
relief on his 42 U.S.C.A. § 1983 (West Supp. 1998) complaint. We
have reviewed the record and the district court’s opinion and find
no reversible error. We deny Turner’s motion to consolidate this
appeal with appeal number 98-6904, and affirm on the reasoning of
the district court. See Turner v. Thompson, No. CA-96-563-R (W.D.
Va. June 16, 1998). We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/997715/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7496
FRANK MIDDLETON, JR.,
Petitioner - Appellant,
versus
JOHN H. CARMICHAEL, JR., Warden; CHARLES M.
CONDON, Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Robert S. Carr, Magistrate Judge.
(CA-97-1711-2-8AJ)
Submitted: January 7, 1999 Decided: January 26, 1999
Before WIDENER, MURNAGHAN, and ERVIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Frank Middleton, Appellant Pro Se. William Ansel Collins, Jr.,
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Columbia, South Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Frank Middleton, Jr., appeals the magistrate judge’s order
denying relief on his 28 U.S.C. § 2241 (1994) petition.* We have
reviewed the record and the magistrate judge’s opinion and find no
reversible error. Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal on the reasoning of the magistrate
judge. See Middleton v. Carmichael, No. CA-97-1711-2-8AJ (D.S.C.
Sept. 28, 1998). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
*
The parties consented to jurisdiction of the magistrate
judge pursuant to 28 U.S.C. § 636(c)(1) (1994).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128570/ | 538 U.S. 952
RIGGINSv.FLORIDA.
No. 02-9078.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA FOR THE FIRST DISTRICT.
2
Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 827 So. 2d 983. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1877886/ | 731 F. Supp. 912 (1990)
WILLIAM J. (JACK) JONES INSURANCE TRUST, William J. (Jack) Jones and Helen G. Jones, Trustees, Plaintiff,
v.
The CITY OF FORT SMITH, ARKANSAS, a Municipal Corporation, Defendants.
Civ. No. 89-2085.
United States District Court, W.D. Arkansas, Fort Smith Division.
February 15, 1990.
*913 Michael K. Redd, Fort Smith, Ark., for plaintiff.
Wyman R. Wade, Jr., Fort Smith, Ark., for defendants.
MEMORANDUM OPINION
MORRIS SHEPPARD ARNOLD, District Judge.
Plaintiff applied to the city of Fort Smith ("City") for permission to build a convenience store to be associated with a gasoline station that plaintiff is already operating on Phoenix Avenue in the City. City officials responded that under the ordinances of the City they could give no such permission unless plaintiff granted the City an expanded right-of-way along the relevant property for street purposes. Plaintiff refused to make such a grant and brought this action under 42 U.S.C. § 1983 to enjoin the application of the relevant ordinances to these circumstances.
I.
It is unnecessary to grope about in the half-light of penumbras or to resort to the idea of implied rights to find and identify the constitutional right plaintiff seeks to assert here. That right, made applicable to the states and its subdivisions by the Fourteenth Amendment, is contained in the Fifth Amendment's plain provision that the government cannot take property except for a public use and then only after providing just compensation. It is conceded on all sides that the easement demanded here in return for a building permit is for a public use since it will be used to widen Phoenix Avenue at some future date. It therefore remains only to inquire whether the easement is property and whether its taking must be compensated.
II.
It would seem about as obvious as any legal proposition could be that an easement is an interest in property. It is true that the Supreme Court has drawn a distinction between reasonable governmental regulations or rules that merely affect land use, and thus value, on the one hand and ones that involve physical occupations on the other hand, holding that property is not taken in the former case but is in the latter.[1] Compare Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), with Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982). It is equally true that an easement, in the technical calculus of the common-law scheme of estates, has not been classified as a possessory interest. But a public right-of-way interferes in such a practical way with the fee owner's rights of use and enjoyment, that the argument that it does not give rise to a physical occupation would be virtually impossible to maintain. In fact, the Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), recently held directly that granting the public access to private property is a taking of property within the meaning of the Fourteenth Amendment.
*914 It is nevertheless true that the condition which the City wishes to impose on the granting of the building permit in this case would be constitutional if the "condition at issue ... is reasonably related to the public need or burden that [the plaintiff's new construction] creates or to which it contributes." Id. at 838, 107 S.Ct. at 3148. In this case, the court believes that the Nollan ruling requires the City to show that plaintiff's planned expansion of its business will create additional burdens on the present public right-of-way along Phoenix Avenue. In other words, Nollan teaches that the City may constitutionally "tax" plaintiff to recoup the costs of the negative externalities that its increased business activities cause: Without a showing of such externalities, the condition which the City attaches to building permits is simple extortion. Perhaps it is not necessary for the City to show an exact, mathematical, one-to-one correspondence between increased burden and tax, though it is plain that any clearly disproportionate tax would run afoul of the Fifth Amendment.[2]
III.
At a hearing held by the court to determine the relevant factual issue, plaintiff produced an expert civil engineer who testified that the additional burden on Phoenix Avenue created by plaintiff's planned expansion would be de minimis at most. One of the trustees of the plaintiff testified that he certainly hoped that the plaintiff's business would increase as a result of the expansion; but that increase, of course, would not have to translate into an increase of traffic on Phoenix Avenue. Indeed, there was testimony from which a reasonable fact-finder could conclude that the very purpose of convenience stores is to capture business from people who already regularly travel the routes on which such stores are situated, either to or from work or on other routinized business. It is true that increased traffic into and out of plaintiff's property will tend to increase congestion there, thus slowing traffic and perhaps contributing to the risk of accidents. But there was a showing that there were other convenience stores on Phoenix Avenue and near plaintiff's projected one, and so a reasonable fact-finder could conclude that whatever congestion or risk might be created by plaintiff's expansion would not be new but rather represents a redistribution of those costs from one locus on Phoenix Avenue to another.
For its part, the City produced credible testimony from its planners that convenience stores ordinarily had a certain and specific number of cars associated with them over a fixed period of time. The court does not doubt these data. But what the City could not show was what incremental traffic change, if any, could reasonably be expected from plaintiff's change in land use. This is, as the court has said, the critical inquiry.
IV.
Perhaps it would have been open to the City to show that its planned extension of Phoenix Avenue would increase the value of plaintiff's property in order to show that plaintiff's damages are not as great as it claims. The City, however, made no attempt to introduce any such evidence, and it is therefore unnecessary for the court to rule on that issue at this time.
The City having failed to carry its burden, an injunction will issue ordering the City to issue the requested permit unconditionally.
NOTES
[1] That this distinction may be economically unsound does not relieve this court of its duty to apply it. See Hall v. City of Santa Barbara, 833 F.2d 1270, 1275 n. 13 (9th Cir.1986), cert. denied, 485 U.S. 940, 108 S. Ct. 1120, 99 L. Ed. 2d 281 (1988).
[2] For a brilliantly sustained and intellectually unrelenting elaboration of the relationship between the Fifth Amendment and taxes, see R. Epstein, Takings (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3440880/ | Reversing. *Page 447
This is a motor vehicle collision case. The jury found a verdict in the amount of $2,765 for appellee, the operator of an automobile, against the owners and operator of a truck. Several grounds are urged for reversal.
Appellee was driving north on a graveled country road in Carroll County. Appellants' truck was following him. Appellee's home is on the right and his private garage is on the opposite side of the road. He made a left turn to go into the garage, holding out his hand before doing so. Appellants' truck struck his automobile about the left rear door as he made the turn.
Appellee testified that before making the turn he was in the center of the road and bearing to the left. The truck driver testified appellee slowed down in front of his house, "pulled over to the right and throwed his hand down out of the door." The former apparently assumed appellee was going to stop on the right, and attempted to pass.
Appellants' first contention is that they were entitled to a peremptory instruction on the theory that the accident could not have happened as appellee testified. If there ever was a case for the jury, this is it. The testimony of the truck driver shows he was aware appellee was changing his course in the road, and he admitted appellee put out his hand. Whether or not this signal was an adequate warning or was too late to be effective are pure questions of fact. Under the evidence, a jury would be justified in finding that either or both operators were negligent. Appellants were not entitled to a peremptory instruction.
What has been said above answers appellants' second contention that the verdict was not sustained by sufficient evidence.
A more serious question arises with respect to the deprival of appellants' right to peremptorily challenge a juror because of the falsity of his answer on voir dire examination. By affidavits accompanying an amended motion for a new trial, appellants alleged, and it is not denied, that during the preliminary examination of the jury panel appellants' attorney asked the following question: "Have any of you gentlemen ever been represented by Mr. Reed (appellee's attorney) in any legal matter?" *Page 448
The jury remained silent, thereby answering the question in the negative. It appears a member of the jury had been represented by appellee's attorney in a legal action filed in the Carroll Circuit Court. Appellants' attorney stated that he did not discover this fact until after the trial and his client was thereby deprived of his right to peremptorily challenge this juror.
We hesitate to reverse a case where actual prejudice is not shown. However, we believe this is the type of situation where the misconduct of the juror must be deemed to have been prejudicial.
The reasons therefor are clearly set out in the case of Drury v. Franke, 247 Ky. 758, 796, 57 S.W.2d 969, 88 A.L.R. 917. KRS 29.270 gives the parties in civil cases three peremptory challenges. This is a valuable and substantial right, and effectively assures not only the impartiality of the jury but the party's confidence in its fairness. In order that litigants may have an opportunity to exercise their judgment in striking jurors, it is essential that the latter answer truthfully those pertinent questions which may show prejudice on their part. Whether or not the false answer of a juror is made willfully or mistakenly is immaterial. Whether or not the verdict was the result of this juror's prejudice is likewise immaterial. The essence of the wrong committed is that, because of false information, the party is denied a fair opportunity to strike from the panel a juror whose truthful answer to a question may have shown bias.
In the Drury case cited above, a juror who had answered falsely that he had not been involved in an automobile collision did not even assent to the verdict complained of. Yet the special court deciding that case held it was not proper to speculate concerning the influence of the juror upon the verdict, the fact that false information was given and relied upon being a sufficient ground for a new trial. In the present case we think the relationship of attorney and client between appellee's counsel and the juror was a material fact; the false answer deprived appellants of pertinent information upon which their right of peremptory challenge depended; and the impairment of this right justifies the granting of a new trial. *Page 449
Since a new trial will be had, we think it proper to briefly discuss two items of evidence to which appellants objected. The first concerns the testimony of appellee's physician with respect to the condition of appellee's spine. Appellants contend the petition did not allege such injury. It alleged the collision did "mash, tear, bruise, injure, strike plaintiff's back —." Since the spine is definitely a part of the back, we believe the petition gave adequate notice of the injuries about which the physician testified, and the evidence was competent.
Appellants also objected to the testimony of a witness concerning the speed of the truck when it was observed by him over 300 yards from the scene of the accident. Regardless of whether or not this evidence was competent, under the facts of this case the speed of the truck that distance from the scene of the accident was irrelevant and immaterial. On another trial, such evidence should not be admitted.
For the reasons stated, the judgment is reversed for proceedings consistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1106919/ | 981 So.2d 1176 (2007)
Ex parte State of Alabama.
(In re Manuel Darwin NICKENS
v.
STATE of Alabama).
1061120.
Supreme Court of Alabama.
September 28, 2007.
Manuel Darwin Nickens, pro se.
Troy King, atty. gen., and Kevin C. Newsom and Nancy M. Kirby, deputy attys. gen., and Stephanie N. Morman and Beth Slate Poe, asst. attys. gen., for respondent.
Prior report: Ala.Crim.App., 981 So.2d 1165.
WOODALL, Justice.
The writ of certiorari is quashed.
In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).
WRIT QUASHED.
SEE, LYONS, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.
COBB, C.J., recuses herself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875381/ | 44 F. Supp. 704 (1942)
PALMER
v.
MOREN (WILEY et al., Third Party Defendants).
No. 486.
District Court, M. D. Pennsylvania.
April 23, 1942.
*705 *706 *707 Robert M. Bernstein, of Philadelphia, Pa., and Louis A. Fine, of Honesdale, Pa., for plaintiff.
John Memolo, of Scranton, Pa., for defendant.
Edward J. Kelly and W. J. Fitzgerald, both of Scranton, Pa., for third-party defendants.
JOHNSON, District Judge.
This action was brought by the plaintiff, a citizen of the State of New York, as trustee ad litem on behalf of himself, as father, and of Edith Palmer, as mother, of Kenneth Palmer, deceased, to recover damages for the death of Kenneth Palmer under the Act of 1855, P.L. 309, 12 P.S. § 1602, as amended, and the Pennsylvania Rules of Civil Procedure, No. 2202(b), 12 P.S.Appendix. The case was tried before the court and a jury and a verdict rendered for plaintiff in the sum of $4,553.53. The defendants have moved to dismiss the action because the court does not have jurisdiction; to set aside the verdict and enter judgment for the defendants; and, if these motions are refused, for a new trial.
On August 3, 1939, shortly after midnight, daylight saving time, plaintiff's decedent, Kenneth Palmer, a minor eighteen years of age, was riding as a passenger in the front seat of the automobile being operated by defendant, Lewis C. Moren, on route 611, about a mile and a half outside Stroudsburg in the direction of Delaware Water Gap. Defendant's car and a semitrailer belonging to Frederick E. Wiley, individually and trading as Wiley's Chester Auto Express, being operated by Alfred J. Hill, Jr., both of whom are third-party defendants in this action, collided, resulting in injuries to Kenneth Palmer from which he died a few minutes later. Plaintiff's decedent jumped from defendant's car immediately prior to the impact and was found lying in or near the center of the highway after the vehicles came to rest. By stipulation of counsel the agency of the driver of third-party defendant's, Wiley's, truck was admitted as well as that the death of Kenneth Palmer resulted from the accident.
Suit was first instituted by the plaintiff against Lewis C. Moren, the driver of the car in which the decedent was a passenger. Defendant then moved for leave to make Frederick E. Wiley, individually and trading as Wiley's Auto Express, the owner of the truck involved in the accident, and Alfred J. Hill, Jr., the driver, third-party defendants. This motion was granted. The jury rendered a verdict in which they found the defendant, Lewis C. Moren, and Frederick E. Wiley and Alfred J. Hill, Jr., third-party defendants, all guilty of negligence, awarding the sum of $4,553.53 to the plaintiff.
The motion to dismiss will first be considered. Under Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the objection to the jurisdiction of the subject matter is not waived by failure of a party to present it by *708 motion or answer before pleading further if an additional pleading is permitted. The plaintiff contends that defendant Moren is barred from suggesting the question of the court's jurisdiction because of an averment in paragraph one of the complaint that the "matter in controversy exceeds, exclusive of interest and costs, the sum of Three Thousand Dollars ($3,000.00)," which was admitted by defendant's answer although it was neither admitted nor denied by the answer of the third-party defendants. This contention is without merit. Upon this subject it was stated in Lawyers Trust Co. v. W. C. Maguire & Co., Inc., et al., D.C.Del. March 19, 1942, 2 F.R.D. 310. Neither the consent of the parties nor their admissions will confer jurisdiction upon a federal court where the facts of the case as revealed by the record deny the existence of such jurisdiction, and it is the duty of the court to investigate its jurisdiction where doubt exists as to whether or not the actual facts will support such jurisdiction. Citing Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001; Royalty Service Corporation v. City of Los Angeles et al., 9 Cir., 98 F.2d 551".
The measure of damages in an action for wrongful death by the parents of a deceased minor according to a long line of Pennsylvania cases is "the present worth of his earnings or the present worth of the probable value of his services until he reaches the age of 21, less what the parents would be required in the meantime to pay for his maintenance. [Citing] Peters v. Bessemer & Lake Erie R. R., 225 Pa. 307, 74 A. 61; Hoon v. Beaver Valley Traction Co., 204 Pa. 369, 54 A. 270; Hook v. Bell Telephone Co., 81 Pa.Super. 120; McCleary v. Pittsburg Rys. Co., 47 Pa.Super. 366, 374; Esher v. Mineral Railroad & Mining Co., 28 Pa.Super. 393." Gaydos et al. v. Domabyl, 301 Pa. 523, 533, 152 A. 549, 553. To this may be added the medical expenses arising from the injury and funeral expenses. Frantz v. Gower, 119 Pa.Super. 156, 158, 180 A. 716. The age, health and mental condition of the minor and its probable earnings as reflected by the occupation and circumstances in life of the parents also should be considered. Walker v. Perkins, 319 Pa. 469, 181 A. 511. The value of services and gifts rendered by the decedent may be taken into consideration in arriving at the pecuniary loss sustained by his death provided they have been bestowed with such frequency and regularity as would lead one to expect their continuance. Gaydos et al. v. Domabyl, supra; Schnatz v. Phila. & Reading R. R., 160 Pa. 602, 608, 28 A. 952.
The proof on the question of damages was that plaintiff's decedent had previously been earning $19.80 per week during which time he lived at home and turned over $15 per week to his parents who kept him. The father testified that it would cost about $7 per week for his maintenance. At the time of his death he was earning between $5 and $8 per week, in Moren's employ and his living, giving his parents $6 per week. The testimony indicated that plaintiff's decedent was an industrious and ambitious boy with no bad habits and that he intended to obtain a more remunerative position. It was stated that he was in the habit of making regular gifts of clothing and similar items to his mother and sister and that he helped around the house and garden when he was home every weekend. The funeral expenses amounted to $353.05. Defendants contend that on a mathematical basis, with 117 weeks to go before decedent's twenty-first birthday, the damages proved would total only slightly more than $1,100 and that, the jurisdictional amount of over $3,000, exclusive of interest and costs, was not involved. 28 U.S.C.A. § 41(1).
In actions ex delicto, where the damages recoverable are unliquidated, the amount in controversy is the sum alleged to be due in the plaintiff's pleading, Fernandina Shipbuilding & Dry Dock Co. v. Peters, D.C., 283 F. 621; Fowler v. Baker, D.C., 32 F. Supp. 783, unless it appears to be purely colorable for the purpose of conferring jurisdiction, O. J. Lewis Mercantile Co. v. Klepner, 2 Cir., 176 F. 343; Wilderman v. Roth, 3 Cir., 17 F.2d 486. Jurisdiction exists where the requisite amount is set out in the complaint unless it appears to a legal certainty "that the plaintiff could not have had any reasonable expectation that she could recover, exclusive of interest and costs, the jurisdictional amount." Wilderman v. Roth, D. C., 9 F.2d 637; New York Life Ins. Co. v. Johnson, 8 Cir., 255 F. 958. Under the pleadings and the evidence in this case the court is not satisfied that the amount of damages laid in the complaint is collusive or colorable for the purpose of giving this court jurisdiction. It does not appear to a legal certainty that the plaintiff did not reasonably expect to recover more than the amount required to give this court jurisdiction. In the case of Evans v. *709 Lehigh Coal & Navigation Co., D.C., 205 F. 637, where the averment of damages and proof at the trial almost coincided with that in this case, the court refused to grant a motion to dismiss. The motion to dismiss should be overruled in this case.
In support of their motions to set aside the verdict and judgment for the plaintiff entered thereon and to enter judgment for the defendants, both defendant, Moren, and third-party defendants, Wiley and Hill, contend that there was no evidence of any negligence on their respective parts which warranted the court's submitting the question of negligence to the jury. "On a motion for judgment n. o. v., the testimony should not only be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact, pertaining to the issues involved, which may reasonably be deduced from the evidence." Mountain v. American Window Glass Co., 263 Pa. 181, 106 A. 313; Moyer v. Pittsburgh, Mars & Butler Railway Co., 275 Pa. 363, 119 A. 469. Examining the proof with this rule in view, the facts appear as follows: Defendant Moren accompanied by the deceased, Kenneth Palmer, was driving in the direction of Delaware Water Gap on route 611 a short distance beyond Stroudsburg at a little past midnight, D.S.T. Seeing about 1200 feet ahead the lights of an approaching vehicle, which was a semi-trailer belonging to Wiley and operated by Hill, Moren drove to the right at a point, the beginning of a third lane of macadam beside the two-lane concrete highway near a fruit stand. After traversing this macadam for a distance of approximately 125 feet, the front and rear wheels of Moren's car on the right-hand side suddenly dropped into the unfinished portion of this third lane which had been left unguarded. At this point the third lane consisted of crushed stone 12 feet wide, a little more than 8 inches below the surface of the adjoining concrete pavement. Moren stated that he was traveling about 25 miles per hour when he dropped into the unfinished lane, that he immediately applied his brakes and shifted into low gear to get back on the concrete lane pointing his car angularly to the left, that he had gotten back on the concrete after driving for 35 or 40 feet over the crushed stone when he saw the approaching vehicle which he had previously noticed make a sudden turn towards him when it was about 35 or 40 feet away whereupon he brought his car to a standstill. Just before the collision Kenneth Palmer, who had been riding in the front seat with Moren, shouted to Moren that he should jump. Palmer opened the door on the right side and jumped from the car. The right side of the truck (semi-trailer) and the right side of Moren's car sideswiped each other as appeared from photographs of Moren's car which were offered revealing dents high on the two right fenders and over the door. When the vehicles came to rest Moren's car was some distance over the center line separating the two concrete lanes. Moren stated that his right wheels remained on the south-bound lane, the direction in which he had been driving, and that his car had been pushed over into the other lane by the force of the impact. The truck in which Hill was riding overturned on its right side at nearly a right angle with the highway with the tractor resting on the berm beside the unfinished third lane to the right of the south-bound lane and the remainder of the truck extending over the unfinished third lane and the south-bound concrete lane and projecting about two feet over into the north-bound lane. Traffic was routed over the north-bound lane until the truck was removed several hours later. Both Moren and Hill were unhurt. Palmer was found in a dazed or unconscious condition behind the car in which he had been riding, and between the car and the rear of the trailer, lying near the center of the two concrete lanes. A passing car took Palmer to the hospital but he died before he arrived at the hospital. Third-party defendant, Hill, the driver of Wiley's truck, testified that he was driving toward Stroudsburg at a speed of between 30 and 35 miles per hour carrying a 19,000 pound load of oil in addition to the weight of the equipment which was 10,000 pounds; that he observed Moren's car coming towards him about 1,000 feet away; that he put his lights on low beam shortly after which he noted that Moren's car had gotten off the edge of the road which was guarded by warning lights at the place where the truck was traveling. Hill stated that he continued to watch the car and that he slowed down to about 25 or 30 miles per hour when he was about 100 feet away because it appeared that Moren's car was out of control, and pulled over on the berm to his right, thinking he could pass safely. When the vehicles were about 30 feet apart, according to Hill, *710 Moren's car swerved directly across the road in front of him and he suddenly swung his equipment sharply to the left to avoid an impending collision but the vehicles struck each other at a point about 4 feet over the center line in the north-bound lane upon which Hill was driving. Hill drove this particular route about once a week. Neither Moren nor Hill saw Palmer from the moment he jumped from Moren's car immediately before the impact of the collision until he was found lying in the center of the highway after the accident; there was no testimony showing which vehicle, if any, struck him.
From the evidence it appears that deceased was a guest of Moren's on a pleasure trip. Under these circumstances the driver owed his passenger the duty to exercise ordinary or reasonable care to avoid injuring him by the operation of his automobile. It is not necessary that his conduct be shown to be gross negligence to make him liable for injuries resulting from his neglect. Cody v. Venzie, 263 Pa. 541, 107 A. 383; Ferrell v. Solski, 278 Pa. 565, 567, 123 A. 493; Ravis v. Shehulskie, 339 Pa. 161, 14 A.2d 70. It cannot be held as a matter of law that Moren exercised ordinary care when he drove into the unfinished third lane to his right or when he endeavored to get back on the higher concrete pavement in the face of an oncoming vehicle. This question was one of fact for the jury, and the request for a directed verdict was properly refused.
One of the reasons assigned by the third-party defendants, Wiley and Hill, for setting aside the verdict and judgment and entering judgment for them is that there is no evidence of any negligence on their part which warranted submitting the question to the jury. By stipulation of counsel prior to the trial it was admitted that Hill was acting on Wiley's behalf at the time of the collision; therefore, under the familiar principle of respondent superior the negligence of the driver acting in the scope of his employment is the negligence of his employer and for injuries resulting therefrom the latter is liable. Wallace v. Keystone Automobile Co., 239 Pa. 110, 86 A. 699. There was an irreconcilable difference between the stories of the driver of the car and the driver of the truck, Moren testifying that the collision occurred on his side of the highway which would be Hill's left side and Hill testifying that Moren was on Hill's north-bound lane and that he had to turn to the left to avoid striking Moren's car. While it would not be negligence per se for a vehicle to be driven on the left side of the road, Boose v. Walker, 86 Pa.Super. 218, 220; Post v. Richardson, 273 Pa. 56, 116 A. 531, it is the duty of drivers of cars approaching from opposite directions to keep to the right. Act of 1929 P.L. 905, sec. 1004, 75 P.S. § 521. The conflicting evidence on the question whether Hill was properly keeping to the right of the center of the highway was sufficient, alone, to make the issue of negligence one for the jury. Amey v. Erb, 296 Pa. 561, 564, 146 A. 141. Even if Hill's story that he was driving upon his right side of the road at the time of the collision were accepted as true, that would not have warranted the direction of a verdict in favor of the third-party defendants. "The mere fact that defendant was on the right side of the road does not determine the presence or absence of negligence. There is no law that allows one who is on that side of the road to run down anything in his path." Hoover v. Reichard, 63 Pa.Super. 517. Even if it were conceded that Moren's car suddenly veered across the road in front of Hill's truck thereby creating a sudden emergency which would have relieved him from responsibility for an honest mistake of judgment in trying to avert a collision, Amey v. Erb, supra, still the duty to exercise the reasonable care of a prudent man under the same circumstances would exist and whether he acted as would a reasonably prudent man under like conditions was a question for the jury. Huddy: Encyclopedia of Automobile Law, Vol. 3-4, page 56 (Ninth Edition). There was also evidence from which the jury could have found that the driver of the truck did not exercise reasonable care considering all the surrounding circumstances with regard to the speed and control of his vehicle after he had perceived that Moren's car was in some kind of difficulty. A driver is entitled to assume that other drivers will observe the rules of the road and take proper precautions, Christ v. Hill Metal & Roofing Co., 314 Pa. 375, 171 A. 607, only if there is nothing which in the exercise of reasonable care would put him on notice that such a course would not be pursued. Hill, having observed Moren's lights bobbing when he commenced to travel the unfinished third lane, was bound to operate his truck at such speed and under such control as would permit him to avoid doing injury in any situation *711 that was reasonably likely to arise. Huddy: Encyclopedia of Automobile Law, Vol. 3-4, page 87. Whether Hill exercised reasonable care under all the circumstances, as it was his duty to do, was properly left for the jury's determination. There being conflicting evidence as to which driver was responsible for the creation of the sudden emergency, it could not be said, as a matter of law, that Hill was not negligent. Casey v. Siciliano, 310 Pa. 238, 165 A. 1.
Another reason advanced by all defendants for setting aside the verdict and entering judgment in their favor is that the plaintiff's proof showed that decedent was guilty of contributory negligence in jumping from Moren's car immediately before the collision. Moren testified that at the time Palmer jumped from the car it appeared to him that they were in imminent danger, and the evidence also showed that the point of contact between the two vehicles was the right side of each, the side upon which Palmer was riding in the front seat. The negligence of Moren could not be imputed to his passenger, Palmer, so as to preclude plaintiff from recovery, it not appearing that Palmer concurred in the driver's negligence. To Use of Kuhns v. Conestoga Traction Co., 290 Pa. 303, 309, 138 A. 838; Alio v. Pennsylvania R. R. Co., 312 Pa. 453, 167 A. 326, 90 A.L.R. 980. Whether Palmer's jumping from the car in which he was riding when a collision with a large semi-trailer on his side appeared imminent constituted negligence under the circumstances was a question for the jury to decide after being instructed that one who was placed in sudden apparent peril by the negligence of one or both of the drivers involved in the accident could not be charged with failure to exercise reasonable caution if the course which he chose in the emergency proved after the event to have been a mistaken one. Wilson v. Consol. Dressed Beef Co., 295 Pa. 168, 145 A. 81; To Use of Kuhns v. Conestoga Traction Co., supra. "On the other hand, if he leaves a moving machine and thereby receives an injury, it may be proved subsequently that he would have escaped injury had he remained with the machine, but he is not necessarily charged with negligence because he took the wrong course in the emergency." Huddy: Encyclopedia of Automobile Law, Vol. 5-6, page 268-269 (Ninth Ed.).
It has been pointed out that there is no evidence as to which vehicle, if any, inflicted the injuries from which Kenneth Palmer died. In the view we take of this case the absence of proof upon this subject is unimportant. It clearly appeared from the evidence that plaintiff's decedent sustained his injuries in his effort to escape from the perilous situation which had arisen. There was evidence from which the jury was warranted in finding that the negligent conduct of both Moren and Hill operated simultaneously to produce the threatened danger to decedent which he was attempting to avoid at the time he suffered the injuries which caused his death. It is well settled that for any injuries sustained through the normal efforts of a person to avoid harm threatened by the negligent conduct of others, those, whose negligent acts have concurred in causing the threatened harm, are liable. Ritchey v. Cassone, 296 Pa. 249, 145 A. 822; Lehner v. Pittsburg Railways Co., 223 Pa. 208, 72 A. 525, 132 Am. St. Rep. 729, 16 Ann.Cas. 83; Restatement of the Law of Torts, 445. The jurors in the case might have found and did find that what Palmer did was what they would have done under the circumstances, and, therefore, the consequences to him in doing what he did as the result of the defendants' negligence are chargeable to them as the direct cause of the injuries. Reimard v. Bloomsburg & Sullivan R. R. Co., 228 Pa. 384, 388, 77 A. 560. After carefully considering all the proof we cannot say that there was not sufficient evidence to sustain the verdict or that it was against the weight of the evidence.
Both defendant, Moren, and third-party defendants, Wiley and Hill, have assigned reasons in support of motions for a new trial, none of which are of sufficient merit to warrant discussion except that the verdict and damages are excessive. A new trial will not be granted on the ground that the verdict is excessive simply because the jury has awarded greater damages than the judge himself would have done. The amount of the verdict must be such that it shocks the conscience of the court since ordinarily the determination of damages is the province of the jury. Filer v. Filer, 301 Pa. 461, 152 A. 567. "In all cases where the damages, in the opinion of the court are too large, an order may be made for a new *712 trial, unless the plaintiff stipulates to remit a portion of the verdict," 6 Standard Pennsylvania Practice 360; Kennon v. Gilmer, 131 U.S. 22, 9 S. Ct. 696, 33 L. Ed. 110; Becker Bros. v. United States, 2 Cir., 7 F.2d 3. Taking into consideration the actual earnings of plaintiff's decedent, the court is of the opinion that the verdict of $4,553.53 rendered by the jury in this case is so excessive that it would be an abuse of discretion to allow it to stand. An award of $3,200 would, in our opinion, amply compensate plaintiff for the loss of his son's earnings and the other damages sustained as a result of his death.
Now, this 23rd day of April, 1942, it is ordered that if the plaintiff, Willis Palmer, trustee ad litem, shall file in the office of the clerk of this court within the next ten days a stipulation or remittitur agreeing to the reduction of so much of the verdict in this case as is in excess of $3,200, the motions of defendant, Lewis C. Moren, and of third-party defendants, Frederick E. Wiley, individually and trading as Wiley's Chester Auto Express, and Alfred J. Hill, Jr., for a new trial shall be and they, hereby, are denied, and the verdict rendered against the defendant and the third-party defendants shall be reduced to $3,200 and judgment entered thereon for that amount: but if the plaintiff shall not so stipulate, within ten days, the motions of defendant and third-party defendants for a new trial will be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2897544/ | NO. 07-07-0126-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 28, 2008
______________________________
IN THE INTEREST OF M.D., A CHILD
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 71,326-D; HONORABLE DAVID L. GLEASON, JUDGE
(footnote: 1)
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellants, Natasha and Timothy,
(footnote: 2) appeal the trial court’s order terminating their parental rights to their son, M.D. By her brief, Natasha presents four issues challenging the termination. By issues one and two, she maintains the evidence is insufficient to support the trial court’s findings that she knowingly placed or knowingly allowed her child to remain in conditions which endangered his physical or emotional well being and that she engaged in conduct that endangered her child or placed her child with persons whom she knew endangered her child. By her third issue, she contends that termination was not in the best interest of her child, and by her final issue presents a public policy argument that termination is improper when a parent contacts the Texas Department of Family and Protective Services for help.
By separate brief, Timothy raises four issues to contest the termination. By issues one and two, he challenges § 263.405(b) and (i) of the Texas Family Code as being violative of his federal and state due process rights by requiring a statement of points to be filed within fifteen days after the trial court signs the termination order.
(footnote: 3) By issues three and four, Timothy challenges the sufficiency of the evidence to support the trial court’s findings that he knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical or emotional well being and that he engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered his physical and emotional well being. We affirm.
Relying on
In re T.C.
, 200 S.W.3d 788 (Tex.App.–Fort Worth ), and
In re R.J.S.
, 219 S.W.3d 623 (Tex.App.–Dallas 2007, pet. denied), the Department contends that § 263.405(b) and (i) of the Texas Family Code precludes review of Natasha and Timothy’s issues for failing to timely file a statement of points. We agree.
A party intending to appeal a final order rendered under subchapter E of chapter 263 of the Texas Family Code must file with the trial court, no later than fifteen days after the final order is signed, a statement of points on which the party intends to appeal. § 263.405(b). The statement of points may be filed separately or it may be combined with
a motion for new trial.
Id.
An appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points. § 236.405(i).
The order being appealed in this case is a final order rendered under subchapter E of chapter 263 of the Texas Family Code; therefore, Natasha and Timothy were required to file a statement of points.
The failure to timely file a statement of points does not deprive this Court of jurisdiction over the appeal; however, it is a procedural prerequisite to the appellate court’s authority to consider any issue presented.
See
§ 263.405(i).
See also
In re R.C.
, 243
S.W.3d 674, 675-76 (Tex.App.–Amarillo April 25, 2007, no pet.).
Procedural Background
The Department filed its First Amended Petition seeking, among other relief, termination of Natasha and Timothy’s parental rights to their child. Following a hearing on March 19, 2007, the trial court advised the parents of its intention to terminate their parental rights. On March 23, 2007, and March 26, 2007, the trial court appointed counsel on appeal for Natasha and Timothy, respectively. The trial court signed the termination order on April 4, 2007, making the statement of points due no later than April 19, 2007.
No motion for new trial was filed by either parent. Natasha did file a statement of points on June 28, 2007, well after the fifteen day deadline.
§ 263.405(b) and (i)
While several of our sister courts have questioned the practical application and constitutional validity of this statute and have recommended that the Legislature reconsider the statute in light of the potentially harsh effect of its application,
(footnote: 4) every intermediate appellate court in this State has agreed that the statute, as written, prohibits appellate courts from considering points not properly preserved by the timely filing of a statement of points.
See
In re J.O.A., ___
S.W.3d___, No. 07-07-0042-CV, 2008 WL 495324 at *4, fn. 8 (Tex.App.–Amarillo Feb. 25, 2008, no pet. h.).
Because Natasha and Timothy’s
issues relating to the sufficiency of the evidence, best interest of the child, and public policy argument were not presented to the trial court in a timely filed statement of points as otherwise required by § 263.405(b) and (i), they were not preserved; therefore, we will proceed to address their due process argument. They contend the procedural requirement that a statement of points be filed within fifteen days after the trial court signed the termination order violated their federal and state due process rights. We disagree.
Due Process Violation
If possible, courts must interpret a statute in a manner that renders it constitutional.
FM Properties. Operating Co. v. City of Austin
, 22 S.W.3d 868, 873 (Tex. 2000). A party challenging the constitutionality of a statute must establish that the statute always operates unconstitutionally.
Wilson v. Andrews
, 10 S.W.3d 663, 670 (Tex. 1999). In reviewing a facial challenge to a statute’s constitutionality, we consider the statute as written, rather than as it operates in practice.
Barshop v. Medina County Underground Water Conservation Dist.
, 925 S.W.2d 618, 626-27 (Tex. 1996).
Natasha’s appointed appellate counsel points out that he filed a statement of points within fifteen days after receiving the reporter’s record, which was necessary to fully develop a statement of points. He argues that the fifteen day period in which to file the statement of points from the date the trial court’s order was signed violated Natasha’s due process rights by “barring her from access to the court system.” Counsel ignores the fact that he was appointed twenty-seven days prior to the statement of points being due, as well as the fact that he also served as appointed trial counsel. Regardless of when he received the reporter’s record, he should have been able to fully develop a timely statement of points. The statute, as written, does not provide for filing a statement of points within fifteen days of receiving the reporter’s record. Such an interpretation would defeat the expediency intended by the Legislature in enacting the statute.
See
In re R.J.S.
, 219 S.W.3d at 626
.
Timothy’s appointed appellate counsel
(footnote: 5) maintains that the arbitrary designation of a date certain to file specific issues for appeal is unnecessary when the Legislature has granted the right to appeal. He argues that the statute promotes a system of unreasonably restricting an indigent parent’s right to appeal a termination order thereby violating a parent’s due process rights. Section 263.405(i) operates equally to indigent as well as non-indigent parents. Therefore, it does not, in and of itself, operate to restrict an indigent parent’s right to appeal a termination order.
Additionally, counsel urges that Timothy’s notice of appeal “evidences his intent to appeal the decision of the trial court.” Once again, as written, § 263.405 does not provide that a notice of appeal (which provides no notice to the trial court) expressing dissatisfaction with the trial court’s order is sufficient to satisfy the requirement for a timely filed statement of points.
Under the facts of this case, a procedural requirement, i.e., a specific number of days within which to file a document, in and of itself, did not violate Natasha or Timothy’s due process rights.
Timothy’s first and second issues and Natasha’s two reply issues alleging due process violations are overruled.
Conclusion
Having rejected Natasha and Timothy’s due process arguments, we conclude that neither Natasha nor Timothy have preserved any of their arguments based on sufficiency of the evidence, best interest of the child, or public policy for appellate review. Natasha’s four issues raised in her original brief are overruled, and Timothy’s third and fourth issues are overruled.
Consequently, the trial court’s order terminating Natasha and Timothy’s parental rights to their child, M.D., is affirmed.
Patrick A. Pirtle
Justice
FOOTNOTES
1:Sitting by assignment for the Honorable Don Emerson.
2:To protect the parents’ and child’s privacy, we refer to the parents by their first names and the child by his initials.
See
Tex. Fam. Code Ann. § 109.002(d) (Vernon 2002).
3:Natasha filed a reply brief also contending that § 263.405(b) and (i) violates her federal and state due process rights by requiring a statement of points to be filed within fifteen days after the order is signed. Technically, Rule 38.3 of the Texas Rules of Appellate Procedure does not allow an appellant to raise a new issue in a reply brief that was not raised in the original brief.
See Gray v. Woodville Health Care Center
, 225 S.W.3d 613, 620 (Tex.App.–El Paso 2006, pet. denied);
Howell v. Texas Workers’ Compensation Com’n
, 143 S.W.3d 416, 439 (Tex.App.–Austin 2004, 2 pets. denied). However, because Timothy challenged the statute in his original brief, in the interest
of justice, we will also review Natasha’s challenge.
4:In re R.M.R.
,
218 S.W.3d 863, 864 (Tex.App.–Corpus Christi 2007, no pet.);
Pool v. Tex. Dep’t. of Family & Protective Services
,
227 S.W.3d 212, 215 (Tex.App.–Houston [
1st Dist.] 2007, no pet.);
In re D.A.R
.,
201 S.W.3d 229, 231 (Tex.App.–Fort Worth 2006, no pet.);
In re E.A.R.
,
201 S.W.3d 813, 814 (Tex.App.–Waco 2006, no pet.) (Vance, J., concurring).
5:The clerk’s record reflects that Timothy’s appointed appellate counsel also served as his trial counsel. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/997742/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-4882
In Re: ALVIN JERONES PURDIE, JR.,
Petitioner.
On Petition for Writ of Mandamus. (CR-94-46)
Submitted: January 21, 1999 Decided: February 5, 1999
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Alvin Jerones Purdie, Jr., Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alvin Jerones Purdie, Jr., filed this petition for a writ of
mandamus seeking reversal of his drug and firearm convictions based
on a delay in the appellate process stemming from his inability to
obtain transcripts of his jury trial. To obtain mandamus relief,
a petitioner bears the heavy burden of showing that he has no other
adequate avenues of relief and that his right to the relief sought
is clear and indisputable. Mallard v. United States Dist. Court,
490 U.S. 296, 308-09 (1989). Purdie alleges that his inability to
obtain adequate trial transcripts has precluded him from perfecting
a direct appeal of his conviction in violation of his due process
rights. Despite the extensive delays that have accompanied his
appeal, a briefing order will be set in the near future that will
provide Purdie the opportunity to present his appeal to this court.
Through the appellate process Purdie may present his concerns. See
Fed. R. App. P. 10(c); United States v. Wilson, 16 F.3d 1027, 1031
(9th Cir. 1994). Accordingly, although we grant Purdie’s motion to
proceed in forma pauperis, we deny the mandamus petition. We dis-
pense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4000291/ | ON REHEARING. [En Banc. December 27, 1946.]
Upon a rehearing En Banc, a majority of the court adhere to the Departmental opinion heretofore filed herein.
The unconstitutionality of Laws of 1941, chapter 188, p. 531 (Rem. Supp. 1941, § 814-1 [P.P.C. § 56-1] et seq.), is suggested by amici curiae on whose petition we granted a rehearing of the cause. The constitutionality of the cited statute was not challenged in the hearing to the Department; respondents did not file a brief or appear in this court. The question of the constitutionality of the statute is reserved for future determination. *Page 306 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1875250/ | 176 B.R. 255 (1994)
David R. LEVINSON, Appellant,
v.
LHI HOLDING, INC., f/k/a Treasure Isle, Inc., f/k/a B & R Foods Holding, Inc., Appellee.
In re LHI HOLDING, INC., f/k/a Treasure Isle, Inc., f/k/a B & R Foods Holding, Inc., Debtor.
LHI HOLDING, INC., Plaintiff,
v.
David R. LEVINSON, Defendant.
Nos. 92-1086-CIV-T-24B, 91-11952-8B1. Adv. No. 91-819.
United States District Court, M.D. Florida, Tampa Division.
November 29, 1994.
*256 Robert V. Williams, Williams, Reed, Weinstein, Schifino & Mangione, P.A., Tampa, FL, for appellant David R. Levinson.
Robert Baltzell Glenn, Glenn, Rasmussen, Fogarty, Merryday & Russo, Tampa, FL, for appellee LHI Holding, Inc.
ORDER
BUCKLEW, District Judge.
This cause comes before this Court on appeal from a ruling of Bankruptcy Judge Thomas E. Baynes, Jr. of the Middle District of Florida. Appellant/Creditor David R. Levinson appeals from the bankruptcy court's granting of Appellee/Debtor LHI Holding's motion for summary judgment.
The background of the case is undisputed. The case has its origins in a state court complaint filed in 1987 by David R. Levinson against LHI, Marshall Levinson and Rick Levinson. David R. Levinson sued LHI for breach of contract and injunctive relief, while seeking judgment against Marshall and Rick Levinson on several tort claims.
The three men had, over a period of time, struggled for control of the company and its voting proxies. As a result, Marshall and Rick Levinson obtained control over the company. Marshall and Rick Levinson then entered into an agreement with David R. Levinson in November of 1986 in order to prevent hostilities and legal action. It provided that David R. Levinson would be employed with the company for 10 years subsequent to the agreement for the annual salary of $250,000. It also set forth various benefits and contained a covenant not to sue LHI, or Marshall or Rick Levinson. However, on August 21, 1987, LHI terminated David R. Levinson.
David R. Levinson proceeded to trial in state court on a theory of breach of contract against LHI, as well as tort claims against Marshall and Rick Levinson. On May 10, 1991, David R. Levinson obtained a jury verdict on the breach of contract claim, and on July 31, 1991, he obtained a judgment of $2,881,649.07 in a consolidated case based upon the agreement between the parties. The issue of whether Marshall and Rick Levinson were liable to David R. Levinson was not presented to the jury in the state court case. LHI has appealed the judgment to the *257 Florida Second District Court of Appeals and that appeal is still pending.
On September 18, 1991, Debtor LHI filed its petition for relief under Chapter 11 of the Bankruptcy Code in the Middle District of Florida, Tampa Division. David R. Levinson filed a proof of claim in the amount of his state court judgment in the Debtor's bankruptcy case.
Debtor filed a two-count adversary complaint against David R. Levinson. Count I of the complaint sought to avoid the lien of the judgment, and Count II sought an order of the bankruptcy court determining that David R. Levinson's claim was limited by § 502(b)(7) of the Bankruptcy Code as arising from the termination of an employment contract. The bankruptcy court first ruled in Debtor's favor on Count I and avoided the lien of the judgment. That decision is immaterial to this appeal. However, on July 13, 1992, the bankruptcy court entered its Order Granting Motion for Summary Judgment in which the Court determined that § 502(b)(7) limited David R. Levinson's claim. 142 B.R. 1007. David R. Levinson then instituted this appeal seeking reversal of the bankruptcy court's order granting summary judgment.
On review, the Court cannot modify the bankruptcy court's findings of fact unless they are shown to be clearly erroneous, while the conclusions of law are reviewed de novo. Bankruptcy Rule 8013, 11 U.S.C.A.; See also Pepenella v. Life Ins. Co. of Ga. (In re Pepenella), 103 B.R. 299, 300 (M.D.Fla.1988); In re Owen, 86 B.R. 691, 693 (M.D.Fla.1988).
Appellant first contends that the bankruptcy court erred in applying § 502(b)(7) of the Bankruptcy Code to limit his claim based on LHI's breach of the agreement. This section states that if a debtor objects to a claim, the court, after notice and a hearing, should determine and allow the full amount of the claim as of the date of the filing except to the extent that
"(7) if such claim is the claim of an employee for damages resulting from the termination of an employment contract, such claim exceeds
(A) the compensation provided by such contract, without acceleration, for one year following the earlier of
(i) the date of the filing of the petition; or
(ii) the date on which the employer directed the employee to terminate, or such employee terminated, performance under such contract; plus
(B) any unpaid compensation due under such contract, without acceleration, or the earlier of such dates; . . . "
Appellant's first contention is premised upon several arguments that have been handled with a troubling disparity in the various district courts that have confronted the issues. First, Appellant argues § 502(b)(7) does not apply to employment contracts that are not executory at the time the debtor files bankruptcy. To support this conclusion, Appellant claims that the legislative history of § 502(b)(7), as well as its analogous provision, § 502(b)(6), unambiguously state that § 502(b)(7) was not intended to apply to non-executory contracts. Appellant points to further support for this construction in binding Eleventh Circuit precedent. See, Folsom v. Prospect Hill & Resources, Inc. (In re Prospect Hill & Resources, Inc.), 837 F.2d 453 (11th Cir.1988).
Appellant assures this Court that the legislative history unambiguously supports his view; however, he cites no persuasive, relevant legislative authority to advance his position. Appellant's reliance on Prospect Hill is misplaced as well. Prospect Hill involved a debtor who objected to the claim of a creditor who had a claim for vested retirement benefits. Id. at 454. The Eleventh Circuit held that § 502(b)(7) dealt only with claims of employees, and that because the creditor was a retired worker and not an employee, the section did not apply. Id. at 455.
Several portions of the Prospect Hill decision are extremely important to this appeal, for this Court is bound by its holding if it is analogous to the present case. First, the district court's decision in Prospect Hill, which the Eleventh Circuit affirmed, reversed the bankruptcy court's decision and held that because the creditor was not an employee at the time the debtor breached its *258 contract with him, § 502(b)(7) did not apply to his claim. Secondly, in the decision's concluding sentence, the Eleventh Circuit stated that because the debtor's breach of contract did not occasion a termination of the creditor's performance or employment, his claim falls outside § 502(b)(7). This pair of sentences read together leads this Court to the conclusion that the Prospect Hill decision is factually distinguishable from the instant case. Unlike the creditor in Prospect Hill, Appellant was an employee of the Debtor and the Debtor's breach of the agreement did occasion Appellant's termination of employment. Consequently, the facts upon which the Prospect Hill court based its decision are not present in this appeal.
Appellant argues that the Prospect Hill case establishes that a contract must still be executory in order for § 502(b)(7) to apply. While the language in Prospect Hill clearly suggests that ongoing obligations, bilateral in nature, are discontinued in bankruptcy and that the executory contract becomes unilateral, thus vesting the bargained-for benefit, the bankruptcy court properly classified this language as dictum.
Supporting this reasoning is the plain language of § 502(b)(7). The language conclusively demonstrates that its application is solely independent of whether a contract is executory or not. Not only is the word "executory" not mentioned anywhere within the statute itself, but the very essence of the statute would be rendered meaningless should Appellant's interpretation apply. Section 502(b)(7) applies from the earlier of (1) the date of filing the petition or (2) the date the employee was terminated. Concluding that a contract must still be executory would support an absurd reading of the section because any employment contract that is terminated pre-petition would cease being executory, and, as Appellant would have it, all pre-petition, non-executory contracts are outside the purview of § 502(b)(7). This result is illogical and void of reason.
Appellant's next argument is that when the employee's termination is remote in time or cause to the debtor's bankruptcy, and when the termination did not occur as a result of the debtor's worsening financial condition, § 502(b)(7) should not apply. Appellant points to the cases In re Vic Snyder, 23 B.R. 185 (Bankr.E.D.Pa.1982), and Prospect Hill, 837 F.2d 453 (11th Cir.1988).
In Vic Snyder, the bankruptcy court refused to apply the one year limitation in a case in which the creditor's claims had arisen four years before the bankruptcy filing and had been settled more than one year before the filing. The court ruled that § 502(b)(7) "was not intended to apply in cases such as this; but, rather this provision was intended to apply to breaches of contract flowing from the bankruptcy or its immediate consequences." Vic Snyder, 23 B.R. at 186. Appellant attempts to embrace this reasoning in arguing that his claim, and subsequent judgment, did not flow from the bankruptcy or its immediate consequences and is, therefore, exempt from the one year limitation.
In direct conflict with the Vic Snyder case are two decisions out of the bankruptcy court in Minnesota styled as In re Johnson, 117 B.R. 461 (Bankr.D.Minn.1990), and In re CPT Corp., 1991 WL 255679, 1991 Bankr.Lexis 1730 (Bankr.D.Minn.1991). The Johnson court based its holding upon the fact that a simplistic reading of the section results in finding that Congress never suggested, either on the face of the statute or in its comments or legislative history, that only post-petition terminations, or ones after an undeterminable deadline, were contemplated within the statute. The court went on to reason that no standard is enunciated in Vic Snyder to determine the cutoff of the application of § 502(b)(7). Johnson, 117 B.R. at 467. Consequently, the court reasoned that the section applies to both pre-petition and post-petition terminations of employment contracts regardless of the remoteness of the termination.
The CPT court rejected the Vic Snyder court's contention that § 502(b)(7) should be limited to claims that were a part of a deepening financial problem prior to bankruptcy. The court concluded that notwithstanding whether a claim was reduced to judgment prior to filing, the fact that a claim is too remote from the filing of the petition is irrelevant to the bankruptcy court's determination of whether to apply § 502(b)(7).
*259 Appellant also cites to Prospect Hill for the proposition "that the disparate events of termination and breach compared to debtor's bankruptcy petition render § 502(b)(7) inapplicable." Appellee argues that Appellant misreads Prospect Hill because there the court specifically found the debtor's breach did not occasion a termination of the creditor's performance or employment since the creditor was no longer an employee of the debtor, thus the claim fell outside § 502(b)(7). Therefore, Appellant's claim that Prospect Hill is concerned with the lack of relationship between bankruptcy on the one hand and breach and termination of employment on the other is misplaced.
Both parties attempt to affiliate their arguments with holdings by Judge Paskay and Judge Kovachevich from the Middle District of Florida Bankruptcy Court and District Court, respectively, from a set of cases decided in 1990 and 1991. See, In re Murray Indust., Inc., 114 B.R. 749 (Bankr.M.D.Fla. 1990) ("Murray I"), and In re Murray Indust., Inc., 130 B.R. 113 (Bankr.M.D.Fla. 1991) ("Murray II"). Despite each parties' semantics, the undeniable fact is that each decision failed to confront the Vic Snyder holding directly. Such reluctance was, and probably still remains, understandable as there was no other directive present at the time. However, given the Minnesota court's rulings, there now exists some alternative approach to examining this issue. This alternative approach involves sensible and consistent reasoning and a sound holding as well.
Absent some concrete appellate directive as to which statutory construction should be applied, this Court will err on the side of logical statutory interpretation and apply the rule set forth by the court in In re Johnson and In re CPT Corp. This court refuses to read words into a statute or establish a construction that quite simply is not there. Establishing new statutory language is a job better suited for the legislature.
Therefore, the Court affirms the bankruptcy court's determination that § 502(b)(7) operates to limit Appellant's claim resulting from breach of the agreement.
Appellant lastly argues, in support of his contention that § 502(b)(7) should not apply to the instant case, that the bankruptcy court erred in failing to include compensation due for the four years from the time that he was dismissed as an employee by LHI to the date of his state court final judgment that liquidated his claim in the allowed amount of his claim. Appellant's argument, thus, requests the Court to find that the date of his termination for purposes of applying § 502(b)(7) was the date that the judgment was entered (i.e., July 31, 1991). However, the date Appellant was terminated was not the date the judgment was issued. Section 502(b)(7) provides that the date to be used for computation of the allowable amount is to be the earlier of the date employment was terminated or the date of filing, not from the date a state court eventually liquidates a claim based upon breach of an employment contract.
Another contention Appellant raises on appeal is that the bankruptcy court erred when it refused to consider the factual totality of the state court action brought by him against LHI to determine the true nature of the final judgment obtained by him. Appellant argues that because LHI has filed a bankruptcy petition and asserted the new defense of § 502(b)(7), which is not viable in any other forum, Appellant should be allowed to undo any ill effects of the state court judgment as may be necessary to meet the newly created defense of § 502(b)(7), which now seeks to limit his claim.
Quite obviously, certain aspects of the agreement in question are sufficient to qualify it as an employment contract. In In re Charter Co., 82 B.R. 144 (Bankr.M.D.Fla. 1988), the court held that an employment contract is within the purview of § 502(b)(7) if it establishes the terms and conditions of an employment relationship. The opinion of In re Johnson, supra, also provides guidance as to typical provisions in an employment contract. The bankruptcy court relied upon these two decisions in holding that because the agreement provided for a salary, automobile allowance, a fringe benefit allowance, life insurance, health and medical benefits, and participation in the retirement plan, it was properly characterized as an employment *260 contract. Appellant, however, claims that it was much more.
Appellant maintains that the bankruptcy court erred when it refused to consider the factual totality of the state court proceeding to determine the true nature of the judgment. Appellant cites Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), as authority for this Court to require the bankruptcy court to conduct a further indepth analysis of the genesis of his claims that are now being asserted to meet the defense of LHI's bankruptcy, and Johnson, supra, and Wright v. Holm (In re Holm), 931 F.2d 620 (9th Cir.1991), for the proposition that the bankruptcy court did not examine the underlying state court proceeding closely enough.
Appellant's claims were not contingent and unliquidated based on a multi-theory state court complaint as in Johnson. In fact, although the state court complaint was a fourcount complaint, Appellant sought relief against the Debtor only on the grounds of breach of the contract and injunctive relief, seeking entitlement to certain benefits under the agreement. As mentioned before, the remaining two counts sought relief against Marshall and Rick Levinson on tort claims. The state court verdict and judgment establish liability solely against LHI for termination of the agreement. The lone two counts against Appellee were based exclusively upon breach of contract theories. Thus, the Court holds that the bankruptcy court thoroughly and properly reviewed the state court proceedings in determining that the true nature of the judgment was based solely on LHI's termination of the agreement.
Lastly, Appellant asks this Court to reverse the bankruptcy court's summary judgment order on the grounds that it erred by issuing such an order when the only actual record affidavit was from the non-moving party and is uncontroverted. Appellant's affidavit seeks to create a factual issue by arguing it was Appellant's understanding that the agreement was really a settlement and not an employment agreement. The bankruptcy court held that Appellant's affidavit did not raise any material issue of fact. Again, Appellant cites to Brown v. Felsen for the suggestion that the case preserves the rights of a judgment creditor to relitigate issues outside the four corners of a judgment when a debtor interposes the defense of bankruptcy. The Court agrees with Appellee in that Appellant does not simply desire to relitigate his claim and establish liability based upon grounds other than breach of the agreement; rather, he desires to have the judgment stand for something it is not a liquidated claim based upon tort liability or other theories. The bankruptcy court was clear in holding that its order applied to only to limit Appellant's claim represented by the judgment. The order does not limit any other claims Appellant may have against the estate that arise independently of the agreement, thus he is not in the position of "having to undo any ill effects of the judgment." What he must do is establish liability against LHI on grounds other than a breach of the agreement.
Accordingly, it is ORDERED and ADJUDGED that:
(1) The bankruptcy court's order granting Appellee's motion for summary judgment is affirmed; and
(2) The Clerk is directed to close this case.
DONE and ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2985564/ | November 7, 2013
JUDGMENT
The Fourteenth Court of Appeals
SEDRICK DOMONIQUE HAYWOOD, Appellant
NO. 14-12-00102-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3444492/ | Affirming in part and reversing in part. *Page 152
Eugene E. Gray, committed suicide at a hotel in Pikeville, Kentucky, sometime during the night of January 13, 1939, and thereafter the Pikeville National Bank Trust Company was duly appointed and qualified as administrator of his estate and as such brought this action against Mrs. Clara G. Shirley, a sister of decedent, under Section 639a — 1 et seq., Civil Code of Practice, for a declaration of rights concerning matters hereinafter set out.
Since the case was submitted upon pleadings and exhibits and the petition attempted to set forth all facts necessary or pertinent to the question involved which were admitted by answer, we shall review at some length the substance of the petition.
Deceased was a bachelor about 60 years of age. He was survived by Mrs. Shirley, a brother, W.W. Gray, and a nephew, Virgil G. Gray, son of a deceased brother, as his only heirs at law. His funeral expenses were paid out of his estate and deceased owed no debts at the time of his death. He had money on deposit in banks in excess of $30,000 and other personal estate worth several thousand dollars and an undivided interest in real estate. He was devoted to his sister with whom he spent considerable time at her home at Greenwood, Virginia, and in the course of years had made gifts of considerable sums to her and her children all of whom in recent years had been dependent upon him for support. He maintained a room in a hotel at Huntington, West Virginia, where he lived for several years and when not with his sister at her home. He was in ill health, being afflicted with a tubercular condition. He was born and spent much of his early life in Pike county, where his father, mother and some of his family lived and where he frequently visited. On January 12, after carefully packing his clothes and personal effects in two trunks which he stored with the hotel, deceased paid his bill and gave up his room at Huntington. He took with him to Pikeville all his notes, bonds, insurance policies, pass books, etc., and upon arriving at the latter place secured a safe deposit box in a local bank and deposited them therein, leaving a memorandum in his own handwriting with reference thereto and with respect to other property of a partnership in which he was a member. He also executed and left a writing stating that it was his wish that his estate be settled by an administrator in Pike County. He had to his credit in a savings account *Page 153
in the Peoples National Bank of Charleston, West Virginia, a deposit which with accrued interest amounted to $5,126 evidenced by a pass book issued by the bank.
On January 12 and before leaving Huntington, deceased, in his own handwriting, wrote and signed on the, page of the pass book where his savings account with the Peoples National Bank was shown the following endorsement:
"Huntington, W. Va. Jan. 1/12/39.
"Peoples National Bank.
"Please make out new book in name of Clara G. Shirley of Greenwood Virginia; with the above $5000.00 with accrued interest in lieu of above, and mail to her.
"E.E. Gray."
This pass book was inclosed with a letter under same date directed to the bank and placed in the mail which excluding signature and formal part reads:
"I am inclosing my savings book with endorsement over to Clara Shirley in book. Please make out new book in her name for $5000.00 and accrued interest and mail to her at Greenwood, Virginia."
This letter was received by the bank on January 14 and it had carried out instructions of deceased, mailed the pass book to Mrs. Shirley as directed and wrote him to that effect before it learned of his death.
In March, 1932, Conrad E. Shirley, former husband of Clara G. Shirley, executed and delivered to deceased a note for $4,000 secured by a mortgage or deed of trust on a farm in Albemarle County, Virginia. Upon separation and divorce of Mrs. Shirley from her husband the latter conveyed the farm to her subject to the lien to secure the $4,000 note with accrued interest.
On January 12, 1939, and before leaving Huntington for Pikeville, deceased in his own handwriting made and affixed his signature to the following endorsement on the back of the note, "Paid in full, January 12, 1939." He enclosed this in a letter directed to Henry D, Goodloe, an attorney at Crozet, Virginia, which letter excluding signature and formal part reads:
"I am enclosing the note and copy of an original mortgage against property of Conrad B. and Clara *Page 154
G. Shirley and want you to act as Power of Attorney and go to the clerk's office and have the mortgage marked paid and satisfied. You can render your bill for this service to Mrs. Shirley at Greenwood. I wish you would attend to this matter at earliest date."
This letter with the enclosure was received by Goodloe on January 13, and the following day he made the release as directed in the letter, and on the 15th, and before learning of the death of deceased, took the canceled note and mortgage to the home of Mrs. Shirley and delivered it to Mrs. Shirley or to her son for her.
On and prior to January 5, 1939, deceased had on deposit in a checking account in a bank at Huntington a sum of money in excess of $2,000. On that date he made out and signed a check on such account payable to the bank for the sum of $2,000 for which he requested and received a cashier's check on the bank for that sum payable to the order of Clara G. Shirley. On January 12, 1939, and before leaving Huntington he enclosed this check in a letter addressed to Mrs. Shirley at Greenwood and same was received by her at that place before noon on January 13, 1939. On the morning of January 14 and before receiving information of the death of deceased, Mrs. Shirley endorsed the check and mailed same to a bank at Charlottsville to be credited to her account which the bank did.
It was alleged in the petition that controversy had arisen between Mrs. Shirley and the bank as administrator as to whether the three transactions above set out constituted valid gifts to her of the subject matter involved, or whether they were assets of the estate, and a declaration of the rights of the parties with respect thereto was asked.
The court adjudged Clara G. Shirley to be the owner of $5,126 evidenced by savings account in the bank of Charlottsville, $2,000 evidenced by cashier's check of the Huntington bank and the canceled mortgage note for $4,000 executed by Conrad Shirley to deceased as gifts made and delivered by decedent to her and which were accepted by her and legally executed and completed; that the plaintiff's petition be dismissed and it take nothing thereby. It is appealing.
The lower court did not undertake in his opinion or judgment to determine the character of the gifts, that *Page 155
is, whether they were gifts inter vivos or gifts causa mortis. Manifestly none of these transactions could be upheld as gifts causa morris because vital and necessary elements are lacking, one of which is that such gifts must be made in expectation of imminent death from a disease or peril then impending. Dickerson v. Snyder, 209 Ky. 212, 272 S.W. 384 and authorities therein cited. While it is alleged in the petition and admitted by answer that decedent was afflicted with tuberculosis, he did not die of that disease, but came to his death by self-destruction which the record indicates he had contemplated and determined upon several days before he carried his determined purpose into effect. Normal men are the arbiters of their own fate so far as suicide is concerned, since that is a matter within their own power of control. But not so with disease or dangers and risk to which they may be exposed by surgical operations or like perils. We find no authority to indicate that apprehension of death by contemplated suicide is such imminent peril as would uphold a gift causa mortis. On the contrary, there is authority indicating otherwise.
In 28 C. J. 689, it is said:
"A gift made in contemplation of death to be effected by suicide is not valid as a gift causa morris, not only because the intent to commit suicide may be abandoned, but also a gift so made is against public policy." See also Bainbridge v. Hoes, 163 A.D. 870, 149 N.Y. S. 20.
It will thus be seen that our consideration is limited to determining whether the three transactions constituted valid gifts inter vivos. It is not denied, and in the circumstances revealed by the record it cannot be doubted, that decedent intended to make gifts of the subject matter of these transactions to his sister but in order to make them valid as gifts inter vivos it was necessary that there should be a delivery whereby the donor gave up dominion and control over the subject matter of the gifts and placed same in the donee during their lives. To constitute such a gift the property must be delivered absolutely and the gift go into immediate unconditional effect. If future control over the property remain in the donor until his death there was no valid gift inter vivos. It is absolutely essential to the validity of such gifts that there should be a delivery to the donee whereby the thing given should immediately pass and be *Page 156
irrevocable by the donor. Stark v. Kelley, 132 Ky. 376,113 S.W. 498; Brewer's Adm'r v. Brewer, 181 Ky. 400, 205 S.W. 393; Foxworthy v. Adams, 136 Ky. 403, 124 S.W. 381, 27 L.R.A., N. S., 308, Ann. Cas. 1912A, 327; Taylor v. Purdy, 151 Ky. 82,151 S.W. 45. This court in harmony with the general trend of authority has consistently held that the delivery need not actually be made to the donee but may be made to another as agent or trustee for him. Goodan v. Goodan, 184 Ky. 79,211 S.W. 423; Farris v. Farris, 269 Ky. 466, 107 S.W.2d 299, 303. A third person to whom property is delivered with instructions to give it to the donee is presumed to take it as trustee for him. Williams v. Letton, 228 Ky. 371, 15 S.W.2d 296. While the delivery of the gift inter vivos may be actual, symbolical, or constructive, in either event there must be the parting of dominion over the property included in the gift from the donor and placing it with the donee. Kelley-Koett Manufacturing Company v. Goldenberg, 207 Ky. 695, 270 S.W. 15. Unquestionably the letter and the enclosed pass book with directions respecting change in the account, etc., were not delivered to the bank until after the death of appellant's decedent.
Argument is made on behalf of appellee that the placing of this letter in the mail by decedent was an effective and complete delivery to the bank as trustee of appellee when the letter was posted. Strange to say that in all that has been written concerning gifts no case has been cited and an extensive research of authorities has revealed none directly in point. Counsel for appellee cite cases to support argument that a deposit of an insurance policy in the mail constituted delivery of the policy to the insured; and there are cases relating to sales contracts, holding in effect that where a proposal is made by writing or telegraphing, an acceptance placed in the mail or with the telegraph company immediately becomes effective, so far as the sender of the proposal is concerned, but clearly those eases are not in point. In the case of Commonwealth Life Insurance Company v. McGuire, 190 Ky. 134, 226 S.W. 402, 403, it appears that a policy contract had been issued and mailed to the local agent of the insurance company for the insured. It was held in effect that the delivery to the agent for the insured was a delivery to the insurer, and in the course of the opinion it was said:
"* * * the moment the agent at Owensboro received *Page 157
this contract there was a delivery of the same to the insured in contemplation of law."
No question of proposal or acceptance under contract is involved in this instance but decedent was attempting to make a voluntary transfer of his property to his sister without consideration and in order to effect that purpose it was necessary that the gift should go into immediate effect and be beyond his control or right of revocation. It is a matter of common knowledge that under postal regulations the sender of a letter may by proper application to postal authorities have same delivered back to him at any time before it is delivered by the postal authorities to the addressee. Since the letter was not received by the bank until after the death of Mr. Gray, we are constrained to hold there was no delivery before that event and therefore not a valid gift inter vivos of the money on saving deposit. In passing we might add that this transaction cannot be enforced as a declaration of trust by the donor since, as has been held by this court, "* * * A gift of the equitable or beneficial title must be complete and effectual in the case of a trust as is the gift of the thing itself in a gift inter vivos." Frazier v. Hudson, 279 Ky. 334,130 S.W.2d 809, 811, 123 A.L.R. 1331, and cases therein cited.
All the essential elements of a gift inter vivos attended the transfer of the canceled mortgage note to appellee. The delivery was completed when the letter containing the canceled note was received by the attorney who was directed under authority contained in the letter to make a release of the mortgage and deliver the note, to appellee. Delivery to the attorney as agent or trustee, for appellee was a delivery to her and was effective even though she knew nothing of it until after the death of the, donor. In the absence of such knowledge before the death of the donor there can be no actual acceptance of the gift by her but in such circumstances and where the gift is beneficial to the donee acceptance will be presumed.
The transfer of the cashier's check for $2,000 may also be upheld as a valid gift inter vivos. An ordinary check is generally considered by courts as merely a promise to pay. The gift of such a check is not completed until it is paid or accepted by the drawee (28 C. J. 661); however, a cashier's check is entirely different from the ordinary check. *Page 158
"It is issued by the authorized officer of a bank, directed to another person, evidencing the fact that the payee is authorized to demand and receive from the bank, upon presentation, the amount of money represented by the check. Cashier's checks, from their peculiar character and general use in the commercial world, are regarded substantially as the money which they represent. * * *" 7 Am.Jur. 379. See, also, 9 C. J. 381.
The delivery of the cashier's check to appellee had the same effect as a delivery of the cash itself which it represented. Whether the issuance by the bank of the cashier's check in favor of appellee would have amounted to delivery we need not determine because the check was actually delivered before the death of the donor.
For the reasons indicated the judgment is affirmed in part and reversed in part for proceedings and judgment in conformity with this opinion.
Whole Court sitting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3099730/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Jagdish Tummala, M.D., Everest Inpatient Physicians, PLLC, Shah &
Dichoso, PLLC, Pragnesh R. Shah, M.D., P.A., and Daryl D. Dichoso,
M.D., P.A. v. Total Inpatient Services, PA
Appellate case number: 01-14-00458-CV
Trial court case number: 2012-72321
Trial court: 270th District Court of Harris County
The parties to this appeal have filed a “Joint Motion to Adopt Briefing Schedule and
Motion for Leave to Assert Cross Points in Appellee’s Brief.” We deny the motion.
The appellants’ brief of Jagdish Tummala, M.D., Everest Inpatient Physicians, PLLC,
Shah & Dichoso, PLLC, Pragnesh R. Shah, M.D., P.A., and Daryl D. Dichoso, M.D., P.A. is due
to be filed with this Court within 30 days after the date of this order. See TEX. R. APP. P.
9.4(i)(1), (2)(B), 38.1.
The cross-appellant’s brief of Total Inpatient Services, Inc. is due to be filed with this
Court within 30 days after the date of this order. See TEX. R. APP. P. 9.4(i)(1), (2)(B), 38.1.
The cross-appellees’ brief of Jagdish Tummala, M.D., Everest Inpatient Physicians,
PLLC, Shah & Dichoso, PLLC, Pragnesh R. Shah, M.D., P.A., and Daryl D. Dichoso, M.D.,
P.A. is due to be filed within 30 days after the date that Total Inpatient Services, Inc.’s cross-
appellant’s brief is filed. See TEX. R. APP. P. 9.4(i)(1), (2)(B), 38.2, 38.6(b).
The appellee’s brief of Total Inpatient Services is due to filed with this Court within 30
days after the date that Jagdish Tummala, M.D., Everest Inpatient Physicians, PLLC, Shah &
Dichoso, PLLC, Pragnesh R. Shah, M.D., P.A., and Daryl D. Dichoso, M.D., P.A. appellants’
brief is filed. See TEX. R. APP. P. 9.4(i)(1), (2)(B), 38.2, 38.6(b).
The reply brief, if any, of Jagdish Tummala, M.D., Everest Inpatient Physicians, PLLC,
Shah & Dichoso, PLLC, Pragnesh R. Shah, M.D., P.A., and Daryl D. Dichoso, M.D., P.A. is due
to be filed within 20 days after the date that Total Inpatient Services, Inc.’s appellee’s brief is
filed. See TEX. R. APP. P. 9.4(i)(1), (2)(C), 38.3, 38.6(c).
The reply brief, if any, of Total Inpatient Services is due within 20 days after Jagdish
Tummala, M.D., Everest Inpatient Physicians, PLLC, Shah & Dichoso, PLLC, Pragnesh R.
Shah, M.D., P.A., and Daryl D. Dichoso, M.D., P.A. cross-appellees’ brief is filed. See TEX. R.
APP. P. 9.4(i)(1),(2)(C), 38.3, 38.6(c).
It is so ORDERED.
Judge’s signature: /s/ Terry Jennings
Acting individually Acting for the Court
Date: August 7, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3453518/ | Affirming. *Page 390
In this action the appellant sought a declaration of rights as to whether he was a contract carrier subject to weight taxes under the Motor Vehicle Act and injunctive relief against imposition of the tax. It was adjudged that he was a contract carrier, subject to the tax, and the relief was accordingly denied. He appeals.
The appellant, a saw mill operator, entered into two contracts with Bond Brothers, a corporation, for the cutting and manufacturing into lumber of two tracts of timber. One contract was fully performed prior to the effective date of the Acts of 1942. The other was performed after that date. The timber was to be manufactured into lumber and delivered to designated points, the appellant being free to use any method of transportation. The finished lumber was actually transported by motor truck to the delivery point. No special consideration was stipulated for transportation but approximately 15% to 20% of the contract price represented transportation costs. The appellant is only a saw mill operator and transportation of lumber is merely a component part of his business. He transports no property for anyone other than Bond Brothers, has no statement of charges for transportation and does not file a statement of such charges with any agency of the state.
By virtue of Section 2739J-94, KS and KRS 281.020, certain phases of transportation by motor vehicle are exempt from the weight taxes imposed by KRS 281.480. The two sections are mentioned for the reason that when KS 2739J-94 was amended by Chapter 185 of the Acts of 1942, there was a considerable change in verbiage and the present controversy is affected by both sections, since one of the contracts was performed before and the other after the effective date of the 1942 Act. However, since the statute as it appears in KRS 281.020 is more susceptible to the construction advanced by the appellant, we will approach the question as if both contracts had been performed subsequent to the effective date of the 1942 Act. In KRS 281.020 it is provided that there shall be exempt from the weight tax,
"Motor vehicles being used exclusively for the transportation of agricultural and dairy products from the farm, market, gin, warehouse, dairy or mill, regardless of the ownership of the vehicle, so long as the title of the goods transported remains in the producer. As *Page 391
used in this subsection, the word 'producer' includes a landlord where the relation of landlord and tenant or landlord and cropper is involved, and the phrase 'agricultural products' includes fruit, livestock, meats, fertilizer, wood, lumber, cotton, naval stores, products of grove or orchard, poultry and eggs."
It is the contention of the appellant that he comes within the exemption because he was engaged in transporting lumber from a mill for the producer of the lumber, in whom the title to the lumber remained during the transportation. The appellee insist that Bond Brothers, for whom the transportation was effected, was not the producer of the lumber within the meaning of the statute. If this latter contention, the one adopted by the trial court, be correct, then the transportation by appellant was not exempt since the exemption applies only "so long as the title of the goods transported remains in the producer."
The allegations of the petition are not sufficient to establish that Bond Brothers was the producer of the transported lumber within the meaning of the statute. There is no allegation that Bond Brothers owned the land on which the timber was grown or produced and no allegation of any fact showing production by that company. The allegation in this respect is merely that Bond Brothers owned the timber. This allegation, construed most strongly against the pleader in accordance with the well-settled rule, is one that Bond Brothers had purchased or acquired the timber from the producer. The manufacture of the timber into lumber did not constitute Bond Brothers a producer of agricultural or dairy products. The statute exempts only producers of such products, not purchasers thereof of one who converts them into finished products by some manufacturing process. In Priest v. State Tax Commission, 258 Ky. 391, 80 S.W.2d 43, we held unconstitutional a statute purporting to exempt a carrier when the transportation may not have been for the benefit of the producer or farmer but for the benefit of another, perhaps a purchaser.
For aught that appears in the petition, Bond Brothers may be only a lumber dealer and it is apparent that there was no purpose behind the exempting statute to permit taxless transportation over the highways of the manufactured product of such a dealer — its purpose was *Page 392
only to benefit the actual producer of farm and dairy products. We think the trial court correctly held that Bond Brothers was not a producer of the lumber within the terms of the statute.
It is also contended for the appellant that he was not a contract carrier and therefore not subject to the weight tax imposed by KRS 281.480 on "every common carrier and every contract carrier primarily engaged in transporting property for hire."
KRS 281.010 defines a contract carrier thus:
"'Contract carrier' means any person who, under individual contracts or agreements, engages in the transportation (other than as common carrier) by motor vehicle of passengers or property for hire."
It is insisted that the appellant was not a contract carrier because his contracts only required him to deliver the lumber at a particular place, no particular method of transportation being specified and, consequently, he could deliver the lumber by any form of transportation he chose. We see little merit in this argument since he was actually paid under his contract for motor transportation of the lumber over the highways of the state. Next, it is pointed out that no special compensation for transportation was stipulated in the contracts. This we regard as immaterial, since 15% to 20% of the contract price was actually for transportation, whether stipulated or not. We do not regard it as essential, to bring one under the statute, that a specific price or consideration for the transportation be stipulated or agreed upon.
It is also insisted that the appellant was not a contract carrier because he was not "primarily engaged in transporting property for hire" and the statute imposes the tax only on contract carriers thus engaged. We think, however, he was "primarily engaged in transporting property for hire" within the meaning of the statute. The transportation of the lumber was a substantial part of his business, as substantial and important as the logging or sawing end — the transportation branch of the business was not a mere incident (although so alleged as a conclusion) and the appellant was as primarily engaged in transportation as he was in the other features of his business. It is not to be thought that by combining a transportation business with another industry one may escape the tax imposed on transportation for hire. *Page 393
We think the trial court correctly adjudged that the appellant was a contract carrier subject to the weight tax.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1875802/ | 458 F.Supp. 202 (1978)
Milton SCHAFFNER, Petitioner,
v.
Louis GRECO, Warden of New York City Correctional Institution for Men, Respondent.
No. 77 Civ. 281.
United States District Court, S. D. New York.
October 20, 1978.
*203 Reuss & Ruchala, Bellerose, N. Y., for petitioner; Frederick M. Reuss, Jr., Bellerose, N. Y., of counsel.
Robert M. Morgenthau, Dist. Atty., New York County, New York City, for respondent; Robert M. Pitler, Henry J. Steinglass, Norman W. Barclay, Mark R. Dwyer, New York City, of counsel.
LASKER, District Judge.
In September of 1975, Milton Schaffner pled guilty in state court to bribe receiving in the second degree[1] and was sentenced to an indeterminate term of imprisonment not to exceed three years. While serving his term, Schaffner filed this petition for a writ of habeas corpus to set aside his conviction on the ground that his guilty plea was coerced by the conduct of the trial judge in violation of his due process rights under the Fourteenth Amendment.[2] An evidentiary hearing was held on February 7, 1978. The petition is granted.
*204 I.
Factual Background
Schaffner, who was employed as a New York City building inspector, originally pled not guilty to a two count indictment of bribe receiving and receiving an award for official misconduct.[3] He was brought to trial on September 10, 1975, in State Supreme Court. The evidence introduced against Schaffner was very damaging. The chief witness for the prosecution, Peter Roberto, an undercover agent for the City, testified that Schaffner had solicited and accepted a bribe of $150. in return for approving substandard construction work. To corroborate Roberto's testimony, the State introduced tape recordings of conversations between Roberto and Schaffner, in which a voice, allegedly Schaffner's, demanded that Roberto pay him "a yard and a half"[4] and in which a payoff appears to have been performed.
In his defense, Schaffner called Professor Louis Gerstman, a voice expert, who testified that, although Schaffner's voice could be heard on the tapes, certain critical, incriminating statements were made not by Schaffner but by an unidentified third person. Schaffner himself took the stand and testified that he had not solicited or accepted the bribe and that he lived sparingly on his modest income as a building inspector. On cross-examination, however, the prosecutor introduced evidence that Schaffner had deposited over $77,000. in four bank accounts during the years 1972 to 1974, at one time depositing $1,900. in one hundred dollar bills. When pressed, Schaffner was unable to explain how he had acquired such a large sum of money.
After cross-examination of the defendant had concluded on Friday, September 19th, the trial judge summoned counsel to the bench and informed them that if Schaffner proceeded with the trial and was found guilty by the jury, he would impose a harsher sentence than if he then entered a plea of guilty. The judge testified at the habeas hearing that he made the following statement:
"If this case goes all the way and this jury convicts this defendant, I certainly am not going to give him anything less than five years and the maximum penalty for this is seven years, so he could get something in the neighborhood of anywhere from five to seven years."
"I indicated that if he took a plea at this particular time, that I would impose a sentence, the maximum of which would be four years."[5] (Transcript, 128)[6]
Although the jury had apparently either been dismissed by this time or was out of earshot,[7] Schaffner, who was still sitting at the witness stand, overheard the conversation.
Schaffner did not change his plea at this time but met with his attorney, Michael Dowd, over the weekend to decide how to *205 deal with the damaging testimony concerning his bank accounts. Dowd testified at the hearing that at their meeting Schaffner seemed "very, very, very depressed." (Transcript, 67) He complained that he was not getting a fair trial and that the judge was hurting him in front of the jury; "he was yelling at me yesterday," he told Dowd, "he's determined to railroad me." (Transcript, 66-67) When Dowd questioned him about the bank records, Schaffner said that he could explain where the money came from but that it would not make any difference since the judge "is trying to kill me." (Transcript, 67) Nevertheless, Schaffner did not at that time decide to change his plea. (Transcript, 100-01)
On Monday, September 22nd, before the trial resumed, the judge again summoned counsel to the bench[8] and spoke with them, out of the hearing of both the jury and the defendant, about the possibility of a plea. The judge testified that he had said to Dowd that if Schaffner would change his plea to guilty, he would impose a sentence of only "zip to 3" (Transcript, 131-32), that is, an indeterminate sentence with a maximum of three years of imprisonment. After being told what the judge said and discussing it with Dowd for approximately three quarters of an hour, Schaffner decided to enter a plea of guilty.
At sentencing, on November 13, Schaffner moved to withdraw his plea on the ground that it had been coerced by the threatening conduct of the judge at trial. The court characterized the motion as "a sham and an outrage" (Trial Transcript, 12a) and denied it. Schaffner was then sentenced to an indeterminate term with a maximum of three years of imprisonment.
In his petition, Schaffner contends that the change of plea was induced by the trial judge's repeated threats of a heavier sentence in the event the trial continued, together with the contempt and incredulity with which he treated the defendant and his witnesses before the jury. Schaffner charges that, by the tone of voice he used, his facial expressions and the manner of his questioning defense witnesses, the judge continually gave the jury the impression that he considered the defendant guilty. Because of this alleged prejudicial conduct, Schaffner claims that he concluded he had no chance of acquittal and had no practical choice but to plead guilty.[9]
II.
Discussion
A plea of guilty satisfies due process if it "reflects the considered choice of the accused, free of any factor or inducement which has unfairly influenced or overcome his will," United States v. Gilligan, 256 F.Supp. 244, 253 (S.D.N.Y.1966) (Weinfeld, J.) See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). The issue is not whether Schaffner is actually guilty of the offense as charged or whether the trial judge intended to coerce his plea, United States v. Tateo, 214 F.Supp. 560, 564, 566 (S.D.N.Y.1963). Rather, the decision turns on "what was said and its probable effect" on the defendant, United States v. LaVallee, 319 F.2d 308, 315 (2d *206 Cir. 1963) (Friendly, J., concurring and dissenting). As Judge Weinfeld noted in a similar context such a determination cannot be made with "mathematical precision" but depends upon "an evaluation of psychological factors and elements that may be reasonably calculated to influence the human mind." United States v. Tateo, supra, 214 F.Supp. 560, 565.
The key "factor" in the case at hand is the impact which the conduct of the trial judge had on Schaffner's decision to plead guilty. New York law permits participation by the judge in plea negotiations, see United States ex rel. Selikoff v. Commissioner of Correction, 524 F.2d 650 (2d Cir. 1975); United States v. Follette, 395 F.2d 721 (2d Cir. 1968); United States v. LaVallee, 319 F.2d 308 (2d Cir. 1963), but distinguishes between remarks which provide a defendant with "a fair description of the consequences attendant upon the prisoner's choice of plea," and those which induce a plea "by enticement or threat." United States v. LaVallee, supra, 319 F.2d 308, 314.
Moreover, it would be unrealistic not to recognize that, because of the unmatched power which a trial judge exerts over the fate of the defendant, any action on his part is enormously significant to the defendant. In United States v. Werker, 535 F.2d 198, 202 (2d Cir. 1976), the Court of Appeals described the "subtle pressures" created by the participation of the trial judge in plea discussions:
"[The government's] arguments fail to consider, however, that quite apart from the sentencing process, the defendant may in fact be prejudiced or believe himself to be prejudiced if he does not plead guilty in response to the judge's proposed sentence. The defendant must view the judge as the individual who conducts the trial and whose rulings will affect what the jury is to consider in determining guilt or innocence. The defendant may therefore be reluctant to reject a proposition offered by one who wields such immediate power."[10]
The circumstances leading up to Schaffner's change of plea provide persuasive support for his claim that he was coerced by the judge to plead guilty. The trial judge played a major role in the plea negotiations, not simply participating but actually initiating both the Friday and Monday conversations.[11] Moreover, these discussions were not initiated prior to trial, when Schaffner could have contemplated the alternatives with relative objectivity but at a time when Schaffner was shaken and vulnerable following the introduction of extremely damaging testimony. Cf. United States v. Tateo, supra, 214 F.Supp. 560, 567.[12] Furthermore, rather than simply adhering to the terms of the proposal made on Friday, the judge offered Schaffner an added incentive to plead guilty on Monday by proposing a new, lower sentence in exchange for the plea.
*207 By any objective standard, these repeated offers of diminishing prison terms at mid-trial come dangerously close to enticement of a plea. Added to these considerations is the fact that, fairly construed, the record establishes that Schaffner, whose perceptions determine whether or not the plea was coerced, United States v. Werker, supra, 535 F.2d 198, 202, was convinced that the conduct of the trial judge would lead to his conviction. Schaffner testified before this court that he felt that the trial judge had made up his mind at the audibility hearing that he was guilty and continually discredited him and his witnesses at trial.[13] (Transcript, 8, 49-50) Dowd testified that Schaffner repeatedly complained during their weekend meeting that the judge was trying to "railroad" him and was "killing" him before the jury. (Transcript, 66-67)
There is ample evidence in the record that Schaffner's belief was reasonable and not simply the exaggerated reaction of the accused. Both Dowd and Joseph J. Cullen, an observer at the trial for the building inspectors' union, testified at the hearing that the judge constantly belittled the defense at trial. Dowd testified that, during the defense case, the judge would "roll his eyes and look up at the ceiling or grimace at the witness in wonderment" (Transcript, 56), that he used a "contemptuous" tone when referring to Schaffner or Dowd and, on several occasions, including during Schaffner's testimony, stood over the witness and shouted at him (Transcript, 57). Cullen testified that, during Schaffner's examination as to the bank accounts, the judge "was raising his eyes at the ceiling . . . and looking over at the jury and looking down at the defendant and shrugging his shoulders at times, tapping on the desk with the pencil or something in that manner . . ." (Transcript, 111) When Schaffner was questioned about the $77,000., Cullen testified, the judge stood up and leaned over the defendant, waiting for his answer. (Transcript, 112)
While neither of these men was wholly unbiased, their testimony was credible, particularly that of Dowd, who was placed in the difficult position of antagonizing a judge before whom he may very well appear in the future. Moreover, while the trial transcript does not reveal nuances of voice or manner, it does show that Dowd made innumerable objections at trial to the tone of voice and gestures of the judge.[14] It also establishes, as indicated in the margin,[15] that the judge was a dominant figure at trial, that he participated extensively in the questioning of witnesses and conducted the cross-examination of the defendant and *208 the chief defense witness, Professor Gerstman, virtually singlehandedly. In light of the searching questions put by the judge to the defendant and his witnesses on points critical to the defense, it is altogether reasonable to infer that Schaffner came to view the judge as an adversary rather than an impartial mediator.
The state argues, nevertheless, that Schaffner pled guilty because he realized that the evidence of his guilt was so overwhelming that he had no chance of acquittal. However, the record indicates that Schaffner clung to the notion of his innocence and was not deterred by the evidence alone from proceeding to a verdict. Dowd testified that, during their weekend meeting, Schaffner seemed more concerned with the impact which the judge was having on the jury than with the effect of the bank account testimony, and, even though the full significance of this testimony had probably sunk in by Monday morning, Schaffner appeared in court ready to proceed with the trial. Following the judge's second plea proposal on Monday, Schaffner again hesitated to change his plea but, according to Dowd, said to him:
"Look, Mike, I'm not guilty, but I'm going to get killed and I'm going to go to jail for five or seven years . . . You know, if it's this bad now, what's he going to do when he instructs the jury on the law? He's going to put me you know, tell them to convict me." (Transcript, 75)[16]
Moreover, Schaffner moved to withdraw his plea shortly after the trial ended when he appeared for sentencing. Taken together, these factors indicate that, while certainly conscious of the evidence against him, Schaffner cannot be said to have pleaded *209 guilty solely because of this evidence, but rather, the deciding factor in his mind was his fear of the judge.[17]
Since Schaffner's plea was made under circumstances which deprived him of the "capacity for reasoned choice . . . which is essential to a voluntary plea of guilty" United States v. Tateo, supra, 214 F.Supp. 560, 567, the petition is granted, and the conviction will be set aside unless within ninety days Schaffner is granted a new trial.
It is so ordered.
NOTES
[1] In violation of New York Penal Law Section 200.10.
[2] Since Schaffner was incarcerated at the time he filed his petition for a writ of habeas corpus, this court has jurisdiction to grant the writ even though he has subsequently been paroled. Gosa v. Mayden, 413 U.S. 665, 670 n. 3, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Indeed, "custody," as it is used in 28 U.S.C. § 2241, has been defined broadly to include release on parole, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and therefore this court would have jurisdiction even if the petition had been filed after Schaffner had been paroled. See also Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (person free on bail or recognizance subject to restraints which permit petition for writ of habeas corpus); Carafas v. LaVallee, supra, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (civil disabilities and burdens suffered by inmate following unconditional release permit maintenance of habeas action filed prior to release).
[3] In violation of New York Penal Law Section 200.10 and Section 200.25.
[4] Roberto testified that "a yard and a half" is an expression commonly used to refer to $150 (Trial Transcript, 334).
[5] Schaffner apparently misunderstood the terms of the judge's proposal, believing that the judge would impose a sentence of "five to seven" years if convicted even though no such sentence is possible under New York's penal law. It is not clear whether this confusion was ever dispelled. (See Transcript, 22-23, 87-88) If not, it is reasonable to conclude that it added to Schaffner's fear of the consequences of a conviction.
[6] All references to the transcript of the habeas hearing are marked (Transcript); all references to the transcript of the trial are marked (Trial Transcript).
[7] The judge testified at the hearing that the jury was never present during the plea discussions (Transcript, 125). The assistant district attorney also testified that the jury had been excused for the day (Transcript, 146). Mr. Dowd testified that he was uncertain whether or not the jury had been dismissed (Transcript, 82-83) but that the conversation took place at the bench, some twenty-five feet from the jury box (Transcript, 63).
[8] Although the judge stated at Schaffner's sentencing that the plea discussion on Monday morning was initiated at Dowd's request (Trial Transcript, 21a, 31a), both he and Dowd testified at the hearing that the judge called counsel to the bench on Monday to discuss the possibility of a plea (Transcript, 131, 70).
[9] The State contends that Schaffner is barred from collaterally attacking the conduct of the judge since his guilty plea constituted a waiver of claimed prior constitutional defects at trial. It relies for this proposition on the "Brady trilogy": Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). However, the rule of Brady is predicated on a finding that a guilty plea is made voluntarily, see Brady, supra, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747. Thus the State's argument begs the question since Schaffner's claim is precisely that his plea was not voluntary but was induced by the conduct of the judge. See Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
[10] The classic description of the relationship between the defendant and the judge was given by Judge Weinfeld in United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D. N.Y.1966):
"The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice. Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence." (footnotes omitted).
[11] See note 8 supra.
[12] the normal strain under which a defendant labors during a trial, greatly intensified by the cumulative impact of the testimony offered against petitioner by his codefendant, who had become a Government witness, the Court's advance announcement of the prospective sentence and, based thereon, the strong urging of his own counsel to plead guilty, it is difficult to believe that the defendant had that capacity for reasoned choice, that freedom of will which is essential to a voluntary plea of guilty." (footnotes omitted).
[13] Schaffner testified that, after listening to the tapes, the judge said, "I heard his voice on the tape. This man going to take a plea?" (Transcript, 8) According to Dowd, the judge said, "If that's not Schaffner's voice I'll eat those drapes." (Transcript, 55)
[14] For example, Dowd made the following objections during the examination of Professor Gerstman:
"The manner in which the Court conducted itself during the the manner being the speech, the tone and the intonation, the expressions of your Honor during the examination of Mr. Gerstman by myself, and the questions posed by the Court, in direct contrast to the manner and actions of the Court in respect to the prosecution's case, evidenced, in my opinion, a highly prejudicial attitude by this Court, which is which, I submit, your Honor, is being ascertained by the jury at this point," (Trial Transcript, 617);
and during the examination of the defendant:
"Your Honor, I object to your Honor's manner in standing over the witness, your tone of voice, which I think is intimidating, your Honor, in respect to the witness." (Trial Transcript, 837)
See also, Trial Transcript, 39, 71, 394, 568, 579, 647, 680-81, 833, 836, 855.
[15] The judge asked the following questions concerning the money in Schaffner's bank accounts:
"THE COURT: During those two years, did you make deposits in excess of the salary you received as a construction inspector from the City of New York?
MR. DOWD: Objection, your Honor.
THE COURT: $13,000 a year?
Overruled.
THE WITNESS: No.
THE COURT: In other words, you're saying you did not make deposits in those four account in excess of $26,000?
THE WITNESS: I'd have to go and get and find out where where I transferred money from one place to another. You're asking me if I deposited from my savings or you're trying to say that I got it in the Building Department.
THE COURT: I'm not trying to say anything, I'm asking you.
THE WITNESS: I don't know how much
THE COURT: Did you make deposits in those bank accounts? He's asking you whether you made deposits in those bank accounts in excess of $77,000 during that two-year period of time?
THE WITNESS: I can't give you an answer to that.
THE COURT: You cannot say definitely you did not?
THE WITNESS: I don't know what amount I transferred around.
THE COURT: Where would you get $77,000 to put into four bank accounts if you earned $13,000 a year?
THE WITNESS: I don't have $77,000 in those bank accounts.
THE COURT: He didn't ask you that, sir, he asked you whether or not you deposited $77,000.
THE WITNESS: I don't know how much I deposited." (Trial Transcript, 897-99)
and concerning the erasure from Schaffner's route sheet of the appointment during which the bribe was allegedly consummated:
THE COURT: What would be the reason for you to erase the route to erase anything that you placed down in the remarks column to the effect that you were visiting 30 Cooper Square?
THE WITNESS: This is only a reminder I had an appointment that at 30 Cooper Square.
THE COURT: Were you doing anything illegal at 30 Cooper Square?
THE WITNESS: No.
THE COURT: Did you go to 30 Cooper Square according to your testimony, to examine plans for alteration on the tenth floor?
THE WITNESS: Yes, sir.
THE COURT: Were you doing that in the service of the Building Department and the community of the City of New York?
THE WITNESS: Yes, sir.
THE COURT: And you put it down there; is that correct?
THE WITNESS: That's the way I testified.
THE COURT: And you examined plans; is that correct?
THE WITNESS: Right.
THE COURT: You erased it?
THE WITNESS: It's just an appointment.
MR. DOWD: Your Honor, I object to your questions.
THE COURT: Overruled." (Trial Transcript, 824-26)
See also, Trial Transcript, 800-01, 820-21, 826-28, 834-35, 848-49, 850-52, 854-55, 861-62, 897-913, 932-35.
[16] Dowd also testified that the following conversation took place between the two:
"I said, `Look, I have talked to [the judge] and if you plead guilty you are going to have to say you are guilty.'
He said, `But I'm not guilty.'
I said, `If you want to plead guilty and you intend to plead guilty we are going to have an allocution, and quite simply, Milton, it means you are going to have to lie if you are not guilty if you want to take the plea.'" (Transcript, 73)
[17] The State also argues that incentives to plead guilty of a far more coercive nature than those present here have been found constitutional, relying on the recent decision in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), in which the Supreme Court upheld the conduct of a prosecutor who offered either to recommend a sentence of five years if the defendant pled guilty to a lesser charge or, if he refused, to reindict him on a charge carrying a mandatory life term under a state recidivist statute.
We do not find that Bordenkircher supports the State's position here. The Bordenkircher court noted that it was dealing with the "`give-and-take negotiation common in plea bargaining between the prosecution and the defense which arguably possess relatively equal bargaining power.'" 434 U.S. 357, 362, 98 S.Ct. 663, 667, 54 L.Ed.2d 604, quoting from Parker v. North Carolina, 397 U.S. 790, 804, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). It cannot be argued that the same equality of bargaining power exists when the judge and the defendant are on opposite sides of the plea bargaining process, see United States v. Werker, supra, 535 F.2d 198, 202; United States v. Gilligan, supra, 256 F.Supp. 244, 254. Moreover, apart from the role played by the judge in the plea negotiations here, other pressures, such as the timing of the offers at mid-trial and the conduct of the judge during trial exist in this case and distinguish it from Bordenkircher.
We also disagree with the contention of the State that the difference between a sentence of 0-3 years or 0-5 years is too slight to induce a plea of guilty. Assuming that Schaffner would have been paroled after serving one-third of either sentence, he would have been released after one year under the shorter sentence and after one year and eight months under the longer one. We do not agree that an extra eight months of incarceration, nearly double the amount of prison time, would not seem significant to any defendant and particularly a first offender, which Schaffner was. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875540/ | 44 F.Supp. 43 (1942)
UNITED STATES
v.
EBELL.
No. 165 Civil.
District Court, W. D. Texas, El Paso Division.
April 2, 1942.
*44 William E. Clayton and R. Neill Walshe, Asst. U. S. Attys., both of El Paso, Tex., for the United States.
W. Joe Bryan, of El Paso, Tex., for defendant.
BOYNTON, District Judge.
This is a civil action, in its nature an action in equity, brought by the Government of the United States of America for the cancellation of a certificate of naturalization granted by order of this Court to the defendant Dr. Wolfgang Ebell on April 3, 1939; the United States alleging in its First Amended Complaint that such order of Court granting certificate of naturalization was secured by fraud on the part of the defendant, and illegally, as set forth in the various clauses and paragraphs of the First Amended Complaint filed by the Government herein.
The granting of naturalization and citizenship to an alien is the exercise or granting of a privilege to such alien by the Government granting same, and not a matter of right that can be claimed by an alien. Therefore all of the requirements prescribed by law as to the granting of naturalization must be fully met and complied with by the applicant, an alien seeking naturalization.
An order of naturalization once entered by a Court of competent jurisdiction is not to be lightly set aside, and once entered is not to be set aside unless it be clearly shown by competent evidence, by a preponderance of the evidence offered by the Government, that such order was secured by fraud, as result of fraud, or in some manner illegally obtained.
In this case the record shows, by testimony offered, that the defendant, Dr. Wolfgang Ebell, was born in Germany July 28, 1899, an alien. That he was educated in the schools of Germany; that he served in the German Army during World War 1; that after such war he studied medicine in the schools of Germany; that in 1927 he went to Mexico as a salesman for some German firm or corporation, and emigrated to the United States of America in 1930, coming to El Paso County, Texas, where he married, acquired property, and has remained since such time.
On July 28, 1933, he made and filed a declaration of intention in this Court to become a citizen of the United States of America, and on April 3, 1939, an order of this Court was entered granting his application and directing issuance of a certificate of naturalization to the defendant.
The evidence shows he was corresponding with relatives and others in Germany, some officials of the Government of Germany, and was interested in and in touch with conditions and matters taking place in Germany, while in Mexico and following his coming to the United States, as evidenced by exhibits introduced in evidence on trial of this cause, letters and communications in 1931 and 1933, and that in conversations he gave utterance showing his sympathy in Germany, and affairs and conditions in Germany, and became irritated and angry when persons, American citizens, might make remarks concerning actions of the Government of Germany and of people in Germany, and on one occasion stated that "Hitler would rule the world." I believe that remark was made in 1940 there is evidence to that effect and in 1941, and used the term "You Americans" in conversing with an American citizen, or citizens. He became a subscriber of "The Free American", a publication of the German-American Bund, edited in New York by Gerhardt Wilhelm Kunze, and published at Philadelphia, Pennsylvania. The editor of the newspaper, Gerhardt Wilhelm Kunze, was the recognized leader of such organization, that is, the German-American Bund, at that time in the United States of America, and a representative of the National Party of Germany in the United States of America.
The defendant became a member of the German-American Bund in the United States of America between the time of the filing of his declaration of intention in this Court and the entry of an order granting his application for naturalization, in connection with which, at such time, he took an oath of renunciation of allegiance to the German Reich, and oath of allegiance to the United States of America, without any mental reservation or purposes of evasion, *45 in accordance with the terms and provisions of such oath that was imposed on April 3, 1939.
The evidence shows that the newspaper "Free American", published as an organ of the German-American Bund, edited by Gerhardt Wilhelm Kunze, advocated and was in sympathy with the Nazi government in Germany, that is the Nazi National Party of Germany, and under the leadership of Hitler, extracts of which have been read here which advocated doctrines, in the opinion of this Court, contrary to a democratic form of government such as set forth and prescribed in the Constitution of the United States of America, as shown by expressions contained in such newspaper, the "Free American", and pamphlets containing speeches of Hitler and others found in the possession of the defendant Dr. Wolfgang Ebell at his residence or in his office in El Paso, Texas.
The testimony further shows that Gerhardt Wilhelm Kunze, leader of the German-American Bund and editor of the newspaper "Free American", came to El Paso frequently, or on several occasions, commencing perhaps in 1937, and held conferences with the defendant Dr. Wolfgang Ebell with reference to promulgating the interests of the German-American Bund and the doctrines advocated by such publication, and perhaps with others in El Paso.
There has been offered on trial of this cause various pins and insignia of membership in organizations in Germany and in this country that were in sympathy with and that indicated doctrines that were being advocated by the German Government, the Nazi National Party, contrary to and antagonistic to a democratic form of government such as prevails in the United States and as prescribed and set forth in the Constitution of the United States of America. Some of those pins relate merely to service perhaps that was rendered by the defendant in recognition of his service in the German Army during World War 1. The Court does not give much weight or bearing to those in the determination of the issues that the Court is here called upon to determine; but there are some, there is one I believe that has been testified to as indication of a badge or insignia of the Nazi Party of Germany that was issued in 1933. There is a pin, insignia of membership, which the defendant himself when upon the stand admitted, of membership in the German-American Bund.
There was offered in evidence, and admitted in evidence on the trial of this cause, Government Exhibits G-1 and G-2, which consist of a letter from Gerhardt Wilhelm Kunze, who has been identified as the publisher of the Free American and National leader of the German-American Bund in the United States, identified as bearing his signature, which letter bears date December 8, 1941 (which, historically, was the day after the attack at Pearl Harbor), and a letter that was enclosed therein addressed to a certain party in Connecticut; which letters were written and bear date indicating that they were written shortly subsequent to the date that the defendant Dr. Wolfgang Ebell had taken the writer of such letters, Gerhardt Wilhelm Kunze, from the United States to Mexico via the Ysleta bridge, crossing into Mexico, and went with him and met other parties in Juarez, and proceeded to Chihuahua.
Coming to the testimony offered on trial of this case by the witness George Brown, Deputy United States Marshal at this Division point, upon the serving by him of a notice to produce these two letters; that the defendant, being served while in the jail of El Paso County, stated or admitted having had possession of said letters: When upon the witness stand the defendant denied the making of such admissions, but stated that he, when served with such notice, had merely stated that he admitted receipt of the notice which contained notice that he had had them in his possession. There is that conflict in the testimony. The Court approves and adopts the testimony of the witness George Brown, and the Court makes a finding herein to that effect.
The Court does not refer to all of the testimony of the nature indicated by the Court, and introduced into the record, because the Court has not time or opportunity to do so.
The defendant offers in opposition thereto the testimony of several witnesses, citizens of the United States, residing in El Paso County, Texas, who testified to acquaintanceship with the defendant, and that in all of their conversations had with the defendant they did not discuss matters relating to war conditions in Europe, or in comparison between Germany and the United States, except possibly one witness touched upon such subject; that none of these witnesses at any time heard the defendant make any statement that was derogatory, *46 in their opinion, to the United States or the Government of the United States, or indicating that he was not attached to the principles of the Constitution of the United States and the American form of Government. The defendant himself, when upon the stand, testified that he was attached to the principles of the Constitution of the United States, that he was sincere and honest in the oath that he took of renunciation to the German Reich before this Court on April 3, 1939, and his oath of allegiance to the United States of America, and that he took such oath honestly and without any mental reservations or purposes of evasion.
The Court has reviewed the testimony in this case and given the same very careful consideration, appreciating the value of citizenship, and that an order of this Court entered granting citizenship should not be lightly set aside, as the Court has heretofore stated; but in determining what was in an individual's mind at the time of taking the character of oath here in question it is only by acts and circumstances, statements and utterances, that the Court can arrive, as the Court must do in this case, as to what was in defendant's mind at the time he took the oath with reference to the declaration of intention and that of renunciation of allegiance to the German Reich and allegiance to the United States, the latter being taken on April 3, 1939, before this Court.
Based upon the testimony above recited and the oath as taken by the defendant upon the dates as stated, and especially with reference to April 3, 1939, the Court finds it to be shown by a preponderance of the evidence, the great preponderance of the evidence, that the defendant Dr. Wolfgang Ebell was in sympathy with and attached to the German Reich and to governmental doctrines of the German Government at that time, which were antagonistic, the Court finds as disclosed by the record in this cause, to the principles of the Constitution of the United States of America and democratic form of government such as prevails in the United States of America.
The Court therefore finds that the oaths so taken, as charged and alleged in plaintiff's First Amended Complaint, were not taken honestly; that they were in fraud of this Court, and that the defendant at that time was in sympathy with the government prevailing in Germany and the German Reich, and did not intend to support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic, and bear true faith and allegiance to the same, as in the oath of allegiance prescribed.
While the Court is not unmindful of decisions that have been rendered in certain cases, as relating to the facts in those respective cases, that declarations made by a party when the country of which he had been a citizen was not at war with the United States of America, were not to be given the effect and proof necessary to revoke or set aside, and cancellation of, a naturalization certificate; however these are matters that can be taken into consideration, should be taken into consideration by the Court, in the opinion of this Court, with statements that were made afterwards, and to follow along and cover the entire period, for purpose of determining what was in the mind of an individual on a particular date, certainly the date of declaration in this case and of the entry of the Court's order on April 3, 1939, and also subsequent matters, as it is only from the same that a determination can be reached as to what was in a party's mind. Each case, and especially a case of this character, is a case within itself, and which has to be ruled upon and controlled by the record made and the facts established upon a hearing of such case.
The Court, therefore, directs entry of an order herein revoking and cancelling the previous order of this Court, of date April 3, 1939, granting citizenship to the defendant Dr. Wolfgang Ebell.
The Court will ask that counsel for the Government submit to the Court draft of more specific and detailed special findings of fact and conclusions of law, as suggestive to the Court of the Findings of Fact and Conclusions of Law to be filed by the Court herein, in accordance with Rule 52 of the New Federal Rules, 28 U.S.C.A. following section 723c. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875543/ | 176 B.R. 781 (1993)
John F. ARENS
v.
Al BOUGHTON, Trustee, et al.
No. 93-0429.
United States District Court, W.D. Louisiana, Alexandria Division.
October 5, 1993.
*782 John F. Arens, Arens Law Firm, Fayetteville, AR, pro se.
E. Lamar Pettus, Fayetteville, AR, for appellant John F. Arens.
T. Brett Brunson, Luster Conine & Brunson, Natchitoches, LA, for appellee Al Boughton, Trustee.
Robert L. Royer, Alexandria, LA, for appellees John T. Batten, Jr., Daisy M. Prudhomme, and Kathleen Prudhomme Batten.
Kenneth David McCoy, Jr., McCoy Hawthorne & Roberts, Natchitoches, LA, for appellee Farm Credit Bank of Texas.
Fran H. Strange, U.S. Trustee's Office, Shreveport, LA, for appellees Victoria E. Young, U.S. Bankruptcy Trustee, and William E. O'Connor, Asst. U.S. Bankruptcy Trustee.
DECISION
LITTLE, District Judge.
John F. Arens appeals the judgment of the United States Bankruptcy Court ordering disgorgement of a $75,000 attorneys' fees retainer paid to Arens by the debtors, Daisy Prudhomme and Mr. and Mrs. John Batten. For the reasons that follow, this court affirms the bankruptcy court's directive.
I.
In February 1990, the Battens and Miss Prudhomme (collectively, the "debtors")[1] consulted Arens regarding their unsuccessful attempts to pursue Chapter 12 bankruptcies and restructure a debt owed to the Farm Credit Bank of Texas ("FCB"). Arens agreed to represent the debtors in their travails, for a fixed retainer of $75,000 and 40 per cent of any recovery on a potential lender liability claim. The debtors paid Arens *783 $50,000 on 26 February 1990 and $25,000 on 27 February 1991.
On 30 July 1991, attorneys employed by Arens[2] filed a Chapter 11 petition on behalf of Ms. Prudhomme and, on 15 October 1991, did likewise for the Battens. In seeking appointment as debtors' counsel before the Bankruptcy Court, these attorneys consistently stated that they represented no interest adverse to the debtors' estates and that they were "disinterested" within the meaning of the Bankruptcy Code. Statements of Financial Affairs filed in each bankruptcy disclosed the debtors' $25,000 payment to Arens, but did not disclose the earlier $50,000 payment. The contingency fee arrangement was described in the second amended disclosure statement in the Batten bankruptcy, but was never disclosed in connection with the Prudhomme bankruptcy.
This pattern of incomplete and dilatory disclosure was also played out in Arens' communications with the debtors. Arens made major decisions concerning the debtors' representation without their knowledge or consent. Meantime, Arens' bankruptcy attorneys permitted substantial rights of the debtors to lapse. In the end, Arens' representation of the debtors was completely ineffectual. The debtors' lender liability claim against FCB was ultimately dismissed, and Arens' attorneys withdrew their objections and permitted FCB to confirm a plan of reorganization for the debtors.
The question for decision is whether the Bankruptcy Court exceeded its authority in ordering disgorgement of the $75,000 retainer.
II.
A Chapter 11 bankruptcy debtor may not employ an attorney without prior approval of the Bankruptcy Court. 11 U.S.C. §§ 327(a), 1107(a) (1993). In applying for approval, debtors' proposed counsel must submit a verified statement setting forth his "connections with the debtor, creditors, or any other party in interest." Fed. R.Bankr.P. 2014. Local Bankruptcy Rule 4.0(9) mandates that in addition to this statement, debtors' proposed counsel file a "supplemental schedule" which lists all payments made by the debtor to counsel or counsel's law firm within 18 months prior to filing the bankruptcy petition. Debtor's counsel who has received payment for services rendered "in contemplation of or in connection with" bankruptcy must also file a statement of attorneys' fees with the Bankruptcy Court within 15 days after the order for relief is entered. 11 U.S.C. § 329(a); Fed. R.Bankr.P. 2016(b). This statement must disclose the source and amount of any payments the attorney received during the year prior to filing the bankruptcy petition.
The purpose of these rather onerous disclosure requirements is to facilitate the bankruptcy court's review of debtors' transactions with their attorneys, in recognition of "the temptation of a failing debtor to deal too liberally with his property in employing counsel to protect him." In re Wood & Henderson, 210 U.S. 246, 253, 28 S.Ct. 621, 624, 52 L.Ed. 1046 (1908); see also 2 Collier on Bankruptcy ¶ 329.01 (Lawrence P. King ed., 15th ed. 1992). It is the duty of debtor's counsel to aid this review by providing the bankruptcy court with all information necessary to make an adequate review of the relevant transactions. In re Futuronics Corp., 655 F.2d 463 (2d Cir.1981). Absent compliance with the Bankruptcy Code and Rules, an attorney has no absolute right to compensation. In re Anderson, 936 F.2d 199, 204 (5th Cir.1991).
In this case, the attorneys were particularly lax in complying with the disclosure rules. In seeking appointment as debtors' counsel, debtors' bankruptcy attorneys consistently maintained that they represented no interest adverse to the debtors' estates. They failed to disclose the contingency fee arrangementwhich could have led to their disqualification. See In re Pierce, 809 F.2d 1356, 1358-59 (8th Cir.1987). In connection with the Prudhomme bankruptcy, they simply *784 never filed a supplemental schedule pursuant to local rule 4.0 which would have disclosed the entirety of the retainer payments.
As a court of equity, a bankruptcy court has broad discretion in awarding or denying attorneys' fees. In re Lawler, 807 F.2d 1207, 1211 (5th Cir.1987). Failure to comply with disclosure rules has often warranted the denial of compensation to debtors' counsel. In re Anderson, 936 F.2d at 204; see also In re Arlan's Dep't Stores, Inc., 615 F.2d 925, 935 (2d Cir.1979). The bankruptcy court in the instant case found that the $75,000 retainer was paid to Arens in order to facilitate representation of the debtors in bankruptcy and that the reasonable value of Arens' legal services was zero. Applying the relevant standard of review, this court concludes that the bankruptcy court's findings were not clearly erroneous. See Carefree Ranch, Inc. v. Lenard (In re Lenard), 849 F.2d 974, 976-77 (5th Cir.1988); Fed. R.Bankr.P. 8013. Thus, the bankruptcy court did not abuse its discretion in ordering disgorgement of the attorneys' fees retainer. See In re Anderson, 936 F.2d at 204-05.
The judgment of the Bankruptcy Court is AFFIRMED.
NOTES
[1] Mrs. Batten and Miss Prudhomme are sisters. The Battens and Miss Prudhomme were partners in "Riverside Farms" and owned land mortgaged to the Farm Credit Bank of Texas.
[2] Arens was the sole proprietor of a professional corporation styled, at various times, "Arens & Alexander" and/or "The Arens Law Firm." At one time, Arens employed nearly 30 attorneys. The fact that these attorneys were Arens' employees, rather than his associates or partners, does not diminish the professional obligations they, individually, owed the debtors. Because Arens retained ultimate decision-making authority over the debtors' cases, however, he remained ultimately responsible for their legal representation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/128615/ | 538 U.S. 955
RAPOSOv.UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 02-9246.
Supreme Court of United States.
March 31, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
2
C. A. 2d Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1028847/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN FITZGERALD WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief
District Judge. (0:02-cr-00684-JFA-1; 0:07-cv-70008-JFA)
Submitted: April 21, 2009 Decided: May 11, 2009
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marvin Fitzgerald Walker, Appellant Pro Se. Leesa Washington,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Fitzgerald Walker seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2008) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Walker has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3444495/ | Reversing.
On the _____ day of April, 1922, Mrs. Ludie M. Larue executed a deed to Mrs. Lillie May Williams for 500 acres of land on Wolf Island in the Mississippi river. Later R.W. Gray as committee for Mrs. Larue, sued Lillie May Williams and her husband to set that deed aside on the grounds of mental incapacity of the vendor, and that its execution was procured by fraud and undue *Page 156
influence. The defendants employed J.D. Via to defend the suit, and executed the following written contract:
"This is to certify that I have this day employed J.D. Via to represent me in a lawsuit now pending in the Hickman circuit court wherein R.W. Gray, committee for Mrs. Ludah M. Larue, has sued Lillie May Williams to set aside a deed made to the said Lillie May Williams in said court. And I agree to pay the said J.D. Via, attorney, a fee equal to 33 1/3 per cent. of the amount saved me in said suit, valuing the land at $10,000. We agree to pay the said J.D. Via as soon as the said suit is finally settled, and we agree to pay him this fee whether this suit is tried out to a final judgment or whether the same be compromised. S.B. Williams, husband of the said Lillie May Williams joins in this contract. This April 13, 1923.
"Lillie May Williams.
"S.B. Williams."
Mr. Via accepted the employment and successfully represented his clients in the circuit court and the Court of Appeals. Subsequent to which he defended the title for them in another action and was successful. After defendants' title to the land was confirmed, and on the 25th day of March, 1926, Mrs. Williams and her husband duly executed and acknowledged a mortgage on this land to W.T. and W.S. Avey to secure an indebtedness due them for merchandise furnished them during a period of years, and evidenced by several notes aggregating approximately $3,000, and which was duly recorded on the 10th day of April, 1926. Following that on the 24th of November, 1926, Mrs. Williams and her husband executed a note to Via for $3,933, the aggregate amount due for his services in the two lawsuits and as security therefor, executed and acknowledged a mortgage on the same land, in which it was recited that this lien was to be superior to all other liens. This mortgage was also duly recorded. Subsequently Via brought suit on his note and to enforce this lien, and made the Aveys parties defendant. The Aveys answered and by cross-petition, sought personal judgment against the Williams, asserted a prior lien on the land, and sought its enforcement. In his reply, plaintiff alleged that, at the time of the execution of his contract of employment as attorney, Mr. and Mrs. Williams agreed verbally that, in the event of a successful *Page 157
defense of the suit against her, he should have a lien upon the land to secure the payment of his fee. He further alleged that at the time of his employment the Williams were insolvent; that his services were as beneficial to the Aveys as they were to the Williams family; that the Aveys knew of his agreement with them; that their subsequent conduct in procuring and recording the mortgage was a fraud upon his rights, and that they did not thereby acquire any priority over his mortgage. Proof was taken along the lines indicated. The circuit court gave personal judgment in favor of both Via and the Aveys. It further found that Mr. and Mrs Williams made a verbal agreement to give Via a prior mortgage on the land as claimed by him; that such agreement was enforceable as an equitable mortgage; that the Aveys had sufficient notice of this agreement to put them on inquiry; and that their conduct in procuring and recording a mortgage on these lands was fraudulent as to Via, and gave them no priority over his subsequently acquired mortgage. It was then adjudged that the land be sold and Via's debt be paid out of the proceeds of sale, and the remainder of the proceeds, if any, applied to the satisfaction of Avey's debt. The Aveys appeal.
The issues are short and simple. Via does not assert a lien by virtue of section 107 of the statute (Ky. St.), could not, as his employment, though successful, was to defend the title, not to recover the property. Irvine v. Stevenson, 183 Ky. 305,209 S.W. 7; Lytle v. Bach, 93 S.W. 608, 29 Ky. Law Rep. 424; Thompson v. Thompson, 65 S.W. 457, 23 Ky. Law Rep. 1535; Forrester v. Howard, 124 Ky. 215, 98 S.W. 984, 30 Ky. Law Rep. 375, 124 Am. St. Rep. 394.
2. We may assume that a valid provision to place a lien on the property to secure appellee's fee in the event of a successful termination of the lawsuit could have been placed in the written contract of employment signed by Mr. and Mrs. Williams, and under the evidence the Aveys had such information as would put them on inquiry to ascertain the terms of the contract. But, aside from the fact that, in the absence of an allegation of fraud or mistake, all parol agreements are merged in the writing, it is clear that a verbal agreement to create a lien upon real estate in possession of the promisor is within the statute of frauds and ineffective for any purpose. Lane v. Lloyd, 110 S.W. 401, 33 Ky. Law Rep. 570; Holcomb v. Alterus, 13 Ky. Law Rep. 971; *Page 158
19 Rawle C. L. p. 276; 25 Rawle C. L. p. 570; Newman v. Newman,103 Ohio 230, 133 N.E. 70, 18 A.L.R. 1090, and annotated notes 1098; Sleeth v. Sampson, 237 N.Y. 69, 142 N.E. 355, 30 A.L.R. 1400, and annotations on page 1403.
3. As no lien, equitable or otherwise, was acquired by virtue of the alleged parol agreement, the provision in the mortgage executed to Via that the lien therein created should be superior to all others could not affect Avey's prior recorded mortgage, section 497, Ky. Statutes; Asher v. Brock, 95 Ky. 270, 24 S.W. 1070, 15 Ky. Law Rep. 631; Stahl v. Lowe, 38 S.W. 862, 18 Ky. Law Rep. 946, 19 Ky. Law Rep. 210; Jones v. Allen, 88 Ky. 381, 11 S.W. 289, 10 Ky. Law Rep. 962; White v. O'Bannon, 86 Ky. 101, 5 S.W. 346, 9 Ky. Law Rep. 334. And, as the mortgage to Aveys is not attacked under the statute of 1856, section 1906, Ky. Statutes, it is not fraudulent as to creditors, although given for the purpose of preference. For the reasons indicated, the mortgage to the Aveys is entitled to priority over Via's mortgage in a distribution of the proceeds of sale, and the court erred in not so holding.
Wherefore the judgment is reversed, and cause remanded, for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444496/ | Reversing.
Dudley Trusty, Homer Trusty, Bessie Rowe, Gracie Rowe, and Riley Jordon were jointly indicted for the murder of Nealus Moore. Appellant, Dudley Trusty, was tried separately, convicted of voluntary manslaughter, and punished by confinement in the penitentiary for five years. On this appeal he relies upon one ground for reversal, which is that the evidence is insufficient to sustain the verdict.
The killing occurred on Sunday afternoon, July 23, 1928, on Hawes fork of Quicksand creek. During the day the appellant, his codefendants, Nealus Moore, and a number of other persons had traveled up and down the creek, stopped at a number of houses, drank liquor, played cards, and, at least on one occasion before Moore was killed, engaged in a difficulty, which resulted in a *Page 646
shooting affray in which no one was wounded. Appellant, however, was not present on that occasion. Homer Trusty, Lee Jordon, Bessie Rowe, Gracie Rowe, Jessie Rowe, Riley Jordon, Nealus Moore, Kearney Manns, and probably others were present when the difficulty arose in which Moore was killed. Homer Trusty and Lee Jordon were walking down Hawes fork, near the home of Les Pitts, and met Kearney Manns and Nealus Moore. The evidence does not disclose how the difficulty started, but it appears that Lee Jordon struck Nealus Moore on the head with a pistol. Both Moore and Manns fired at Jordon, and Jordon was killed. About the same time Homer Trusty shot Moore in the back. Gracie Rowe was shot through the arm, and Homer Trusty was wounded in the chest. None of the witnesses was able to state who fired the shots that wounded Homer Trusty and Gracie Rowe.
Homer Trusty left immediately after the shooting, going down Hawes fork. A short distance from the scene of the killing, but around the point of a hill, he met his brother, the appellant, Dudley Trusty, who was walking up Hawes fork carrying a shotgun. He told his brother what had occurred and that he was wounded. Dudley Trusty walked to where Moore and Jordon were lying and fired his gun in the ground. According to some of the witnesses who were present, he also picked up a rock, but did not offer to throw it. Moore died shortly after he arrived. He then assisted others present in carrying Moore's body into the Pitts home.
Earlier in the day he was at the home of his father-in-law, Nero Manns, with a number of others, when Nealus Moore arrived. There is no evidence that he and Moore had any trouble on that occasion. Later in the day appellant and one or two others were on the porch of the home of Asa Manns, when Nealus Moore, in an apparently intoxicated condition, came into Asa Manns' yard. He was riding a mule and fired his pistol a number of times into the ground. Appellant walked into the house, got his shotgun and said: "That d__ s__ of a b___ can't put nothin' over on me." However, he placed the shotgun against the wall, and did not offer to shoot Moore, who was still in the yard. Moore soon left and went up Hawes fork. Fifteen or 20 minutes later appellant took his shotgun and started up the creek. It was then that he met his brother, Homer Trusty, who told *Page 647
him that he had been wounded, and that Nealus Moore and Lee Jordon also had been shot.
Appellant was convicted under a conspiracy instruction. The only evidence relied upon by the commonwealth to show that he was a conspirator was the alleged threat made by him at the home of Asa Manns, and the fact that he arrived at the scene of the killing a few minutes after it occurred. Neither he nor his brother had had any difficulty with Moore before Moore stopped at the home of Asa Manns, and appellant did not see his brother, Homer Trusty, from that time until after the shooting occurred.
As said in Saylor v. Commonwealth, 158 Ky. 768,166 S.W. 254, 256: "The law in a criminal case requires that the guilt of the accused shall be established by the evidence to the exclusion of a reasonable doubt, and, where the evidence as a whole creates only a suspicion that the defendant might be guilty, there is nothing to submit to the jury." Here the evidence is not sufficient even to create a suspicion that appellant had conspired with any of his codefendants to kill the deceased. If this conviction could be upheld on the evidence adduced, then any other person who had been with Moore and Homer Trusty on that day, or who happened to appear at the scene of the killing a few minutes after it occurred, could likewise be convicted.
In Anderson v. Commonwealth, 196 Ky. 30, 244 S.W. 315, 317, in which the facts were even stronger as tending to show a conspiracy than in the instant case, the court said: "It is the duty of courts, when called upon to review the proceedings wherein the defendant was convicted to satisfy themselves that the testimony as a whole was reasonably calculated to produce more than a mere suspicion, and to possess at least some convincing weight. This is as true in conspiracy cases as in any others, and we find in the text of 12 C. J. 638, this statement: 'On the other hand, conspiracies cannot be established by a mere suspicion, nor does evidence of mere relationship between the parties or association show a conspiracy.' That rule was recognized by this court in the cases of Pace v. Commonwealth, 170 Ky. 560, 186 S.W. 142, and Lockard v. Commonwealth, 193 Ky. 619, 237 S.W. 26. In each of those cases the evidence supporting the alleged conspiracy was as strong as that shown by this record, with the exception, perhaps, of one fact which will be subsequently noticed. Indeed, in the Pace *Page 648
case the testimony, if anything, went farther towards establishing the conspiracy than is true in this case; yet in each of them we held that the evidence was insufficient, and that the testimony in support of the conspiracy charge did not authorize its submission to the jury."
A careful reading of the record convinces us that there was no evidence tending to connect the appellant with the crime for which he was tried, and that the court erred in not sustaining his motion for a directed verdict. Wherefore the judgment is reversed, with directions to grant appellant a new trial and for further proceedings consistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444497/ | Motion for appeal denied. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7433302/ | Habeas corpus denied without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3099735/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Edward Bernard Davenport v. The State of Texas
Appellate case number: 01-14-00275-CR
Trial court case number: 1213794
Trial court: 351st District Court of Harris County
Appellant’s counsel filed a motion to withdraw and brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), but did not state that he sent the record to
appellant. Pursuant to Kelly v. State, No. PD-0702-13, 2014 WL 2865901, at *4 (Tex.
Crim. App. June 25, 2014), we order the Clerk of this Court to mail the Clerk’s Record
and the Reporter’s Record in this appeal to appellant.
Further, we order the appellant to file his response to the Anders brief, if any,
within 30 days of the date of this order. Appellant is further notified that if he fails to
submit such a response within 30 days of this order, the Court will decide the motion to
withdraw without an Anders response.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
Date: August 7, 2014 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538775/ | 06/03/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 8, 2020
STATE OF TENNESSEE v. MONTERIO FUNZIE
Appeal from the Criminal Court for Shelby County
No. 15-01203 W. Mark Ward, Judge
___________________________________
No. W2018-02222-CCA-R3-CD
___________________________________
Defendant, Monterio Funzie, was indicted by the Shelby County Grand Jury for sexual
battery by an authority figure and sexual battery. According to the judgment, Defendant
pleaded guilty to sexual battery, and the remaining charge was dismissed on motion of
the State. Following a sentencing hearing, the trial court sentenced Defendant as a
multiple offender to three years to be served in a workhouse. On appeal, Defendant
contends that the trial court abused its discretion by denying his request for judicial
diversion and that his sentence is excessive. Following our review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.
J. Jeffrey Lee, Memphis, Tennessee, for the appellant, Monterio Funzie.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith and
Leslie Byrd, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Sentencing hearing
Defendant testified at the sentencing hearing. He acknowledged that he had
inappropriate sexual contact with the victim, who was his niece. Defendant testified, “I
didn’t understand that I was making someone uncomfortable by being close to them.” He
testified that he recognized he hurt the victim. Defendant testified that he had “learned a
lesson throughout this case,” and that he did not intend to “put anybody in a[n] awkward
position or make them feel uncomfortable.”
Defendant testified that he had served in the United States Navy for 14 years as a
culinary specialist, a/k/a a cook. He testified that he had been ineligible for promotions
as a result of the charges against him and that he would finish his contract and receive an
“other than honorable” discharge in 2020. Defendant testified that he became
“[m]entally distressed” during the pendency of his case and had gone “AWOL” from the
Navy. Specifically, Defendant did not report for work for 30 days. Defendant testified
that he was visiting family in Texas while he was stationed in Virginia. Two weeks prior
to the sentencing hearing, Defendant was found guilty of a violation of Article 85 of the
Uniform Code of Military Justice, and he was sentenced by his commanding officer for
desertion, which meant that he was not allowed to leave his ship for 45 days.
On cross-examination, Defendant testified that he did not know that “sitting next
to someone” would make that person feel uncomfortable. He acknowledged that he had
been accused of sitting beside his niece and asking, “are you going to let me [expletive]
you,” and then touching her vagina. Defendant denied that he touched the victim’s
vagina during the following exchange with the trial court:
THE COURT: Okay. I – I’m not – I’m a little unclear. You pled guilty
to sexual battery of this –
[Prosecutor]: I believe he plead [sic] guilty to sexual battery out of
range, for a sentence of three years, according to my file.
[Defense counsel]: That’s correct, Judge, count two.
[Prosecutor]: Count one was nol-prossed [sic] as part of the –
THE COURT: Who was it he battered? Who did you batter?
THE DEFENDANT: It was [my] niece, sir.
THE COURT: Your niece? One time or more than one time?
THE DEFENDANT: That was it, sir.
THE COURT: Okay. One – one – time incident?
-2-
[Defense counsel]: My understanding is this is one incident.
[Prosecutor]: I believe so, Judge.
THE COURT: Okay. And how old was your niece?
THE DEFENDANT: I’m not sure of the age, sir.
THE COURT: Well she’s your niece.
THE DEFENDANT: Yes.
THE COURT: What in – how did you batter her? How did you touch
her?
THE DEFENDANT: She said I – I touched her, sir.
THE COURT: Touch – where did you touch her at?
THE DEFENDANT: Privates, sir.
THE COURT: What private?
THE DEFENDANT: Vagina.
[Prosecutor]: She was 15 years old then.
THE COURT: And with – how did – what did you touch her with?
THE DEFENDANT: My hand, sir.
THE COURT: Okay. And I don’t understand, why would you touch a
15-year-old girl’s vagina with your hand?
THE DEFENDANT: Sir, I did not sir.
THE COURT: What do you mean?
THE DEFENDANT: I did not touch her.
THE COURT: Okay. Well you pled guilty to touching her.
-3-
THE DEFENDANT: Yes, sir, and I –
THE COURT: So I have to sentence you though as if you touched a 15-
year-old girl’s vagina. That’s – I’ve gotta – you pled guilty to it so I
can’t sentence you as though you didn’t do it.
The trial court asked defense counsel if he had any more witnesses to present, and
defense counsel answered that he did not. Defense counsel then informed the trial court
that “this was pled under no contest, and although [Defendant] doesn’t agree with the
accusations as they were made, he has accepted – [.]” The trial court stated:
THE COURT: ‘Cause I don’t take Alford versus North Carolina guilty
pleas when there’s no agreement as to punishment. ‘Cause I get into a
situation like this when the defendant gets up here and says, give me
probation because I really didn’t do it which kind of puts me in a[n]
untenable – I’ve gotta have a mini trial. But anyway, so it’s no contest
so it – it’s not Alford versus North Carolina, he just didn’t contest it.
Okay.
The trial court stated that it considered the evidence presented at the sentencing
hearing, including the presentence report, the principles of sentencing, the nature of the
criminal conduct involved, any applicable enhancement and mitigating factors, statistical
information from the Administrative Office of the Courts, Defendant’s statement, and the
risk assessment, which the trial court noted “showed [Defendant] as a low offender.” The
trial court found that Defendant was considered a favorable candidate for alternative
sentencing in the absence of evidence to the contrary and noted that the State had not
presented any evidence regarding the relationship between Defendant and the victim.
The court stated:
I think sexual battery by an authority figure is eligible for probation but
not diversion. I could deny judicial diversion based upon [ ] this really
having been an authority figure if I had evidence before me that he was
really an authority figure. But since I don’t have that evidence I can’t do
that.
The State announced that the victim wished to testify. The trial court questioned
the victim, asking “all I want to know is was [Defendant] lying to me just now? That’s
all I want to know. Was he lying?” The victim testified that “[i]t wasn’t just one time . . .
it was multiple times because he was there for a[ ]while.” The trial court asked the victim
how Defendant was related to her, and she testified that Defendant was her “dad’s
-4-
brother.” The prosecutor asked the victim what Defendant had done to her. The victim
testified that Defendant “had been drinking[,]” and he asked her, “can I ‘F’ you?” The
victim told Defendant, “no.” Defendant then asked the victim, “can I touch you?” The
victim again told Defendant, “no[,]” and Defendant “did it anyways and he started to kiss
[her] and put his hands inside [her] pants.”
The trial court then recalled Defendant, stating “Let’s put him back on. Come on
back, sir. You’re still under oath.” The trial court questioned Defendant, “I just want to
ask him one question. Is she lying through her teeth?” Defendant responded, “Sir, yes,
sir.”
The trial court continued its consideration of the relevant factors, finding that: 1)
regarding Defendant’s amenability to correction, “anybody could be corrected at some
point[;]” 2) the circumstances of the offense were “somewhat aggravated” because
Defendant was related to the victim; 3) Defendant’s criminal record was “not favorable”
because of a prior DUI conviction and Defendant’s military violation; 4) Defendant’s
social history was also not favorable due to his military record; 5) Defendant’s physical
and mental health were “okay[;]” 6) the deterrent effect was “neutral[;]” and 7) whether
judicial diversion would be in the interest of the public as well as Defendant was also
“neutral.”
The trial court concluded, “before I heard [testimony from the victim], I was
gonna deny him judicial diversion anyway, based upon these factors, primarily the
criminal record, the social history, and the seriousness of the offense.” The trial court
found that the victim’s testimony was credible and Defendant’s testimony was not.
Regarding alternative sentencing, the trial court also found that: 1) Defendant’s criminal
record was “not so bad in and of itself to deny an alternative sentence[;]” 2) the offense
was “extremely serious[,]” but Defendant was statutorily eligible for alternative
sentencing; and 3) there was no evidence that measures less restrictive than confinement
had been applied unsuccessfully to Defendant. The trial court denied alternative
sentencing.
Analysis
Defendant challenges the trial court’s denial of his request for judicial diversion.
Defendant argues that the trial court abused its discretion by basing its decision on
Defendant’s denial of wrongdoing, and that the trial court insisted that Defendant entered
a “guilty plea” rather than a “no contest” plea to the charge. The State asserts that the
trial court properly denied judicial diversion based on Defendant’s “untruthfulness and
lack of candor with the court.”
-5-
Pursuant to Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(a)-(e), a
defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
or nolo contendere to a Class C, D, or E felony; is not seeking deferral for an offense
committed by an elected official; is not seeking deferral for certain sexual offenses
(including sexual battery by an authority figure, but not sexual battery, the offense to
which Defendant pleaded no contest); has not been convicted of a felony or a Class A
misdemeanor previously and served a sentence of confinement; and has not been granted
judicial diversion or pretrial diversion previously. In determining whether to grant a
defendant judicial diversion, the trial court must consider all of the following factors: (1)
the defendant’s amenability to correction, (2) the circumstances of the offense, (3) the
defendant’s criminal record, (4) the defendant’s social history, (5) the status of the
defendant’s physical and mental health, (6) the deterrence value to the defendant and
others, and (7) whether judicial diversion will serve the interest of the public as well as
the defendant. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.
1998) (citing State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)).
The record must reflect that the trial court has taken all of the factors into
consideration, and “we may not revisit the issue if the record contains any substantial
evidence supporting the trial court’s decision.” Id. Furthermore, “[t]he court must
explain on the record why the defendant does not qualify under its analysis, and if the
court has based its determination on only some of the factors, it must explain why these
factors outweigh the others.” Id. When reviewing a trial court’s decision to grant or
deny judicial diversion, the standard of review is abuse of discretion with a presumption
of reasonableness. State v. King, 432 S.W.3d 316, 327 (Tenn. 2014). However, if the
trial court failed to weigh and consider the relevant factors, this court may conduct a de
novo review or remand the case for reconsideration. Id. at 328.
In denying judicial diversion, the trial court stated, “He’s pled guilty to this.
That’s sort of an objective thing. I have to sentence him as though he’s guilty of this. . . .”
Defendant argues that the trial court’s statements show that the court “rejected” his no
contest plea and “applied the wrong standard, i.e., a guilty plea.” Defendant further
argues that the trial court’s analysis was “hasty” and that it “failed to meaningfully weigh
the required factors in denying the diversion and instead relied on . . . [an] assessment of
who was telling the truth regarding the other’s testimony. We disagree.
A defendant is not required to admit guilt with respect to a crime in order to
qualify for diversion. Stanton v. State, 395 S.W.3d 676, 688 (Tenn. 2013). “[T]he failure
of the defendant to admit guilt is not, in and of itself, a proper basis for denying
diversion.” State v. Oakes, 269 S.W.3d 574, 578 (Tenn. Crim. App. 2006). “However,
there is a critical distinction between confessing guilt to a crime and accepting
responsibility for wrongful conduct. Admitting that one’s conduct complies with the
-6-
elements of a criminal offense and accepting responsibility for wrongful conduct are not
necessarily synonymous.” Stanton, 395 S.W.3d at 688-89. The failure to admit any
wrongdoing or accept any responsibility is a relevant consideration to the denial of
judicial diversion. State v. Henri Brooks, No. W2015-00933-CCA-R3-CD, 2017 WL
758519, at *9 (Tenn. Crim. App. Feb. 27, 2017), no perm. app. filed. A trial court may
consider a defendant’s denial of guilt in terms of his credibility, a factor properly
considered in a judicial diversion determination. See State v. Leroy Collins, No. W2016-
01685-CCA-R3-CD, 2018 WL 1640407, at *4 (Tenn. Crim. App. April 5, 2018), no
perm. app. filed (“The most determinative, controlling factor justifying affirmance of the
denial of judicial diversion is the finding by the trial court of Defendant’s lack of
credibility. . . .”).
The record in this case reflects that the trial court individually examined each of
the relevant factors in denying Defendant’s request for judicial diversion and stated its
reasons on the record. The trial court explained that although Defendant was eligible for
judicial diversion, certain factors weighed against Defendant, including his criminal
record and the circumstances of the offense. We conclude that there is substantial
evidence in the record to support the trial court’s denial of judicial diversion. Defendant
argues that although he denied that he touched the victim’s vagina, he admitted
wrongdoing by testifying “that he learned a lesson in this case, which is that he should
never put anybody in an awkward position or make them feel uncomfortable [sexually].”
However, the trial court accredited the victim’s testimony and explicitly found
Defendant’s testimony not credible. The trial court properly considered Defendant’s
denial of the alleged conduct as an indication of his lack of truthfulness or candor. The
record reflects no abuse of discretion. Defendant is not entitled to relief.
Finally, in a two-paragraph section of his argument, Defendant asserts that the trial
court’s denial of alternative sentencing was excessive. However, Defendant cites no
authority. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”). Defendant’s entire argument in support of the issue is that he was
“harshly sentenced with no regard for his military service, his lack of significant criminal
history, his juvenile record when he was nine and ten years old, and quite frankly,
because he would not plead guilty.”
A trial court should consider the following when determining any defendant’s
suitability for alternative sentencing:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
-7-
(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant[.]
T.C.A. § 40-35-103(1). A trial court should also consider a defendant’s potential or lack
of potential for rehabilitation when determining if an alternative sentence would be
appropriate. T.C.A. § 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim.
App. 1996).
The record reflects that the trial court thoroughly considered the factors relevant to
an alternative sentence determination, and the court concluded that Defendant’s
untruthfulness regarding the alleged conduct was a valid reason to deny an alternative
sentence. A defendant’s truthfulness can be probative on the issue of the defendant’s
potential for rehabilitation. See State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994); State v. Justin Daniel Adams, No. M2016-00835-CCA-R3-CD, 2017 WL 929414,
at *6 (Tenn. Crim. App. Mar. 8, 2017), no perm. app. filed. Moreover, a defendant’s lack
of candor militates against the grant of an alternative sentence. See, e.g., State v.
Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 2001). Additionally, we note that it
was undisputed that Defendant went AWOL from his naval station while the sexual
battery charges were pending in the trial court. This conduct also indicates a poor
potential for rehabilitation. The trial court’s decision to deny alternative sentencing was
supported by clearly articulated reasons, and Defendant has failed to prove that the court
abused its discretion. Defendant is not entitled to relief.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
____________________________________________
THOMAS T. WOODALL, JUDGE
-8- | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2768026/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 DAVUALE B. WILLIAMS
United States Army, Appellant
ARMY 20110227
Headquarters, 82d Airborne Division
Karin G. Tackaberry, Military Judge
Colonel Lorianne M. Campanella, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Major Richard E. Gorini, JA; Captain
James P. Curtin, JA (on brief).
For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Major Alison L. Gregoire, JA (on brief).
30 April 2013
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
HAIGHT, Judge:
A general court-martial composed of officer members convicted appellant in
absentia, contrary to his pleas, of one specification of aggravated sexual assault of a
child, two specifications of abusive sexual contact with a child, one specification of
indecent acts, and one specification of sodomy with a child, in violation of Articles
120(d), 120(i), 120(k), and 125, Uniform Code of Military Justice, 10 U.S.C.
§§ 920(d), 920(i), 920(k), 925 (2006 & Supp. III 2009) [hereinafter UCMJ],
respectively. The convening authority approved the adjudged sentence to a
dishonorable discharge, confinement for three years, and forfeiture of all pay and
allowances.
Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant argues, inter alia, that both of his convictions for abusive sexual contact
with a child are multiplicious and represent an unreasonable multiplication of
charges. The government concedes that these specifications must be set aside, but
WILLIAMS—ARMY 20110227
only on the basis that they are an unreasonable multiplication of charges. We agree
with the parties that both specifications must be set aside, but find that one
specification is multiplicious, while the other represents an unreasonable
multiplication of charges. 1
LAW AND DISCUSSION
Multiplicity
One of appellant’s abusive sexual contact convictions is predicated upon the
identical criminal act as his aggravated sexual assault conviction: penetrating the
victim’s vagina with his penis. “The Fifth Amendment protection against double
jeopardy provides that an accused cannot be convicted of both an offense and a
lesser-included offense. See Article 44(a), UCMJ, 10 U.S.C. § 844(a) (2000);
Blockburger v. United States, 284 U.S. 299 (1932); United States v. Teters, 37 M.J.
370 (C.M.A. 1993). Charges reflecting both an offense and a lesser-included
offense are impermissibly multiplicious.” United States v. Hudson, 59 M.J. 357, 358
(C.A.A.F. 2004), overruled on other grounds by United States v. Jones, 68 M.J. 465
(C.A.A.F. 2010). An offense is a lesser-included offense if its elements are the same
or a subset of the charged offense. Schmuck v. United States, 489 U.S. 705, 716
(1989); United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).
Specification 1 of Charge I alleges appellant:
did, at or near Fort Bragg, North Carolina, on or about 25
July 2010, engage in sexual acts, to wit: placing his penis
into the vagina of [JL], with [JL], who had attained the
age of 12 years, but had not attained the age of 16 years.
1
We reviewed appellant’s allegation that his post-trial matters asserted legal error
to which the staff judge advocate (SJA) was required to respond and find it lacks
merit. Assuming arguendo that the SJA’s addendum did not meet the minimal
response requirement of Rule for Courts-Martial 1106(d)(4), see United States v.
Catrett, 55 M.J. 400, 408 (C.A.A.F. 2001), we find any such error was not
prejudicial. We are “free to affirm when a defense allegation of legal error would
not foreseeably have led to a favorable recommendation by the [SJA] or to
corrective action by the convening authority.” United States v. Hill, 27 M.J. 293,
297 (C.M.A. 1988); United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996). Based
on the record before us, we find any legal errors raised in appellant’s post-trial
matters, although couched as clemency requests, lack merit and would not have
resulted in a favorable recommendation by the SJA or any corrective action by the
convening authority.
2
WILLIAMS—ARMY 20110227
Specification 3 of Charge I alleges appellant:
did, at or near Fort Bragg, North Carolina, on or about 25
July 2010, engage in sexual contacts, to wit: placing his
penis into the vagina of [JL], with [JL], a child under the
age of 16 years.
We have no trouble concluding that the charged abusive sexual contact with a
child in violation of Article 120(i), UCMJ (Specification 3 of Charge I), is a lesser-
included offense of the separately charged aggravated sexual assault of a child in
violation of Article 120(d), UCMJ (Specification 1 of Charge I). Abusive sexual
contact with a child, by its very language, is applicable when the misconduct falls
short of the greater crime of aggravated sexual assault of a child:
Any person subject to this chapter who engages in or causes
sexual contact with or by another person, if to do so would violate
subsection (d) (aggravated sexual assault of a child) had the
sexual contact been a sexual act, is guilty of abusive sexual
contact with a child . . . .
UCMJ art. 120(i). As defined by the statute, the lesser offense mirrors the elements
of the greater, but substitutes the less egregious sexual contact for a sexual act. 2
Here, the specifications allege the same factual conduct for both the sexual act and
the sexual contact, i.e., penile penetration of the victim’s vagina. Therefore, we
conclude the offenses charged in this case stand in the relationship of lesser and
greater. Accordingly, appellant’s conviction for the facially duplicative, lesser-
included offense is multiplicious and must be set aside.
Unreasonable Multiplication of Charges
Appellant’s second conviction for abusive sexual contact with a child is
predicated upon the same criminal act as his sodomy conviction: placing his penis
in the victim’s mouth. “What is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one person.” Rule for
Courts-Martial [hereinafter R.C.M.] 307(c)(4). We consider five factors to
determine whether charges have been unreasonably multiplied:
2
Not only does this statutory provision establish a relationship of necessary
inclusion, it also evidences a congressional intent that these offenses not be made
the basis for multiple convictions or punishments. See Teters, 37 M.J. at 373.
3
WILLIAMS—ARMY 20110227
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant's
criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase [the] appellant's punitive
exposure?;
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).
On balance, we find the Quiroz factors weigh in appellant’s favor. Appellant
raised this issue at trial, and in light of appellant’s objection, the military judge
treated the offenses as merged for sentencing. Although the military judge’s ruling
prevented appellant from being unfairly subjected to an increase in punishment,
appellant’s additional conviction ultimately exaggerates his criminality. Moreover,
the abusive sexual contact specification is not aimed at a distinct, criminal act. In
fact, as the government explained to the military judge at trial, the abusive-sexual-
contact specification is aimed at reaching the same conduct, in the alternative, as
that charged in the sodomy specification. Due to the government’s decision to plead
these offenses in the alternative, we do not find evidence of prosecutorial
overreaching or abuse. Nevertheless, we conclude, and the government concedes,
there was an unreasonable multiplication of charges in this case. See United States
v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (noting one or more factors may be
sufficiently compelling, without more, to warrant relief).
CONCLUSION
The finding of guilty of Specification 2 of Charge I is set aside. The finding
of guilty of Specification 3 of Charge I is set aside and that specification is
dismissed. The remaining findings are AFFIRMED. Reassessing the sentence on
the basis of the error noted, the entire record, and in accordance with the principles
of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit,
4
WILLIAMS—ARMY 20110227
63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion in Moffeit, the approved sentence is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored. See UCMJ
art. 75(a).
Senior Judge COOK and Judge GALLAGHER concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
5 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4238906/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 45400
In the Matter of the DOE CHILDREN, )
Children Under Eighteen (18) Years of )
Age. )
)
IDAHO DEPARTMENT OF HEALTH ) 2018 Unpublished Opinion No. 337
AND WELFARE, )
) Filed: January 24, 2018
Petitioner-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
JOHN DOE (2017-30), ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Third Judicial
District, State of Idaho, Canyon County. Hon. A. Lynne Krogh, Magistrate.
Judgment terminating parental rights, affirmed.
Jolene C. Maloney, Caldwell, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Teri A.Whilden, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
John Doe (2017-30) appeals from a judgment terminating his parental rights. For the
reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
John and Jane Doe were married and resided together with their five minor children. The
three eldest children were declared in imminent danger due to the unsanitary condition of their
home in 2007. The two youngest children had not been born at that time. The walkways and
1
floors in the home were covered with clothes, toys, trash and debris, and the kitchen surfaces
were covered with old food and dirty dishes. The children were placed in the custody of the
Idaho Department of Health and Welfare. A case plan was substantially completed and the 2007
case was closed. In 2010, the Department received referrals regarding concerns of neglect of the
children and the condition of the home. A safety assessor met several times with John to talk
about cleaning up the home and in-home services were provided to assist the family for about a
month. Law enforcement officers went to the home to do a welfare check and found the home to
be in an unsanitary condition that was hazardous to the children’s health and safety. The police
found the house filled with toys, trash, and other debris. There were various choking hazards,
the carpet was littered with wood chips, and dog feces were on the floor. The children were
removed from the home and placed into the custody of the Department. The magistrate
approved a case plan, the family received family preservation services, and the case plan was
substantially completed and closed.
In 2011, two of the children received behavioral and developmental services. Seventy
hours of services per week were approved, which included intensive behavioral intervention for
the children, developmental therapy for one child, and psychosocial rehabilitation services for
Jane. While providing service, the therapist found that two of the children were undisciplined
and had not been taught age-appropriate skills. According to the therapist, it was almost
impossible to move throughout the home because of the piles of clothes, toys, trash, and dog
feces. The therapist also noticed that the children’s mattresses were soaked with urine and had
no linens. The therapist observed mold around the sinks and toilets; no soap, toothpaste,
toothbrushes, or washcloths; and prescription medications, including psychotropic medications,
were left on the dining room table within reach of the children. The therapist was concerned
about the condition of the home and worked with John to address the issues.
Based on the therapist’s concerns regarding the condition of the home, she contacted the
Department. During a welfare check, officers found the home was in a similar condition as it
had been when the children had been removed previously. The home contained clothing, toys
and trash strewn about; dirty, stained carpets; dog feces; and the kitchen was covered with dirty
dishes and food containers. In the garage there was a freezer that had thawed and contained
rotting turkeys and a mass of maggots. As a result, the four eldest children were again removed
2
from the home and placed into the custody of the Department. After the children were removed
from the home, the youngest child was born. The newborn child was also placed into the
custody of the Department, but an extended home visit was authorized since the home did not
present the same hazards to a baby. A case plan was approved by the magistrate. The
Department later terminated the extended home visit for the baby due to safety concerns. In
2012, the magistrate approved a permanency plan with a goal of continued efforts of
reunification and an alternative goal of termination of parental rights and adoption. In 2013, the
magistrate approved an amended case plan. Later in 2013, the magistrate approved an amended
permanency plan, with the primary goal of termination of parental rights and adoption, with a
concurrent goal of reunification. The magistrate approved an extended home visit in 2014 and
closed the child protection proceeding because the parents completed much of the case plan.
In July 2015, law enforcement responded to concerns regarding the condition of the home
and found the home in a similar state as the other times the children had been removed. There
was no power or water in the home and the refrigerator had been zip-tied closed. In addition,
officers discovered piles of debris, animal feces on the floor, and dirty dishes containing rotting
food. The children were declared in imminent danger and placed in the custody of the
Department. In September 2015, the magistrate approved a case plan with the goal of
reunification. The case plan provided that John would obtain counseling services, develop an
appropriate parenting plan, have a clean home free of hazards to the children for 180 days,
maintain a legitimate and sufficient source of income, complete parenting education, and
complete an updated psychological assessment. The case plan stated that the Department could
request termination of John’s parental rights if the children were in foster care fifteen out of the
last twenty-two months and if John was not actively working his case plan.
In March 2017, the Department filed a petition to terminate John’s parental rights on the
grounds that John failed to comply with the case plan, neglected the children, and was unable to
discharge parental responsibilities. In September 2017, the magistrate terminated John’s parental
rights after finding clear and convincing evidence that he had neglected the children and
termination was in the best interests of the children. John appeals.
3
II.
STANDARD OF REVIEW
A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d
341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,
family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of
due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence. Id. Because a
fundamental liberty interest is at stake, the United States Supreme Court has determined that a
court may terminate a parent-child relationship only if that decision is supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In
re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at
652.
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally
understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600.
4
Idaho Code Section 16-2005 permits a party to petition the court for termination of the
parent-child relationship when it is in the child’s best interests and any one of the following five
factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between
the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities
for a prolonged period that will be injurious to the health, morals, or well-being of the child; or
(e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
III.
ANALYSIS
A. Neglect
John contends the magistrate abused its discretion when it found by clear and convincing
evidence that termination of parental rights was in the children’s best interests. The magistrate
found that John had neglected his children. Idaho Code Section 16-2002(3) defines “neglect” as
any conduct included in I.C. § 16-1602(31), as well as situations where the parent has failed to
comply with the court’s orders or the case plan in a Child Protection Act (CPA) case, and the
Department has had temporary or legal custody of the child for fifteen of the most recent
twenty-two months and reunification has not been accomplished by the last day of the fifteenth
month in which the child has been in the temporary or legal custody of the Department. Section
16-1602(31)(a) provides, in pertinent part, that a child is neglected when the child is without
proper parental care and control, or subsistence, medical or other care or control necessary for
his or her well-being because of the conduct or omission of his or her parents, guardian, or other
custodian or their neglect or refusal to provide them.
The magistrate found, and it is uncontested, that the children have been in the
Department’s custody since July 2015, long past the statutory goal of achieving reunification
within fifteen months. The children were in the custody of the Department until the judgment
terminating parental rights in September 2017.
John argues that he completed many of the case plan tasks that were given to him.
However, the magistrate found that John failed to complete the terms of his case plan despite
having the time to do so. The plan specifically required John to obtain counseling services and
5
to understand his children’s trauma and how the history of foster care had impacted them. The
case manager testified that John had not completed this task because he often made excuses for
the events that resulted in the children’s child protection history and did not take responsibility
for the continued removal from the home. John was also required to develop an appropriate
parenting plan and complete parenting education. By the time of termination, the case manager
testified that John still could not demonstrate an understanding of his children’s needs that was
appropriate to the children’s ages.
Notably, the case plan required John to have a clean home free of potential health hazards
to the children. The caseworker regularly reminded John of the need to get the home clean and
keep it clean for six months, and John repeatedly told the caseworker that the home was almost
ready. John contacted the case manager to say the home was ready for inspection about eighteen
months after the removal of the children, but the case manager found it was still not ready for the
children. The case manager testified that there was so much stuff stacked up in the home that it
was dangerous for young children and the home smelled of urine. The case manager continued
to find the house in unsanitary and unsafe conditions with each visit. Based on the testimony
given by the numerous care providers, the magistrate determined there was consistent and
overwhelming evidence that the unsanitary and unsafe conditions of John’s residences never
substantially improved. Thus, the magistrate’s finding that John failed to complete the case plan
was supported by clear and convincing evidence.
The magistrate found that John had neglected his children in that he had not provided the
parental care or control necessary for the children’s well-being and that this neglect frequently
recurred and persisted over a period of many years. The magistrate concluded that the neglect in
this case included the failure to maintain the home in a sanitary condition, failure to provide
normal parental supervision and guidance, failure to provide appropriate medical care or
providing inappropriate care, and slow progress toward reunification despite extensive services
provided to the family. The magistrate determined that the home was found in a toxic condition
on multiple occasions. The magistrate concluded that the children’s lack of age-appropriate
behaviors and skills was largely attributable to long-term lack of normal parental guidance and
supervision. Because there was clear and convincing evidence that John did not complete his
case plan, that the children were in foster care for twenty-six months preceding termination, and
6
that reunification was not accomplished, the magistrate did not err in finding that John neglected
the children as defined in I.C. § 16-2002(3).
B. Best Interests of the Children
John argues that the magistrate erred when it found that termination of parental rights was
in the best interests of the children. Once a statutory ground for termination has been
established, the trial court must next determine whether it is in the best interests of the child to
terminate the parent-child relationship. In re Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315
(1991). When determining whether termination is in the child’s best interests, the trial court may
consider the parent’s history with substance abuse, the stability and permanency of the home, the
unemployment of the parent, the financial contribution of the parent to the child’s care after the
child is placed in protective custody, the improvement of the child while in foster care, the
parent’s efforts to improve his or her situation, and the parent’s continuing problems with the
law. In re Doe, 159 Idaho 192, 198, 358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320
P.3d 1262, 1270 (2014). A finding that it is in the best interests of the child to terminate parental
rights must still be made upon objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d
400, 403-04 (Ct. App. 2012).
Specifically, John asserts that he had substantially complied with the case plan and
therefore had not neglected the children. However, as noted above, the magistrate found that
John had neglected the children by failing to provide the care or control necessary for the
children’s well-being and the neglect occurred frequently and persisted over a period of many
years despite access to extensive services. As described above, the neglect included the failure
to maintain the home in a sanitary condition, failure to provide normal parental supervision and
guidance to the children, failure to provide appropriate medical care, and slow progress towards
reunification. John failed, or was unable, to meet the basic needs of the children and the children
have suffered because of the neglect.
Conversely, the children flourished in foster care and bonded with their foster parents,
who provided for all of the children’s needs. Prior to removal, the children had frequent trips to
an urgent care provider. After months with the foster family, there were no more trips to urgent
care, the children did not have sleep disorders, and did not need inhalers. Prior to removal, the
baby had not been gaining weight but, after removal, gained appropriate weight. Since removal,
7
the children’s social skills and well-being has improved. The magistrate found, and the record
supports, that it is highly unlikely that John will provide the care necessary for the children’s
well-being on a consistent basis in the future and, if the children were to return to John’s
custody, another removal would occur and cause more trauma to the children. As it is not in the
best interests of the children to continue to be removed and then returned to the home, it is in the
best interests of the children that the parental rights are terminated.
John also asserts that, because some of the children expressed a desire to be returned to
John’s home, the magistrate erred in finding that termination was in the best interests of the
children. The magistrate acknowledged that some of the children wished to be reunited with
John, but preferred to stay together with their siblings if they were not reunited with John. The
magistrate found that the children were together with foster parents who provided the care
necessary for their well-being and had expressed a desire to adopt all five children. Thus, the
magistrate concluded it was in the best interests of the children to be with parents who were able
to adequately and appropriately take care of them and provide the care necessary for their
well-being. Accordingly, the magistrate did not err in determining that termination was in the
best interests of the children.
IV.
CONCLUSION
There was clear and convincing evidence that John neglected the children and that it was
in the best interests of the children for John’s parental rights to be terminated. Accordingly, the
magistrate’s judgment terminating John’s parental rights is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.
8 | 01-03-2023 | 01-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2762732/ | 2014 IL App (3d) 130255
Opinion filed December 18, 2014
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-13-0255
v. ) Circuit No. 11-CM-3893
)
BRUNO PRESA, )
) Honorable Carmen Goodman,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Holdridge and Wright concurred in the judgment and opinion.
OPINION
¶1 Defendant, Bruno Presa, was charged with one count of possession of syringes under
section 1 of the Hypodermic Syringes and Needles Act (Act) (720 ILCS 635/1 (West 2010)),
when he was found in possession of approximately 500 used and uncapped hypodermic syringes
in a cardboard box in his bedroom. Defendant was a card-holding member of the Chicago
Recovery Alliance (CRA), a "needle exchange" program that aims to slow the spread of human
immunodeficiency virus (HIV) among intravenous drug users. At a bench trial, defendant
argued that he met the statutory exemption for a person engaged in "scientific research," through
his participation in CRA's program. See 720 ILCS 635/1(a) (West 2010). The court found
defendant guilty. Defendant appeals, arguing the evidence was insufficient to prove him guilty
beyond a reasonable doubt. The State concedes, and we reverse.
¶2 FACTS
¶3 Defendant was charged by information with "Unlawful Possession of Hypodermic
Syringe or Needle" under section 1 of the Act (720 ILCS 635/1 (West 2010)). The charging
information alleged:
"[D]efendant, knowingly and unlawfully had in his possession an
instrument, namely a hypodermic syringe and needle, or any other
instrument so adapted for the use of controlled substances by
subcutaneous injection and the defendant was not in possession of
such aforementioned instrument by reason of or during the course of
his official duties, and the defendant was not in possession of such
aforementioned instrument acting under the direction of a medical
doctor, dentist or hospital supervisor ***."
Section 1 reads:
"(a) Except as provided in subsection (b), no person, not being ***
a person engaged in chemical, clinical, pharmaceutical or other
scientific research, shall have in his possession a hypodermic syringe,
hypodermic needle, or any instrument adapted for the use of controlled
substances or cannabis by subcutaneous injection.
(b) A person who is at least 18 years of age may purchase from a
pharmacy and have in his or her possession up to 20 hypodermic
2
syringes or needles." (Emphasis added.) 720 ILCS 635/1 (West
2010).
Section (b), along with the part of section (a) referencing it, was added by the legislature in 2003.
Pub. Act 93-392 (eff. July 25, 2003). The amendment was characterized as a public health
initiative, which, by "decriminaliz[ing] the possession of up to twenty sterile hypodermic needles
and syringes," aimed to reduce the transmission of HIV and other diseases by intravenous drug
users. 93d Ill. Gen. Assem., Senate Proceedings, March 24, 2003, at 78 (statements of Senator
Trotter).
¶4 Defendant bonded out of jail on a $100 personal recognizance bail bond. His bail bond
contract listed six conditions of bond, none of which mentioned drug screenings. Defendant
entered a plea of not guilty at his arraignment, explaining that he was a member of "the needle
exchange program."
¶5 At the first pretrial hearing, defendant appeared pro se. The court stated that "as a
condition of your bond, you were to be drug tested today." Defendant said he was unaware of
that requirement and had not yet been drug tested. Defendant requested that the court dismiss
the charge because "I have a card for legal possession of what I got arrested for." The court
stated, "That's probably a defense," but explained that defendant needed counsel and, first of all,
needed to be drug tested. The court appointed a public defender and ordered defendant
downstairs for a drug screening. The court explained, "I test everybody who has these type of
cases."
¶6 On March 14, 2013, the case proceeded to a bench trial. Pretrial, the State stipulated to
two defense exhibits. The first was a special order from the Chicago police department (CPD)
regarding CRA. The special order stated that CRA personnel and participants in the needle
3
exchange program met the statutory exemption for scientific research under section 1 of the Act.
The order directed CPD officers not to arrest CRA program participants for possession of
hypodermic syringes. The second exhibit was a special order from the Joliet police department,
directing its officers not to arrest participants of a similar needle exchange program for
possession of syringes.
¶7 The defense called Dan Bigg, director of CRA. Bigg explained that CRA is a 21-year-
old nonprofit organization that aims to study and reduce the spread of HIV and hepatitis B and C.
When participants interact with CRA to receive services, CRA asks them questions that are
recorded and used for research purposes. Its members are given coded identification cards;
cardholder names are not collected or stored by CRA. Bigg testified that defendant had a valid
CRA card and was considered a current participant in CRA's research program.
¶8 Gregg Scott testified that he is an associate professor of sociology at DePaul University
who studies HIV and drug use. The data collected through CRA's questioning of participants is
stored and analyzed at DePaul's science research center. On cross-examination, Scott stated that
participants may take as many clean needles as they want, and there is no requirement that they
must exchange dirty needles to receive clean ones. According to Scott, "putting limitations on
the number of syringes actually contributes to the flourishing of HIV."
¶9 The court ultimately determined that defendant's CRA participant card did not in itself
establish that defendant was a person engaged in scientific research under the Act. The court
found defendant guilty.
¶ 10 The court asked whether the parties were ready to proceed to sentencing. Defense
counsel requested a continuance to gather and prepare mitigating evidence. The court denied
that request: "Okay. Well, this is a 2011 case. I will give you five minutes." The court
4
sentenced defendant to 90 days in jail, 24 months' conditional discharge, and fines and costs of
$200. Defendant appeals.
¶ 11 ANALYSIS
¶ 12 On appeal, defendant, again, argues that because of his participation in CRA's program,
he met the statutory exemption for a person engaged in scientific research. The State concedes
that defendant's conviction must be reversed.
¶ 13 Under the statute, anyone 18 years of age or older may possess up to 20 needles. To
legally possess more than 20 needles, the person or entity must meet one of the exemptions listed
in subsection (a). In the present case, defendant claimed he met the exemption for "a person
engaged in *** scientific research." 720 ILCS 635/1(a) (West 2010). The State conceded—and
the evidence overwhelmingly established—that CRA was an entity engaged in scientific
research. The legislature decided that it was sound public policy to allow the possession of up to
20 syringes for anyone and more than 20 syringes for those engaged in scientific research. It is
not the role of the courts to question that policy decision.
¶ 14 Clinical scientific research, by definition, requires not only scientific researchers, but also
participants or patients. Dan Bigg, the director of CRA, testified that defendant possessed a valid
CRA card; Bigg considered defendant a current participant in CRA's research program. On
appeal, the State concedes that defendant was, for purposes of the Act, engaged in scientific
research. No reasonable trier of fact could have found defendant guilty based upon the evidence
presented at trial. The State confesses error. We reverse defendant's conviction.
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, the judgment of the circuit court of Will County is reversed.
¶ 17 Reversed.
5 | 01-03-2023 | 12-18-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2762743/ | Filed 12/18/14 P. v. Ramirez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040086
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. CC629060, CC962424)
v.
JOSE ANGELESPARZA RAMIREZ,
Defendant and Appellant.
Defendant Jose AngelEsparza Ramirez appeals from a judgment following his
no-contest plea to one count of violating Penal Code section 288, subdivision (a) (lewd
1
act on a child under 14) and one count of violating section 288, subdivision (b)(1)
(forcible lewd act on a child under 14). On appeal, defendant asserts sentencing error in
two orders: that he have no contact with the victim and that he not reside in a home with
children under 18 except for his own children. We find defendant’s contentions to be
meritorious and will therefore modify the judgment.
Background
When defendant was charged in this case he was on three years’ formal probation
for committing a lewd act on a child under 14, to which he had pleaded no contest in
January 2007 (case No. CC629060). In October 2009 the court revoked probation in that
matter when the charges were filed in the present case, No. CC962424, involving a
1
All further statutory references are to the Penal Code.
different victim, S. Defendant was charged by amended information in case
No. CC962424 with one count of violating section 288, subdivision (b)(1), one count of
violating section 288, subdivision (a), and two counts of violating section 288.7,
subdivision (b) (sexual penetration of a child under 10). The information further referred
to case No. CC629060 in alleging a prior strike conviction within the meaning of
section 667, subdivisions (b)-(i) and section 1170.12.
On June 12, 2013, in accordance with a negotiated disposition, defendant admitted
having violated probation in case No. CC629060, pleaded no contest to the first two
counts charged in case No. CC962424, and admitted the strike allegation. On August 16,
2013, the trial reinstated and then terminated probation in case No. CC629060. As to
case No. CC962424, the court denied defendant’s motion to dismiss the strike (People v.
Superior Court (Romero) (1996) 13 Cal. 4th 497), sentenced defendant to 20 years in
prison on counts one and two, and dismissed the third and fourth counts of sexual
penetration. Defendant filed a timely notice of appeal and obtained a certificate of
probable cause.
Discussion
After imposing the 20-year sentence, the court made several orders which included
the following: (1) “the defendant shall have no contact with the victim [S.] or her
family”; and (2) “the defendant shall not reside in a home with children under the age of
18 years . . . ‘with the exception of his own children.’ ” Defendant contends that both of
these conditions were improper. We agree.
When a defendant is placed on probation for any registrable sex offense,
section 1203.1, subdivision (i)(2), authorizes the court to order the defendant to “have no
contact with the victim in person, by telephone or electronic means, or by mail.” But as
this court emphasized in People v. Scott (2012) 203 Cal. App. 4th 1303, 1325, “that statute
applies only where a defendant is placed upon probation.” Here defendant was sentenced
2
to prison. No other statutes authorize an order prohibiting all contact in these procedural
circumstances.
The People appropriately concede that the no-contact order here was
2
unauthorized. The order instead should have been made pursuant to section 1202.05.
That provision applies when the defendant is sentenced to prison for a specified sex
offense against a child under the age of 18 years. In those cases “the court shall prohibit
all visitation between the defendant and the child victim.” (§ 1202.05, subd. (a), italics
3
added.) And because the legislative restriction was intended to apply to child victims, the
order cannot extend past the victim’s 18th birthday. (See People v. Scott, supra, 203
Cal.App.4th at p. 1317 [“child victim” means “one who is a child at the time of a
contemplated visit”].)
The People suggest a modification of the no-contact order to prohibit only
visitation while S. is a minor, and defendant does not object to this proposed disposition.
The People do not give way, however, in their response to defendant’s second contention,
directed at the prohibition against residing with children other than defendant’s own. As
defendant points out, the court is not authorized to set conditions of parole, which the
order effectively did, by imposing restrictions on defendant after completion of his prison
term. That function is reserved for the Department of Corrections and Rehabilitation and
the Board of Parole Hearings (Board). (See Cal. Code Regs., tit. 15, § 2000,
subd. (b)(10); § 3000, subd. (b)(7), (8); Terhune v. Superior Court (1998) 65 Cal. App. 4th
864, 874 [“expansive authority” in former Board of Prison Terms to “impose any parole
2
Because the sentencing order was unauthorized, defendant’s challenge may be made
for the first time on appeal. (People v. Dotson (1997) 16 Cal. 4th 547, 554, fn. 6.)
3
This statute provides: “Whenever a person is sentenced to the state prison on or after
January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or
289, and the victim of one or more of those offenses is a child under the age of 18 years,
the court shall prohibit all visitation between the defendant and the child victim.”
3
conditions it deems proper,” but conditions must be reasonable]; accord, In re E.J. (2010)
47 Cal. 4th 1258, 1283, fn. 10; see also In re Prather (2010) 50 Cal. 4th 238, 255 [court
may not intrude on Board’s statutory authority to make decisions on parole matters].)
The People do not dispute this point; instead, they contend that defendant invited
the error in the residence condition hearing by proposing the exception for living with his
4
own children.
The People’s attempt to save the condition cannot succeed by resorting to the
doctrine of invited error. “[T]he imposition of a sentence for which there is no statutory
authority is jurisdictional error [citation]; hence if such an error comes to our attention in
a case pending before us, it is subject to correction.” (People v. Davis (1981) 29 Cal. 3d
814, 827; In re Harris (1993) 5 Cal. 4th 813, 842 [court may correct unauthorized
sentence “ ‘whenever the error comes to the attention of the court’ ”].) In these instances
“[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear
and correctable’ independent of any factual issues presented by the record at sentencing.
[Citation.]” (People v. Scott (1994) 9 Cal. 4th 331, 354; People v. Smith (2001) 24 Cal. 4th
849, 852.)
This principle withstands not only assertions of forfeiture for failure to object but
also claims of invited error. (In re Andrews (1976) 18 Cal. 3d 208, 212 [doctrine of
invited error does not apply to unauthorized sentences, which are void and may be
challenged at any time]; In re Birdwell (1996) 50 Cal. App. 4th 926, 931 [noting
4
After the court announced the condition that defendant “not reside in a home with
children under the age of 18 years,” a discussion was held off the record. Upon
returning, the court announced that it agreed with a suggestion made by defense counsel
“that we add, quote, ‘with the exception of his own children,’ which I think is appropriate
and that will be the court’s order.”
4
Andrews].) Accordingly, even if we were to conclude that the defense invited the error in
5
imposing this post-release condition, the error is correctable on appeal.
Disposition
The judgment is modified in the following respects: (1) The no-contact order is
amended to prohibit visitation with S. while she is under the age of 18 years; and (2) the
restriction on residing with children under the age of 18 years is stricken. The trial court
shall prepare an amended abstract of judgment and forward a certified copy of the
abstract to the Department of Corrections and Rehabilitation. As so modified, the
judgment is affirmed.
5
We do not accept this premise in any event. There is no indication on the record that
the defense’s suggested modification of the condition was a deliberate tactical one that
misled the court and thereby induced the error. (See, e.g., People v. Coffman (2004) 34
Cal. 4th 1, 49 [invited error applicable only if it is clear that counsel intentionally caused
the trial court to err, for tactical reasons rather than out of ignorance or mistake].)
Instead, it is apparent that the court erred in following the recommendation of the
probation officer that conditions applicable upon his release be imposed at sentencing.
5
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J. | 01-03-2023 | 12-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2987265/ | Motion Granted; Dismissed and Memorandum Opinion filed April 4, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00194-CV
DREAMA PENNINGTON, Appellant
V.
DOW CORNING CORPORATION, CHRIS ROBINSON MD, JAMES R.
CULLINGTON MD, FRANCIS BURTON MD, SIMON FREDERICKS MD,
TOLBERT WILKINSON MD, 21 INTERNATIONAL HOLDINGS FKA
KNOLL INTERNATIONAL, MILTON ROWLEY MD, WESLEY
WASHBURN MD, PRESTON CHANDLER MD, WILSHIRE FOAM
PRODUCTS INC., ERNEST CRONIN MD, JAMES PETERSON MD,
FRANK J. GEROW MD, BAXTER HEALTHCARE CORPORATION,
GENERAL ELECTRIC COMPANY, DOW CHEMICAL COMPANY,
Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 1992-25394EC
MEMORANDUM OPINION
This is an appeal from an order signed January 29, 2013. On March 26,
2013, appellant filed an unopposed motion to dismiss the appeal. See Tex. R. App.
P. 42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Christopher, Jamison, and McCally.
2 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4238907/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 45399
In the Matter of the DOE CHILDREN, )
Children Under Eighteen (18) Years of )
Age. )
)
IDAHO DEPARTMENT OF HEALTH ) 2018 Unpublished Opinion No. 336
AND WELFARE, )
) Filed: January 24, 2018
Petitioner-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
JANE DOE (2017-29), ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Third Judicial
District, State of Idaho, Canyon County. Hon. A. Lynne Krogh, Magistrate.
Judgment terminating parental rights, affirmed.
Lary G. Sisson, Caldwell, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Teri A.Whilden, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Jane Doe (2017-29) appeals from a judgment terminating her parental rights. For the
reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Jane and John Doe were married and resided together with their five minor children. The
three eldest children were declared in imminent danger due to the unsanitary condition of their
home in 2007. The two youngest children had not been born at that time. The walkways and
1
floors in the home were covered with clothes, toys, trash and debris, and the kitchen surfaces
were covered with old food and dirty dishes. The children were placed in the custody of the
Idaho Department of Health and Welfare. A case plan was substantially completed and the 2007
case was closed. In 2010, the Department received referrals regarding concerns of neglect of the
children and the condition of the home. A safety assessor met several times with Jane to talk
about cleaning up the home and in-home services were provided to assist the family for about a
month. Law enforcement officers went to the home to do a welfare check and found the home to
be in an unsanitary condition that was hazardous to the children’s health and safety. The police
found the house filled with toys, trash, and other debris. There were various choking hazards,
the carpet was littered with wood chips, and dog feces were on the floor. The children were
removed from the home and placed into the custody of the Department. The magistrate
approved a case plan, the family received family preservation services, and the case plan was
substantially completed and closed.
In 2011, Jane Doe accessed behavioral and developmental services for two of the
children. Seventy hours of services per week were approved, which included intensive
behavioral intervention for the children, developmental therapy for one child, and psychosocial
rehabilitation services for Jane. While providing service, the therapist found that two of the
children were undisciplined and had not been taught age-appropriate skills. According to the
therapist, it was almost impossible to move throughout the home because of the piles of clothes,
toys, trash, and dog feces. The therapist also noticed that the children’s mattresses were soaked
with urine and had no linens. The therapist observed mold around the sinks and toilets; no soap,
toothpaste, toothbrushes, or washcloths; and prescription medications, including psychotropic
medications, were left on the dining room table within reach of the children. The therapist was
concerned about the condition of the home and worked with Jane to address the issues.
Based on the therapist’s concerns regarding the condition of the home, she contacted the
Department. During a welfare check, officers found the home was in a similar condition as it
had been when the children had been removed previously. The home contained clothing, toys
and trash strewn about; dirty, stained carpets; dog feces; and the kitchen was covered with dirty
dishes and food containers. In the garage there was a freezer that had thawed and contained
rotting turkeys and a mass of maggots. As a result, the four eldest children were again removed
2
from the home and placed into the custody of the Department. After the children were removed
from the home, the youngest child was born. The newborn child was also placed into the
custody of the Department, but an extended home visit was authorized since the home did not
present the same hazards to a baby. A case plan was approved by the magistrate. The
Department later terminated the extended home visit for the baby due to safety concerns. In
2012, the magistrate approved a permanency plan with a goal of continued efforts of
reunification and an alternative goal of termination of parental rights and adoption. In 2013, the
magistrate approved an amended case plan. Later in 2013, the magistrate approved an amended
permanency plan, with the primary goal of termination of parental rights and adoption, with a
concurrent goal of reunification. The magistrate approved an extended home visit in 2014 and
closed the child protection proceeding because the parents completed much of the case plan.
In July 2015, law enforcement responded to concerns regarding the condition of the home
and found the home in a similar state as the other times the children had been removed. There
was no power or water in the home and the refrigerator had been zip-tied closed. In addition,
officers discovered piles of debris, animal feces on the floor, and dirty dishes containing rotting
food. The children were declared in imminent danger and placed in the custody of the
Department. In September 2015, the magistrate approved a case plan with the goal of
reunification. The case plan provided that Jane would obtain counseling services, develop an
appropriate parenting plan, have a clean home free of hazards to the children for 180 days,
maintain a legitimate and sufficient source of income, complete parenting education, and
complete an updated psychological assessment. The case plan stated that the Department could
request termination of Jane’s parental rights if the children were in foster care fifteen out of the
last twenty-two months and if Jane was not actively working her case plan.
In March 2017, the Department filed a petition to terminate Jane’s parental rights on the
grounds that Jane failed to comply with the case plan, neglected the children, and was unable to
discharge parental responsibilities. In September 2017, the magistrate terminated Jane’s parental
rights after finding clear and convincing evidence that she had neglected the children and
termination was in the best interests of the children. Jane appeals.
3
II.
STANDARD OF REVIEW
A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d
341, 343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible,
family life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of
due process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho
383, 386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a
parent-child relationship be proved by clear and convincing evidence. Id. Because a
fundamental liberty interest is at stake, the United States Supreme Court has determined that a
court may terminate a parent-child relationship only if that decision is supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In
re Doe, 146 Idaho 759, 761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at
652.
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable
inferences in support of the trial court’s judgment when reviewing an order that parental rights
be terminated. Id. The Idaho Supreme Court has also said that the substantial evidence test
requires a greater quantum of evidence in cases where the trial court’s finding must be supported
by clear and convincing evidence than in cases where a mere preponderance is required. Doe v.
Doe, 143 Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally
understood to be evidence indicating that the thing to be proved is highly probable or reasonably
certain. In re Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s
decision must be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d
at 600.
4
Idaho Code Section 16-2005 permits a party to petition the court for termination of the
parent-child relationship when it is in the child’s best interest and any one of the following five
factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between
the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities
for a prolonged period that will be injurious to the health, morals, or well-being of the child; or
(e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at
1117.
III.
ANALYSIS
A. Neglect and Best Interests of the Children
1. Neglect
Jane contends the magistrate abused its discretion when it found by clear and convincing
evidence that termination of parental rights was in the children’s best interests. The magistrate
found that Jane had neglected her children. Idaho Code Section 16-2002(3) defines “neglect” as
any conduct included in I.C. § 16-1602(31), as well as situations where the parent has failed to
comply with the court’s orders or the case plan in a Child Protection Act (CPA) case, and the
Department has had temporary or legal custody of the child for fifteen of the most recent
twenty-two months and reunification has not been accomplished by the last day of the fifteenth
month in which the child has been in the temporary or legal custody of the Department. Section
16-1602(31)(a) provides, in pertinent part, that a child is neglected when the child is without
proper parental care and control, or subsistence, medical or other care or control necessary for
his or her well-being because of the conduct or omission of his or her parents, guardian, or other
custodian or their neglect or refusal to provide them.
The magistrate found, and it is uncontested, that the children have been in the
Department’s custody since July 2015, long past the statutory goal of achieving reunification
within fifteen months. The children were in the custody of the Department until the judgment
terminating parental rights in September 2017.
Jane argues that she completed many of the case plan tasks that were given to her.
However, the magistrate found that Jane failed to complete the terms of her case plan despite
5
having the time to do so. The plan specifically required Jane to obtain counseling services and to
understand her children’s trauma and how the history of foster care had impacted them. The
case manager testified that Jane had not completed this task because she often made excuses for
the events that resulted in the children’s child protection history and did not take responsibility
for the continued removal from the home. Jane was also required to develop an appropriate
parenting plan and complete parenting education. By the time of termination, the case manager
testified that Jane still could not demonstrate an understanding of her children’s needs that was
appropriate to the children’s ages.
Notably, the case plan required Jane to have a clean home free of potential health hazards
to the children. The caseworker regularly reminded Jane of the need to get the home clean and
keep it clean for six months, and Jane repeatedly told the caseworker that the home was almost
ready. Jane contacted the case manager to say the home was ready for inspection about eighteen
months after the removal of the children, but the case manager found it was still not ready for the
children. The case manager testified that there was so much stuff stacked up in the home that it
was dangerous for young children and the home smelled of urine. The case manager continued
to find the house in unsanitary and unsafe conditions with each visit. Based on the testimony
given by the numerous care providers, the magistrate determined there was consistent and
overwhelming evidence that the unsanitary and unsafe conditions of Jane’s residences never
substantially improved. Thus, the magistrate’s finding that Jane failed to complete the case plan
was supported by clear and convincing evidence.
The magistrate found that Jane had neglected her children in that she had not provided
the parental care or control necessary for the children’s well-being and that this neglect
frequently recurred and persisted over a period of many years. The magistrate concluded that the
neglect in this case included the failure to maintain the home in a sanitary condition, failure to
provide normal parental supervision and guidance, failure to provide appropriate medical care or
providing inappropriate care, and slow progress toward reunification despite extensive services
provided to the family. The magistrate determined that the home was found in a toxic condition
on multiple occasions. The magistrate concluded that the children’s lack of age-appropriate
behaviors and skills was largely attributable to long-term lack of normal parental guidance and
supervision. Because there was clear and convincing evidence that Jane did not complete her
6
case plan, that the children were in foster care for twenty-six months preceding termination, and
that reunification was not accomplished, the magistrate did not err in finding that Jane neglected
the children as defined in I.C. § 16-2002(3).
2. Best interests of the children
Jane argues that the magistrate erred when it found that termination of parental rights was
in the best interests of the children. Once a statutory ground for termination has been
established, the trial court must next determine whether it is in the best interests of the child to
terminate the parent-child relationship. In re Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315
(1991). When determining whether termination is in the child’s best interests, the trial court may
consider the parent’s history with substance abuse, the stability and permanency of the home, the
unemployment of the parent, the financial contribution of the parent to the child’s care after the
child is placed in protective custody, the improvement of the child while in foster care, the
parent’s efforts to improve his or her situation, and the parent’s continuing problems with the
law. In re Doe, 159 Idaho 192, 198, 358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320
P.3d 1262, 1270 (2014). A finding that it is in the best interests of the child to terminate parental
rights must still be made upon objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d
400, 403-04 (Ct. App. 2012).
Specifically, Jane asserts that her inadequacies and completion of the case plan could
have been satisfied by additional access to other programs. However, as noted above, the
magistrate found that Jane had neglected the children by failing to provide the care or control
necessary for the children’s well-being and the neglect occurred frequently and persisted over a
period of many years despite access to extensive services. As described above, the neglect
included the failure to maintain the home in a sanitary condition, failure to provide normal
parental supervision and guidance to the children, failure to provide appropriate medical care,
and slow progress towards reunification. Jane failed, or was unable, to meet the basic needs of
the children and the children have suffered because of the neglect.
Conversely, the children flourished in foster care and bonded with their foster parents,
who provided for all of the children’s needs. Prior to removal, the children had frequent trips to
an urgent care provider. After months with the foster family, there were no more trips to urgent
care, the children did not have sleep disorders, and did not need inhalers. Prior to removal, the
7
baby had not been gaining weight but, after removal, gained appropriate weight. Since removal,
the children’s social skills and well-being has improved. The magistrate found, and the record
supports, that it is highly unlikely that Jane will provide the care necessary for the children’s
well-being on a consistent basis in the future and, if the children were to return to Jane’s custody,
another removal would occur and cause more trauma to the children. As it is not in the best
interests of the children to continue to be removed and then returned to the home, it is in the best
interests of the children that the parental rights are terminated.
Jane also asserts that, because some of the children expressed a desire to be returned to
Jane’s home, the magistrate erred in finding that termination was in the best interests of the
children. The magistrate acknowledged that some of the children wished to be reunited with
Jane, but preferred to stay together with their siblings if they were not reunited with Jane. The
magistrate found that the children were together with foster parents who provided the care
necessary for their well-being and had expressed a desire to adopt all five children. Thus, the
magistrate concluded it was in the best interests of the children to be with parents who were able
to adequately and appropriately take care of them and provide the care necessary for their
well-being. Accordingly, the magistrate did not err in determining that termination was in the
best interests of the children.
B. Reunification
Jane argues that the Department failed to make reasonable efforts toward reunification
because it did not further extend visits with the children to see if remedial efforts would be
successful. Jane also contends that the case manager failed to meet the Department’s obligations
under the case plan. Specifically, Jane argues the case manager failed to monitor the cleanliness
of the home, the Department did not offer home visits as an incentive to keep the home clean,
and the Department did not make reasonable efforts to review Jane’s progress in meeting the
case plan. The CPA contemplates that the Department will make reasonable reunification efforts
during the CPA proceedings. In re Doe (2013-29), 156 Idaho 682, 688 n.3, 330 P.3d 1040, 1046
n.3 (2014). However, whether the Department has made reasonable efforts at reunification is not
part of the magistrate’s analysis when terminating parental rights on the grounds of neglect. Id.
Issues regarding the Department’s alleged substandard efforts of reunification should be
addressed during the CPA proceedings by motion or argument prior to the filing of the
8
termination petition. Id. There is no indication that Jane raised the issue of the Department’s
alleged failure to provide reasonable reunification efforts below to the magistrate during the CPA
proceedings. Accordingly, this Court will not consider it now on appeal.
C. Reasonable Accommodations under the Americans with Disabilities Act
Jane contends that the Department deprived her of her rights under the Americans with
Disabilities Act (ADA) and under I.C. § 16-1621(3)(c) by failing to provide reasonable
accommodations in an attempt to reunify her with her children. Jane did not raise the argument
that the Department deprived her of her rights under the ADA below to the magistrate.
Generally, issues not raised below may not be considered for the first time on appeal. Sanchez v.
Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Because Jane failed to properly
preserve this argument by raising it below, this Court will not consider it now on appeal.
Idaho Code Section 16-1621(3)(c), part of the CPA, focuses on the need for a
reunification plan, visitation, and the tasks necessary for reunification. As noted in Part B in
regard to reunification efforts, the alleged failure of the Department to provide reasonable
accommodations under this part of the CPA must be raised before the magistrate during the CPA
proceedings and not for the first time during termination proceedings. Because there is no
indication that Jane raised this issue during the CPA proceedings, this Court will not consider
this issue now on appeal.
IV.
CONCLUSION
There was clear and convincing evidence that Jane neglected the children and that it was
in the best interests of the children for Jane’s parental rights to be terminated. Because Jane did
not assert below that the Department failed to provide reasonable reunification efforts, the issue
is not reviewable on appeal. Similarly, Jane failed to preserve her arguments that the
Department deprived her of her rights under the ADA and I.C. § 16-1621(3)(c) and they will not
be considered now on appeal. Accordingly, the magistrate’s judgment terminating Jane’s
parental rights is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.
9 | 01-03-2023 | 01-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4238908/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44291
SILAS BENJAMIN PARKS, ) 2018 Unpublished Opinion No. 332
)
Petitioner-Appellant, ) Filed: January 23, 2018
)
v. ) Karel A. Lehrman, Clerk
)
STATE OF IDAHO, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Respondent. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Latah County. Hon. Jeff M. Brudie, District Judge.
Order denying petition for post-conviction relief, affirmed.
Whitney & Whitney, LLP; Thomas W. Whitney, Moscow, for appellant. Thomas
W. Whitney argued.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent. Mark W. Olson argued.
________________________________________________
GRATTON, Chief Judge
Silas Benjamin Parks appeals from the district court’s order denying his petition for post-
conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of June 24, 2009, firefighters responded to reports of a fire at Parks’
residence. After extinguishing the flames, firefighters recovered the badly burned body of Parks’
pregnant wife, Sarah, from a bedroom within the residence. State forensic pathologist
Dr. Jeffrey Reynolds performed an autopsy on the body and concluded that Sarah’s cause of
death was “[p]robable suffocation or strangulation,” that she had died before her body was
burned, and that she was approximately twenty weeks pregnant at the time of her death. The
Fire Marshal’s investigation into the cause of the fire determined that the fire was caused by the
1
introduction of an open flame to available fuels and/or to introduced fuels 1 and had been started
at or near the foot of the bed where Sarah’s body was discovered.
The State charged Parks with two counts of first degree murder, Idaho Code §§ 18-
4001, 18-4003, and one count of first degree arson, I.C. § 18-802. Two attorneys were appointed
to represent Parks, who pled not guilty to the charges. After mediation, the State offered to
amend the two murder charges to two counts of voluntary manslaughter, I.C. §§ 18-4006(1), 18-
4007, if Parks would agree to plead guilty. Without first retaining a forensic pathologist to
investigate Dr. Reynolds’ conclusions in the State autopsy report, trial counsel advised Parks to
accept the plea offer from the State. Consequently, Parks entered into a plea agreement with the
State. The district court accepted Parks’ guilty pleas and imposed concurrent fifteen-year
determinate sentences for the two voluntary manslaughter charges, and a consecutive twenty-
five-year sentence with five years determinate for the arson charge. The court subsequently
denied Parks’ motion for a reduction of his sentence pursuant to Idaho Criminal Rule 35. Parks
did not appeal from the judgment of conviction.
In 2011, Parks filed a petition for post-conviction relief alleging his trial counsel were
ineffective and that his conviction should be vacated pursuant to I.C. § 19-4901(a)(4). The State
moved for summary dismissal of Parks’ post-conviction petition. With respect to the issues
relevant to this appeal, the district court denied the motion and conducted an evidentiary hearing.
Multiple people testified at the hearing including: (1) Dr. Arden, a forensic pathologist retained
by Parks to review the State’s coroner and autopsy reports; (2) a federal ATF agent who had
investigated the fire; (3) a criminal defense attorney retained by the State as an expert witness;
(4) Parks; and, (5) Parks’ two trial attorneys. After the hearing, the district court concluded that
Parks failed to demonstrate that his trial counsel’s performance was deficient and denied Parks’
petition. Parks timely appeals.
1
“Introduced fuel” means any combustible item brought to the scene of the fire, like an
accelerant, an ignitable liquid, cloth, or paper. “Available fuel” means any combustible item
already at the scene of the fire prior to its ignition.
2
II.
ANALYSIS
Parks asserts that the district court erred in denying his petition for post-conviction relief
after an evidentiary hearing. 2
A. Standard of Review
In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678. Here, Parks does not assert that the district court’s factual
findings are erroneous, so our review is limited to the district court’s application of the relevant
law to the facts.
B. Ineffective Assistance of Counsel
Parks asserts that he was deprived of his constitutional right to the effective assistance of
counsel based on trial counsel’s failure to adequately prepare for trial and investigate his case. A
claim of ineffective assistance of counsel may properly be brought under the Uniform Post-
Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App.
2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the
attorney’s performance was deficient and that the petitioner was prejudiced by the deficiency.
2
The State argues that Parks has failed to assign any specific error to the district court’s
conclusions. We note that the State is technically correct about assignments of error; appellate
courts will not review actions of the district court for which no error has been assigned and will
not otherwise search the record for unspecified errors. State v. Hoisington, 104 Idaho 153, 159,
657 P.2d 17, 23 (1983). Although Parks never explicitly stated in his briefs that the district
court erred, we need not address the issue of assignments of error because the substantive issues
are dispositive.
3
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181
P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of
showing that the attorney’s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon
a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not have pled guilty and would have
insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel
will not be second-guessed on appeal unless those decisions are based on inadequate preparation,
ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v.
State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
1. Deficient performance
Parks argues that trial counsel’s performance was deficient because counsel advised him
to accept the State’s plea offer without first retaining a forensic pathologist to investigate the
conclusions in the State’s autopsy report. According to Parks, his trial counsel’s failure to hire
an expert in forensic pathology before advising Parks to plead guilty gave Parks only one source
of expert testimony--the prosecution’s--on the issue of the cause of Parks’ wife’s death, and thus
falls below the duty to conduct a reasonable investigation.
The State asserts that Parks failed to demonstrate error by the district court and failed to
show that his trial counsel provided deficient performance by advising Parks to plead guilty
before retaining a forensic pathologist to challenge the State’s autopsy conclusions.
The district court concluded that Parks failed to meet his burden of showing that trial
counsel were deficient. The court determined that trial counsel’s advice was not given due to
lack of investigation or preparation on the part of counsel, but concluded instead that Parks’
counsel investigated the case, prepared a defense, and ultimately advised Parks to accept the plea
deal which significantly reduced his potential prison sentence because both attorneys saw the
plea deal as the best realistic outcome for their client. We agree.
Determining whether an attorney’s pretrial preparation falls below a level of reasonable
performance constitutes a question of law, but is essentially premised upon the circumstances
surrounding the attorney’s investigation. Thomas v. State, 145 Idaho 765, 769, 185 P.3d 921,
4
925 (Ct. App. 2008). To prevail on a claim that counsel’s performance was deficient, a
petitioner must establish that the inadequacies complained of would have made a difference in
the outcome of trial. Id. It is not sufficient merely to allege that counsel may have discovered a
weakness in the State’s case. Id. We will not second-guess trial counsel in the particularities of
trial preparation. Id.
Here, the circumstances surrounding the attorneys’ investigation reveal that counsel’s
pretrial preparation did not fall below a level of reasonable performance. The State had strong
evidence of Parks’ guilt that made counsel’s advice to accept the State’s plea offer objectively
reasonable. Parks told authorities that he had woken up at 6:45 a.m., checked on his wife, and
then left at about 7:20 a.m. to drive to a fitness facility to workout. However, it only takes
approximately three and one-half minutes to drive from the Parks’ residence to the fitness
facility, and authorities were able to confirm that Parks swiped his membership card at the
facility’s card access point at 7:39 a.m. on the morning of the fire. Additionally, the Fire
Marshal’s investigation concluded that the fire started between approximately 7:33 a.m. and
7:38 a.m., just ten to fifteen minutes before it was initially observed and reported by a witness
and just a few minutes before Parks swiped his access card at the gym. The investigation further
concluded that the fire was not started by accident, but by the introduction of an open flame to
available fuels and/or to introduced fuels. Furthermore, the State pathologist concluded the
cause of death was probable suffocation or strangulation because Sarah suffered respiratory
arrest prior to cardiac arrest, and the pathologist discovered no evidence of infection, no
mechanical trauma, and no evidence of soot or thermal damage in the respiratory tract. So, in
preparation for trial, counsel hired an investigator, consulted a fire expert, and were in the early
stages of employing a pathologist who would have testified for Parks if the case had gone to
trial. 3 Significantly, counsel conducted all of this preparation despite the fact that Parks had told
them prior to mediation that he could recall his hands around Sarah’s throat and despite the fact
3
Parks’ attorneys spoke with Thomas M. Donndelinger, M.D. Dr. Donndelinger informed
counsel that he no longer testified at trials. Because Parks needed a pathologist who would be
willing to testify at trial, counsel did not further pursue Dr. Donndelinger as a potential witness.
Consequently, counsel consulted with Todd C. Grey, M.D., the Chief Medical Examiner for the
state of Utah. Counsel discussed the basic facts of Parks’ case with Dr. Grey and inquired as to
whether he would be willing to review materials related to Mr. Parks’ criminal case, including
the autopsy report completed by Dr. Jeffrey Reynolds, and to testify at trial, if needed. Dr. Grey
indicated that he would be willing to review the materials and testify at trial.
5
that Parks specifically asked trial counsel not to pursue a defense theory based on evidence of an
alternate perpetrator. Parks’ counsel perceived these statements to mean that Parks was
reluctantly communicating that he did, in fact, kill Sarah Parks. Given the circumstances
surrounding the attorneys’ investigation, counsel’s pretrial preparation did not fall below a level
of reasonable performance.
Moreover, the district court concluded that Parks had merely alleged that counsel may
have discovered a weakness in the State’s case. Parks supported his ineffective assistance of
counsel claim with an affidavit and report prepared by Dr. Jonathan L. Arden, a consulting
practice based in northern Virginia, after Dr. Arden had reviewed the State pathologist’s report.
Dr. Arden also testified at the hearing on Parks’ petition for post-conviction relief. The district
court concluded that Dr. Arden’s findings did not directly contradict the State pathologist’s
findings. Like the State’s pathologist, Dr. Arden concluded that Sarah was dead before the fire
started but that asthma was not the cause of death. The court also noted that although Dr. Arden
took issue with the pathologist’s ultimate conclusion that Sarah’s death resulted from “probable”
suffocation or strangulation, Dr. Arden ultimately opined that “in the absence of another obvious
type of trauma to explain her death (e.g., a gunshot wound), it is reasonable to consider some
form of asphyxiation as having caused her death.” There is a fine distinction between the State
pathologist’s conclusion that Sarah’s cause of death was “probable” suffocation or strangulation
and Dr. Arden’s conclusion that it was reasonable to consider some form of asphyxiation as
having caused Sarah’s death. Nevertheless, Dr. Arden failed to propose an alternative cause of
Sarah’s death. Therefore, Parks failed to establish that the inadequacies he has complained of
would have made a difference in the outcome of the proceeding.
Finally, the facts create a tight timeline that supports the State’s theory of the case that
Parks killed his wife, started a fire at or near the foot of the bed where Sarah’s body was
recovered, and then left the residence and traveled to the fitness facility. Indeed, the post-death
arson of the apartment alone was powerful and persuasive circumstantial evidence of Parks
having engaged in conduct which caused the death of Sarah Parks and the unborn child.
Consequently, counsel believed that Parks would have been convicted of first degree murder if
he went to trial. Counsel testified that the best foreseeable outcome at trial would be a finding of
guilt for voluntary manslaughter instead of murder. Therefore, when the State ultimately agreed
to reduce the charges from murder to voluntary manslaughter, thus reducing Parks’ potential
6
sentence from a period of life to a period of twenty to forty years, counsel recognized the State’s
plea offer as the best possible outcome in the case and reasonably advised Parks to accept it. 4
In light of the State’s strong evidence of Parks’ guilt, the district court’s conclusion that
Dr. Arden’s report does not directly contradict the State pathologist’s findings, and counsel’s
pretrial preparation despite Parks’ own admissions to counsel, Parks has failed to establish that
trial counsel’s pretrial preparation fell below an objective standard of reasonable performance.
Accordingly, Parks has failed to establish that trial counsel’s performance was deficient under
Strickland.
2. Prejudice
The district court declined to address whether Parks was prejudiced because the court
rested its decision to deny Parks’ petition on his failure to demonstrate that trial counsel’s
performance was deficient. Nevertheless, we address the issue here.
Parks argues that he was prejudiced because he would not have agreed to plead guilty had
he known that a forensic investigation by his appointed counsel would have revealed facts and
conclusions such as those explained by Dr. Arden.
The State argues Parks failed to demonstrate that he was prejudiced by any alleged
deficiency in his trial counsel’s performance. We agree.
4
Addressing the issue of counsel’s advice prior to a defendant’s decision to plead guilty,
the United States Supreme Court, has stated:
[T]he decision to plead guilty before the evidence is in frequently involves the
making of difficult judgments. All the pertinent facts normally cannot be known
unless witnesses are examined and cross-examined in court. Even then the truth
will often be in dispute. In the face of unavoidable uncertainty, the defendant and
his counsel must make their best judgment as to the weight of the State’s case.
Counsel must predict how the facts, as he understands them, would be viewed by
a court. If proved, would those facts convince a judge or jury of the defendant’s
guilt? . . . Questions like these cannot be answered with certitude; yet a decision
to plead guilty must necessarily rest upon counsel’s answers, uncertain as they
may be. Waiving trial entails the inherent risk that the good-faith evaluations of a
reasonably competent attorney will turn out to be mistaken either as to the facts or
as to what a court’s judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all
advice offered by the defendant’s lawyer withstand retrospective examination in a
post-conviction hearing.
McMann v. Richardson, 397 U.S. 759, 769-70 (1970); see also Dunlap v. State, 141 Idaho 50,
60-61, 106 P.3d 376, 386-87 (2004).
7
Even if we were to hold that counsel’s advice to plead guilty before employing a forensic
pathologist to investigate the conclusions in the State’s autopsy report constituted deficient
performance, Parks has failed to demonstrate that he was prejudiced by the deficiency. Where
the alleged Strickland prejudice stems from claims that trial counsel performed an inadequate
investigation prior to the entry of a defendant’s guilty plea, the United States Supreme Court
explained, “[T]he [petitioner] 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.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Parks asserts that he would not have pleaded guilty but
for counsel’s alleged errors. However, that does not end the inquiry. The Court continued:
[W]here the alleged error of counsel is a failure to investigate or discover
potentially exculpatory evidence, the determination whether the error
“prejudiced” the defendant by causing him to plead guilty rather than go to trial
will depend on the likelihood that discovery of evidence would have led counsel
to change his recommendation as to the plea. This assessment, in turn, will
depend in large part on a prediction whether the evidence likely would have
changed the outcome of a trial.
Lockhart, 474 U.S. at 59. After reviewing Dr. Arden’s report and conclusions, counsel still
would not have changed the recommendation as to the plea. As discussed above, when trial
counsel advised Parks to accept the State’s plea offer, counsel were of the opinion that the best
scenario at trial would have been a finding of guilt for voluntary manslaughter instead of
murder. 5 One of Parks’ two trial attorneys testified at the hearing that he had since reviewed
Dr. Arden’s report, but that it would not have changed the attorney’s advice to Parks regarding
the plea deal because the report did not refute the fact that Sarah was dead before Parks started
the fire. Counsel were both unequivocally clear that they would not have changed their
recommendation to accept the plea deal even if they had conclusions about the autopsy report
like those in Dr. Arden’s report before mediation. Accordingly, Parks has failed to demonstrate
that he was prejudiced by the alleged deficiency.
5
It is clear from the record that counsel met with Parks on numerous occasions prior to
mediation to discuss the various degrees of murder, manslaughter, and arson, as well as to
explain the maximum penalties and potential outcomes at trial. Furthermore, Parks testified at
the hearing that he understood the maximum sentence for first degree murder was a life sentence
and the maximum sentence for voluntary manslaughter was fifteen years.
8
In sum, Parks’ right to the effective assistance of counsel was not violated when trial
counsel advised him to accept the State’s plea offer without first retaining a forensic pathologist
to investigate the State autopsy conclusions.
C. Idaho Code § 19-4901(a)(4)
Parks also asserts evidence of material facts, not previously presented and heard, require
vacation of his conviction in the interest of justice pursuant to I.C. § 19-4901(a)(4). 6 Parks
argues Dr. Arden’s findings and conclusions, trial counsel’s failure to investigate, the unusual
pressures placed on Parks by counsel, and the district court’s failure to require a factual
admission from him at the change of plea hearing are material facts not previously presented and
heard. According to Parks, allowing his conviction to stand in light of these material facts not
previously presented and heard will substantially increase the probability of wrongly
incarcerating innocent people in future cases because two safeguards will be weakened: (1) the
lawyer’s duty to provide effective representation in accordance with Sixth Amendment
standards, and (2) the district courts’ obligation to ensure that a factual basis for guilty pleas in
felony cases exists.
The State argues that Parks failed to preserve this claim in the expanded manner in which
he now raises it on appeal, that the district court did not analyze or rule on this claim, and that
Parks’ claim that he is entitled to relief under I.C. § 19-4901(a)(4) has failed on its merits. We
agree.
Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Appellate court review is limited
to the evidence, theories, and arguments that were presented below. State v. Johnson, 148 Idaho
664, 670, 227 P.3d 918, 924 (2010). Below, Parks made bare and conclusory allegations that he
was entitled to relief pursuant to I.C. § 19-4901(a)(4). First in his memorandum in support of the
amended petition for post-conviction relief and then in his written closing argument, he wrote:
6
Idaho Code § 19-4901(a)(4) states:
Any person who has been convicted of, or sentenced for, a crime and who
claims: . . . (4) That there exists evidence of material facts not previously
presented and heard, that requires vacation of the conviction or sentence in the
interest of justice . . . may institute, without paying a filing fee, a proceeding
under this act to secure relief.
9
The newly presented material facts, not previously presented and heard,
require vacatur of the convictions and/or sentences in the interest of justice
pursuant to I.C. § 19-4901(a)(4).
Although the above analysis [in regards to the ineffective assistance of
counsel claims] is sufficient to resolve this matter in favor of Mr. Parks on
constitutional grounds rooted in the Sixth Amendment right to counsel, the
reasoning set forth above applies with equal force in the context of Idaho
Code § 19-4901(a)(4), and the entirety of the above analysis is incorporated
herein.
Parks did not provide any additional analysis or argument with respect to this claim. On appeal,
Parks has expanded this argument beyond the scope of what he presented to the district court.
Thus, Parks waived this argument because he had failed to present it to the district court.
Moreover, it is well settled that in order for an issue to be raised on appeal, the record
must reveal an adverse ruling that forms the basis for assignment of error. State v. Huntsman,
146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008); State v. Amerson, 129 Idaho 395, 401,
925 P.2d 399, 405 (Ct. App. 1996). Parks did not request a specific ruling from the court on this
issue, and the court did not enter a specific ruling on this issue. Accordingly, there is no adverse
ruling to form the basis for an assignment of error.
Finally, this claim fails on appeal because the district court’s ruling on the ineffective
assistance of counsel claim, which we affirm, negates any argument that would have been
advanced under I.C. § 19-4901. The State correctly argued below that “if the [district court]
finds that Mr. Parks’ trial counsel made a reasonable decision that made further investigation
into the cause of Sarah Parks’ death unnecessary, then the [I.C. § 19-4901(a)(4)] ‘issue’ is
moot.” Despite the fact that the district court did not analyze this claim as a distinct ground for
relief, the court implicitly disposed of the I.C. § 19-4901(a)(4) issue by concluding that Parks’
trial attorneys’ performance was not deficient. Because Parks’ trial attorneys did not render
ineffective assistance of counsel, there is no new evidence of material facts that require vacation
of the conviction or sentence. For these reasons, Parks’ claim that he is entitled to relief in the
interest of justice under I.C. § 19-4901(a)(4) fails.
10
III.
CONCLUSION
Parks’ trial counsel did not render ineffective assistance of counsel, and Parks did not
preserve his I.C. § 19-4901(a)(4) claim for appeal. Therefore, we affirm the district court’s order
denying Parks’ petition for post-conviction relief.
Judge GUTIERREZ and Judge Pro Tem WALTERS CONCUR.
11 | 01-03-2023 | 01-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/128640/ | 538 U.S. 957
VALDERRAMAv.CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL.,
No. 02-6950.
Supreme Court of United States.
March 31, 2003.
1
Petitions for rehearing denied. 537 U. S. 1092. | 01-03-2023 | 04-28-2010 |
Subsets and Splits