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987 A.2d 811 (2009) COM. v. CONWAY. No. 836 MDA 2008. Superior Court of Pennsylvania. October 23, 2009. Affirmed.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/515104/

862 F.2d 316 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Jake E. CANTRELL, Defendant-Appellant. No. 88-5003. United States Court of Appeals, Sixth Circuit. Nov. 15, 1988. Before BOYCE F. MARTIN, Jr. and DAVID A. NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge. PER CURIAM. 1 This is an appeal from a conviction for willful misapplication of bank funds. Finding that the trial court did not err in allowing the case to go to the jury, and that reversal is not required for any of the other reasons advanced by the appellant, we shall affirm the conviction. 2 * 18 U.S.C. Sec. 656 reads in part as follows: 3 "Whoever, being an officer, director, agent or employee of, or connected in any capacity with any ... insured bank ... willfully misapplies any of the moneys, funds, ... assets or securities intrusted to the custody or care of such bank ... shall be fined not more than $5,000 or imprisoned not more than five years, or both...." 4 The defendant in this case, Jake Cantrell, was involved in the establishment and operation of three banks in Tennessee and Georgia: The Dayton Bank and Trust Company of Dayton, Tennessee; the Farmers Bank and Trust Company in Winchester, Tennessee (through its holding company, Farmbanc); the Bank of Cumming, in Cumming, Georgia. According to S.R. "Russ" McGee, a business associate, Cantrell wanted to buy more stock in Farmbanc, but was limited by Tennessee's chain banking laws in the amount of stock he could hold. Cantrell therefore asked McGee to take out a loan from Dayton Bank & Trust Company and buy the stock for him. Cantrell undertook to give McGee a note to cover McGee's indebtedness. 5 The President of Dayton Bank & Trust Company, J. Walter Spiva, testified at trial that although he did not know how much Dayton Bank stock Cantrell controlled, Cantrell and the bank "pretty much were identified synonymously." From the time Spiva began working for Dayton Bank & Trust, he said, Cantrell "had been pretty much the head of the bank, the ultimate authority." 6 One day in January of 1983 Cantrell called Spiva and told him that Russ McGee's income was going to be increased by $100,000. (McGee had earned about $60,000 in 1982.) Cantrell said, according to Spiva, that McGee was looking for a place to invest his extra money and had decided to purchase shares in Farmbanc. Because of the advent of bank deregulation in Tennessee, it was believed that this stock would appreciate in value. Cantrell told Spiva that he had committed the bank to lend McGee $412,000 to buy the stock, and Spiva was instructed to do the necessary paperwork. Cantrell also told Spiva that although the financial statement on file for McGee could not support a loan of that size, a new financial statement, reflecting a larger income, would be forthcoming. 7 Although he had some doubts about the loan, Spiva followed Cantrell's instructions and advanced McGee the money under a loan agreement dated January 23, 1983. Spiva testified that the board of directors of the Dayton Bank was never informed that Cantrell had any financial interest in the loan. Shortly after the loan was made, the Bank of Cumming assumed 90 percent of it through a $372,000 "participation." 8 Upon receiving the loan proceeds, McGee testified, he handed the money over to Cantrell, his "agent." Cantrell gave McGee a $412,000 note to cover the contingency of the bank's calling the loan. 9 Cantrell used the $412,000 to purchase 10,000 shares of Farmbanc stock in McGee's name. In March of 1983 McGee signed an agreement giving Cantrell an option to buy the stock at the original purchase price. (Cantrell never exercised this option.) In due course, Cantrell supplied McGee with funds to make the first loan payment, which was due in July of 1983, and to make a second loan payment in January of 1984. 10 McGee decided in 1984 to take a new job with an insurance company. He observed at this time that the Farmbanc stock was not performing as well as anticipated, and he asked Cantrell to pay off the loan. According to McGee's testimony, Cantrell did so. 11 Meanwhile, a bank examiner discovered the existence of the loan during an examination of the Bank of Cumming. The discovery led ultimately to Cantrell's being indicted and tried for violating 18 U.S.C. Sec. 656 and 18 U.S.C. Sec. 2. The indictment charged that Cantrell, 12 "Being in fact an officer of Dayton Bank and Trust Company, Dayton, Tennessee, and connected to said bank in his capacity as a de facto officer of said bank and a shareholder of Rhea Bancshares, Inc., the holding company of said bank, the deposits of which bank were then insured by the Federal Deposit Insurance Corporation, with intent to injure and defraud said bank, did willfully and knowingly misapply and cause to be misapplied monies of the said bank in the amount of $412,000 in that he, Jake E. Cantrell, caused Walter Spiva, an officer of Dayton Bank and Trust Company to make [a] Dayton Bank and Trust Company bank loan in the amount of $412,000 in the name of S.R. McGee, Jr., of which he, Jake E. Cantrell, was the true and undisclosed beneficiary." 13 The jury returned a verdict of guilty, and Cantrell was sentenced to five years imprisonment and a fine of $5,000, the maximum penalty provided for in the statute. II 14 The first issue presented is whether Cantrell could properly be found to have had enough of a connection with the Dayton Bank to be covered under 18 U.S.C. Sec. 656. Simply being a bank depositor is not enough. See Logsdon v. United States, 253 F.2d 12 (6th Cir.1958). It is clear from the transcript that Cantrell was not an employee or director of the bank, or even a majority stockholder. Cantrell could come within the statute, however, if he was a de facto officer of the bank, pulling the bank's financial strings from outside the official organizational structure. 15 Mrs. Phoebe Frazier, vice-president and cashier of the bank, testified at trial that she heard Cantrell announce around March of 1982 that "he did not have anything to do with the bank after that." But Walter Spiva, the president of the bank and its de jure decision-maker, testified that Cantrell was giving the orders at the bank long after March 1982. There was considerable evidence that Cantrell did, in fact, call the shots at the bank, and the trial court was not required to find otherwise. III 16 Whether the evidence was sufficient to support a conviction for misapplication of funds by the de facto officer is a more tangled issue. "Willful misapplication "is not defined in the statute. One frequently cited opinion dealing with willful misapplication, United States v. Gens, 493 F.2d 216 (1st Cir.1974), divides the misapplication cases into three categories: 17 "First, those in which bank officials knew the named debtor was either fictitious or wholly unaware that his name was being used ... Second, cases in which bank officials knew the named debtor was financially incapable of repaying the loan whose proceeds he passed on to the third party ... Third, cases in which bank officials assured the named debtor, regardless of his financial capabilities, that they would look for repayment only to the third party who actually received the loan proceeds: in other words where the debtor allowed only his name to be used, enabling the bank officials to grant a de facto loan to a third party to whom the bank was unwilling to grant a formal loan." 18 493 F.2d at 222; see also United States v. Foster, 566 F.2d 1045 (6th Cir.1977) (applying Gens ). 19 United States v. Duncan, 598 F.2d 839 (4th Cir.1979), defined a Sec. 656 violation in terms of the following elements: 20 "For a violation of Sec. 656 to be proved, the government must show, in addition to the status of both bank and defendant, that the defendant acted willfully, that he misapplied funds, moneys or credits belonging to or entrusted to the custody of the bank and that he did so with the intent to injure or defraud the bank. While the statutory language no longer makes reference to the last mentioned element, it remains a necessary part of the government's proof." 21 598 F.2d at 858. 22 All of the elements of a Sec. 656 violation are present, as the jury could well have found, in the case at bar. Cantrell told Spiva, the president of the Dayton Bank, that although McGee's present financial status was insufficient to support a loan of the magnitude of $412,000, McGee's income would soon almost triple. This was not true. McGee testified at trial that he had no reason to expect a major increase in his income, and he said that he would not have been able to pay off the $412,000 note without Cantrell's assistance. Whether or not Cantrell knew that he was telling Spiva an untruth is, of course, a factual determination for the jury; but there was no effective rebutal of Spiva's testimony, or McGee's. Moreover, according to Spiva, the board of directors was never informed that Cantrell had an interest in the loan to McGee. 23 The evidence shows that Cantrell obtained the $412,000 loan for McGee in the expectation of gaining personal advantage from it. According to McGee's testimony, Cantrell had McGee sign an agreement under which McGee would be obligated to sell the Farmbanc stock to Cantrell at the original purchase price if Cantrell paid off McGee's indebtedness. In return, Cantrell gave McGee a demand note for $412,000 with a "verbal understanding" that if the bank called its note, McGee could call his. That the stock purchase option was never exercised is of no moment. It is not necessary, in showing misapplication of funds, to prove actual gain by the defendant or actual loss by the bank. "It is sufficient that the defendant at least temporarily deprive the bank of the possession, control or use of its funds." Duncan, 598 F.2d at 858. 24 The jury could well have found that Cantrell (a) had the Dayton Bank make a loan to a person who was financially incapable of repaying it; (b) for the purpose of having that person buy stock which Cantrell would have an option to purchase; (c) without informing the Dayton Bank of his interest in the loan. Under any reasonable construction, this constitutes misapplication of funds under Sec. 656. 25 Defendant Cantrell made little attempt to rebut the evidence against him. He called only one witness, Millard Oakley, the man from whom the 10,000 shares of Farmbanc stock had been purchased. Oakley testified, basically, that it was he who sold the stock and that he, not McGee or Cantrell, ultimately pocketed the $412,000. That fact hardly helps Cantrell, however, because Cantrell put himself in a position to acquire the stock. Neither is Cantrell helped by the fact that the Dayton Bank got its $412,000 back, with interest, assuming that this is true. What matters is the risk of loss that was imposed on the bank during the period when the loan was outstanding, and the loss of the opportunity to lend the money to more credit-worthy borrowers. Although the Bank of Cumming took a 90 percent participation in the loan, it was not obligated to do so--and the Dayton Bank was still left with a $40,000 exposure. Defendant's argument that the loan was "risk-free" is not helped by the fact that the Cumming Bank "charged off" half of its share of the loan--meaning, in the words of government witness John Mitchell, that "the bank considers it to be of such doubtful collectability that it should no longer be carried in their assets." And it should be noted that although McGee testified that Cantrell paid off the loan, there is evidence in the record that the loan was in fact charged off by the Dayton Bank & Trust as uncollectible, as well. 26 We think there was substantial evidence to support the conclusion that this case falls in Gens' second category of misallocation, where "bank officials [i.e., Cantrell] knew the named debtor was financially incapable of repaying the loan whose proceeds he passed on to the third party [i.e., Cantrell]." There was also substantial evidence showing willfulness and intent to defraud. IV 27 Cantrell contends that the indictment was unconstitutionally vague because it characterized him as "in fact an officer of Dayton Bank and Trust Company" as well as "a de facto officer of said bank." Cantrell maintains that the government was trying to use two theories without having to choose between them. The argument is creative but unpersuasive. It is clear from a reading of the indictment that "in fact" was used as a synonym for de facto. 28 Cantrell also argues that the indictment was unconstitutionally vague because it failed to discriminate between misapplying funds directly, misapplying funds through the agency of another person, and misapplying funds by aiding and abetting another in doing so. The statute does not so discriminate, however, and the indictment was not deficient. 29 Cantrell argues that the court's charge to the jury gave improper examples of misapplication of funds. Of the three examples given, the first two were taken almost verbatim from the second and third examples in Gens. The third example departed from Gens: 30 "Third, the bank officer or person connected in some capacity with the bank makes a loan to a named debtor, McGhee, with the intent that the proceeds be used for his own benefit and conceals his interest in the loan from the bank. In such a case, the financial condition of the nominal borrower, McGhee, is not relevant. 31 However, where the bank officer or person connected in some capacity with the bank derives no benefit from the loan, he may properly loan money to a named debtor, McGhee, whom the bank officer or person connected with the bank in some capacity knows will reloan the money if the named debtor, McGhee, is creditworthy and understands that he is responsible to repay the loan. 32 In this situation, the bank official or person connected in some capacity with the bank has granted a loan to a financially []capable party who knows his obligation to repay the loan and thus has protected the interests of the bank." 33 Cantrell contends that this example was prejudicial because it characterized McGee as a "nominal borrower." Cantrell made no specific objection on this ground at the charge conference, however, and thus waived any right to complain of the phrase here, absent plain error affecting his substantial rights. United States v. Bouquett, 820 F.2d 165, 170 (6th Cir.1987); see also United States v. Saussy, 802 F.2d 849, 853 (6th Cir.1986); cert. denied, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987). No such error existed. 34 Cantrell also contends that the third example of misapplication was unfairly prejudicial because it deviated from established court interpretations of 18 U.S.C. Sec. 656, such as those made in Gens and in United States v. Foster, 566 F.2d 1045 (6th Cir.1977). But while perhaps not congruent with the examples in Gens, the third example does in fact describe a "nominee loan." In all of the examples in Gens, a bank official had used a named debtor to lend to a third party; here, the allegation was that the bank official had used the named debtor to lend to himself. If the unauthorized lending to a third party in the Gens examples is forbidden by the statute, then certainly the unauthorized lending to oneself is forbidden also. 35 We have carefully examined the remaining objections to the charge, not all of which were made known to the trial court, and we do not find that the court committed any error that would justify setting the conviction aside. The judgment of the district court is AFFIRMED.

01-03-2023

08-23-2011

https://www.courtlistener.com/api/rest/v3/opinions/6363755/

Opinion by Judge Rogers, The Court of Common Pleas of Westmoreland County reversed an order of the Liquor Control Board suspending the restaurant liquor license of Argonne Tavern, Inc. for thirty days. Argonne was cited and suspended for violating Section 491(10) of the Liquor Code1 which forbids licensees “to fortify, adulterate or contaminate any liquor ... or to refill wholly or in part, with any liquid or substance whatsoever, any liquor bottle or other liquor container. ” On the Board’s appeal we remanded the record for findings *380of fact and conclusions of law as to whether the licensee, which the Board found to he in possession of five liquor bottles containing liquor other than the brands indicated by their labels, rebutted the presumption that “mere possession of adulterated liquor is prima facie evidence of knowledge of the illegal act.” Pennsylvania Liquor Control Board v. Argonne Tavern, Inc., 25 Pa. Commonwealth Ct. 286, 287-88, 361 A.2d 480, 481 (1976). See Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); 400 Lounge, Incorporated Liquor License Case, 204 Pa. Superior Ct. 207, 203 A.2d 362 (1964). The court below found that Argonne’s owner did not refill any bottles and that the presumption had been rebutted by (1) the testimony of the owner that he was the only employe on duty on the day the offense was alleged to have occurred and he did not refill any liquor bottles; and (2) the admission by the Commonwealth that distillery formulae were not used to determine whether five bottles contained the brand of liquor stated on the labels. The court relied on IfiO Lounge, supra. In J¡00 Lounge, the licensed establishment employed 13 persons, including 10 bartenders, contained five bars and had capacity for 600 patrons. The licensee there had no prior record of violations. Of the sis bottles tested only one, when tested against a single control bottle, was found to contain liquor with characteristics so different from that of its labeled brand that refilling was indicated. The Superior Court ruled that those circumstances and the fact that the state chemist analyzed the deviant bottle only by comparison with one unopened bottle overcame the presumption. The facts of the present case are much different. Argonne’s owner testified in the court hearing that only he and his wife worked for Argonne. Argonne has been cited for Sunday sales, sales between the hours of 2:00 A.M. and 7:00 A.M., maintain*381ing gambling devices, permitting gambling and permitting lewd and obscene films. Tbe state chemist who performed the tests on the bottles testified in some detail that the State keeps a continuoxisly updated record of the content and characteristics of authentic samples of various liquor brands obtained from bottles from State warehouses and that the contents of all of Argonne’s five bottles tested were compared against those records and found to deviate. Here one of Argonne’s bottles was compared against 11 control bottles and another was compared against 25 control bottles. Argonne offered no evidence except its owner’s testimony that he was the only person working in the bar when the offense was allegedly committed and that he had not refilled any bottles that day. We hold that this evidence was insufficient to rebut the presumption based on possession that the licensee knew of the violation of the statute. Commonwealth v. Speer, 157 Pa. Superior Ct. 197, 42 A.2d 94 (1945). Order And Now, this 1st day of June, 1977, the order of the Court of Common Pleas of Westmoreland County sustaining the licensee’s appeal is reversed and the order of the Pennsylvania Liquor Control Board suspending Argonne’s license for thirty days is reinstated. Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-491(10).

01-03-2023

06-24-2022

https://www.courtlistener.com/api/rest/v3/opinions/2273036/

318 S.W.3d 208 (2010) STATE of Missouri, Respondent, v. Jeffrey L. STARNES, Appellant. No. WD 69573. Missouri Court of Appeals, Western District. June 15, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010. Application for Transfer Denied September 21, 2010. *209 Craig A. Johnston, Columbia, MO, for appellant. *210 Shaun L. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent. Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge. GARY D. WITT, Judge. After a jury trial, Jeffrey Starnes was convicted of driving while intoxicated (DWI). Based on this conviction, Starnes was sentenced by the trial court as a "chronic offender" to ten years in the Missouri Department of Corrections. Because the trial court failed to hear evidence and make a finding that Starnes had four or more intoxicated related offenses prior to the case being submitted to the jury in violation of Section 577.023,[1] we vacate the sentence and remand for resentencing. I. Factual Background Jeffrey Starnes was charged in the Circuit Court of Clay County with DWI for events occurring on July 27, 2007, in violation of § 577.010. The substitute information alleged that Starnes was a "chronic offender" under § 577.023 because he had been convicted of four or more prior "intoxication-related traffic offenses." Beginning on January 14, 2008, the case was tried before a jury. It is not disputed that the State introduced conclusive evidence of three of Starnes's prior intoxication-related traffic offenses during its case in chief, but outside of the hearing of the jury. The fourth intoxication-related traffic offense was a conviction from Kansas City Municipal Court in 1997. The evidence was unclear if this was a conviction for DWI or Driving with an Excessive Blood Alcohol Content (BAC).[2] The trial court also noted that, among other things, the relevant exhibit (Exhibit 4) failed to prove that Starnes was represented by counsel or waived the right to counsel in writing when found guilty of the 1997 municipal offense. Because this evidentiary hearing took place during the State's case in chief, the trial court ruled that the State would be allowed further time during the course of the trial to rectify these evidentiary problems. After the close of all evidence and immediately prior to closing arguments, the trial court asked counsel whether there were any other issues that needed to be discussed before the case was submitted to the jury. The State reminded the trial court of the issue pertaining to "the priors," but the Court stated that "that's not a jury issue." The jury returned a verdict of guilty as charged. After this finding of guilt by the jury, the trial court immediately held a hearing pertaining to the State's evidence on this fourth prior conviction. The trial court further ruled that "the proof and argument's still open to the fourth intoxication-related offense, and the one you have pleaded that in my view you haven't proven is the one that starts out, on or about December 15th, 1997." (Emphasis added.) The trial court noted on the record that Exhibit 4 contained evidence not only pertaining to the 12/15/97 intoxication-related *211 traffic offense, but it also contained evidence pertaining to another charge Starnes had allegedly been found guilty of in Kansas City Municipal Court for driving while intoxicated on September 5, 1996. In an attempt to clarify its rulings on this issue, the trial court stated that "we have to break State's Exhibit 4 up into two pieces" so that the evidence pertaining to the 1996 municipal offense was distinct and different from the 1997 offense. Specifically, a new exhibit was created (Exhibit 8) and admitted that contained the evidence pertaining to the 12/15/97 conviction. The evidence pertaining to the previous conviction, stemming from the 1996 incident, remained Exhibit 4 but was no longer considered by the trial court because the 1996 offense was not pled in the First Amended Information. Starnes's trial counsel argued at the hearing that Exhibit 8 did not demonstrate beyond a reasonable doubt that Starnes was represented by counsel when found guilty by the municipal court on December 15, 1997. Starnes further argued that while Exhibit 8 demonstrated that Starnes was represented by counsel in this matter at some time, the State could not prove that counsel had represented Starnes when he was found guilty by the municipal court because handwritten notes on Exhibit 8 demonstrated that counsel was granted leave to withdraw on September 29, 1997. At the end of the hearing on January 15, 2008, the trial court did not make a ruling as to whether Starnes was a chronic offender; instead, the trial court continued the matter to allow the State to gather additional evidence on the issue of Starnes's conviction in municipal court on December 15, 1997. Prior to continuing the hearing, Starnes's trial counsel stated that he would not object to the State "trying to gather some more information" pertaining to this fourth conviction. Finally, the trial court ruled that it was not going "to file the verdict as of today since we don't know the level of the offense and evidence is still coming in on judge stuff" and that the Court was "not accepting the judgment today." On January 16, 2008, the trial court entered an order that stated, in part, the following: Because the proof is not complete on issues to be determined by the court, i.e., whether the defendant has 3 or 4 prior intoxication related offenses, a determination that will determine whether defendant is guilty of a Class C or a Class B felony, the verdict is not filed. The defendant shall have 15 additional days within which to file a motion for new trial or, other appropriate relief. The date on which defendant's 25 days within which to file his motion will not begin to run until the court enters an order on the remaining issue. On January 25, 2008, the trial court held another evidentiary hearing on this issue. At the beginning of the hearing, the trial court allowed the State to submit into evidence Exhibit 101. Exhibit 101 was similar to Exhibit 8 in that they both contained evidentiary documentation that attempted to establish that Starnes was found guilty of BAC on December 15, 1997; however, Exhibit 101 provided additional documentation that a second attorney had entered his appearance in this case at an unknown time, possibly before the other attorney had withdrawn. The State argued that from this second entry of appearance the trial court could reasonably infer that Starnes was represented by an attorney at the 12/15/1997 guilty plea hearing. On February 1, 2008, the trial court held yet another evidentiary hearing on this issue, wherein Starnes called two witnesses to testify regarding whether *212 Starnes was represented at the 12/15/1997 hearing. Bernard Schneider, the Court Administrator of the Kansas City Municipal Court, testified that in his opinion in reviewing the relevant court records, Starnes was represented by counsel when pleading guilty. Starnes testified at the hearing that he was not represented by counsel when he pled guilty. At the end of this evidentiary hearing, the trial court concluded that it was "firmly convinced that the defendant was represented by counsel when he entered his plea to reduced charge on December 15th, 1997," and that therefore Starnes would be "sentenced on a Class B Felony" as a chronic offender. On February 26, 2008 the Defendant filed his Motion for New Trial. On April 3, 2008, the trial court sentenced Starnes to ten years in the Missouri Department of Corrections. Starnes now appeals. II. Analysis In his sole Point Relied On, Starnes argues that the trial court erred "in finding Appellant to be a chronic DWI offender under Section 577.023" because the State failed to prove beyond a reasonable doubt that Starnes was a chronic offender prior to the case being submitted to the jury as required by Section 577.023. Section 577.023.1(2)(a) states that a "chronic offender" is a person "who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses," and Section 577.023.5 provides that any individual who is proven to be "a chronic offender shall be guilty of a class B felony." It is not disputed on appeal that the State timely proved and the trial court timely found, beyond a reasonable doubt, that Starnes had three previous convictions for intoxication-related traffic offenses, meeting the requirements for a conviction as a Class C Felony, Aggravated Offender under Section 577.023. Solely in dispute is whether the State properly and timely proved, and the trial court properly and timely found, the fourth such conviction to exist beyond a reasonable doubt. Section 577.023.8 specifies that, "[i]n a jury trial, the facts [establishing chronic offender status] shall be pleaded, established and found prior to submission to the jury outside of its hearing." (Emphasis added.) Section 577.023.16 similarly provides that "[e]vidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury" and "[a]fter hearing the evidence, the court shall enter its findings thereon." (Emphasis added.) The Supreme Court of Missouri has repeatedly made it clear that the statutory timing requirements for the State to present evidence to the trial court of prior, aggravating offenses are mandatory and not discretionary. In State v. Severe, the Supreme Court of Missouri held that "[w]hen presenting evidence against a defendant charged with a crime, the language of the statute is of paramount importance." 307 S.W.3d 640, 644 (Mo. banc 2010). In Severe, defendant was convicted of driving while intoxicated after a jury trial, and the trial court sentenced defendant as a "persistent offender" in light of the fact that the State had proven that defendant had "two prior alcohol related-convictions." Id. at 641. While the appeal of her conviction was pending, the Supreme Court decided Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), which held that a municipal DWI plea that resulted in a suspended imposition of sentence could not be used to enhance the offense to a class D felony. Id. *213 Because one of the defendant's prior convictions was for a municipal DWI guilty plea that resulted in a suspended imposition of sentence, the Supreme Court of Missouri reversed the trial court's judgment and remanded for resentencing based on its conclusion that "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Id. In so holding, the Court expressly rejected the State's argument that it should be provided an opportunity on remand to prove the existence of other prior intoxication related offenses because the applicable statute provides "that `in a jury trial, the facts shall be pleaded, established and found prior to submission to the jury.'" Id. at 644 (quoting 558.021.2, emphasis added by the Court).[3] In Severe, the Missouri Supreme Court relied heavily on its previous holdings in State v. Emery, 95 S.W.3d 98 (Mo. banc 2003), and State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), which dealt squarely with the issue of when prior convictions must be pled and proven to the trial court pursuant to Section 558.021. "Section 577.023 follows the same procedures as Section 558.021 to establish persistent DWI offender status." State v. Rose, 169 S.W.3d 132, 136-37 (Mo.App. E.D.2005). In Emery, the Supreme Court of Missouri concluded that the trial court had erred in sentencing the defendant as a prior and persistent offender because at trial the State failed to present evidence to prove the existence of the alleged prior offenses. 95 S.W.3d at 101. Because a remand allowing the State to present additional evidence of the defendant's prior convictions "would require the sentencing court to commit error by violating" the timing requirement of the statute, the Supreme Court in Emery remanded "for resentencing without regard to prior or persistent offender status." Id. at 100, 102. In refusing to allow the State an opportunity to present further evidence of the prior convictions on remand, the Supreme Court also relied on the fact that the genesis of the problem was "`prosecutorial laxity'" in failing "to prove prior convictions `in conformity with applicable statutory requirements.'" Id. at 101 (quoting State v. Cullen, 39 S.W.3d 899, 906 (Mo.App. E.D. 2001)). The Supreme Court of Missouri in Teer expanded upon why the statutory language in question "imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury." 275 S.W.3d at 261 (emphasis added). In Teer, during trial the State moved to amend the information in order to charge the defendant as a prior offender due to a previous stealing conviction, and the trial court "sustained this motion after the case was submitted to the jury but before the verdict." Id. at 260 (emphasis added). In reversing the defendant's conviction on appeal, the Missouri Supreme Court held that the trial court's failure to make the relevant ruling until after the case was submitted to the jury was in error for the following reasons: Section 558.021.2 unequivocally provides that the prior offender status "shall" be pleaded and proven prior to the case being submitted to the jury. The word *214 "shall" generally prescribes a mandatory duty.... As such, section 558.021.2 implicates a defendant's liberty and, like other criminal statutes, should not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within its terms. This interpretive rule applies to both the procedural and substantive aspects of criminal statutes and requires the statute to be construed strictly against the state and in favor of the defendant. The plain language of section 558.021.2 imposes a mandate requiring that prior offender status be pleaded and proven prior to the case being submitted to the jury. When the plain language of section 558.021.2 is construed in favor of the defendant, the absence of a penalty provision does not necessarily mean that compliance with the statute is merely directory. There is no dispute that Teer's status as a prior offender was not plead and proven until after the case was submitted to the jury. This procedure violated the plain language of section 558.021.2. 275 S.W.3d at 261-62 (citation omitted). Teer, Emery, and Severe all require that this matter be vacated and remanded for re-sentencing as an "aggravated offender" because the trial court erred in hearing evidence and in making findings regarding Starnes's alleged chronic offender status after the case was submitted to the jury, in direct violation of the timing requirements of Section 577.023. The State's attempts to distinguish the aforementioned case law on appeal are unavailing. To begin with, the State cites to statutory language other than the language this Court is required to interpret in order to support its argument that "[s]ince the enactment of bifurcated proceedings, the phrase `prior to submission to the jury' [in section 577.023] can mean one of two things: prior to submission of the case for a guilt determination, or prior to the submission of the case for a punishment recommendation." The State argues that the applicable language of Section 577.023.8, which it concedes has not changed since it first became law in 1982, somehow took on a new meaning when the legislature adopted bifurcated trial proceedings pursuant to Section 557.036. But the State fails to cite any authority to support this proposition and for good reason because the "`fundamental rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.'" Inter City Fire Prot. Dist. v. DePung, 283 S.W.3d 277, 279 (Mo. App. W.D.2009) (quoting State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 306 (Mo.App. E.D.1996)). Here, the Missouri Supreme Court has made clear on numerous occasions that the language of the statute in Section 577.023, by itself, is clear and unambiguous, and thus not open to interpretation from other sources. Here, the State had ample opportunity to prove, pursuant to the statutorily required timing requirements, that Starnes was a chronic offender. The trial court made an express finding that the State failed to make a showing beyond a reasonable doubt of the fourth alcohol related offense prior to the case being submitted to the jury. Accordingly, the instant case provides an even more compelling case for vacation of the sentence than the Supreme Court of Missouri's most recent holding in this area of the law in Severe because, unlike in Severe, the State could have prevented the evidentiary problem that is the subject of this appeal through proper presentation of the relevant evidence at trial. *215 The State further argues that Starnes's claim on appeal should be denied because the evidence submitted by the State in its case in chief was sufficient to prove that Starnes had four prior intoxication related traffic offenses. The State ignores the fact that the trial court made an express ruling that the evidence presented in the State's case in chief was, in fact, insufficient in this regard. Specifically, after the case was submitted to the jury, the trial court found that "the one you have pleaded that in my view you haven't proven is the one that starts out, on or about December 15th, 1997." Accordingly, we will defer to the factual determination of the trial court and will not re-weigh the evidence in this regard on appeal. The State further argues on appeal that Starnes was not prejudiced by the trial court's error in this regard based on the assumption that Starnes is "in fact" a chronic offender and "that defendants generally cannot establish prejudice when they are, in fact, prior offenders and not entitled to jury sentencing." But this argument was rejected by the Supreme Court of Missouri in Severe. In Severe, it was undisputed that, even when excluding the municipal SIS conviction pursuant to Turner, the defendant was still a prior offender who was not entitled to jury sentencing. Severe, 307 S.W.3d at 641-43. Nonetheless, the Supreme Court of Missouri reversed and remanded for re-sentencing on the lesser conviction and held that the State was not entitled to adduce additional evidence of the defendant's other priors because to do so would violate the timing requirements of the statute. Id. at 644-46. Stated another way, the Court held that whether the State could prove that the defendant was a persistent offender was irrelevant because the State failed to adduce such proof at the proper time under the statute. Id. For the reasons discussed at length previously, the trial court erred when it sentenced Starnes as a "chronic offender" instead of as an "aggravated offender" in light of the fact that the State only proved (and the trial court only found) three prior convictions prior to the case being submitted to the jury. Moreover, this error was prejudicial because Starnes was sentenced to a ten year term of imprisonment, which is a term greater than the maximum seven year sentence allowable as a matter of law pursuant to Section 577.023.4 for the Class C felony enhanced sentence for an "aggravated offender." Severe, 307 S.W.3d at 644-46; Teer, 275 S.W.3d at 262. Finally, notwithstanding the fact that the trial court so erred in this regard, the State suggests that this Court should not grant relief to Starnes pursuant to plain error review. We disagree. There can be no doubt that this Court is constrained to plain error review because Starnes failed to timely file a motion for new trial. Rule 29.11(b) provides, in relevant part, that a "motion for new trial ... shall be filed within fifteen days after the return of the verdict" and that the court "may extend the time for filing of such motions for one additional period not to exceed ten days." In this case, the trial court attempted to extend the period for which Starnes could file his motion for new trial beyond that permitted by Rule 29.11.[4] The jury returned its guilty verdict on January 15, 2008, thus beginning the time for which Starnes had to file his motion for new trial. *216 Nonetheless, on January 16, 2008, the trial court entered an order that Starnes's time to file a motion for new trial would not begin until "the court enters an order on the remaining issue" regarding whether it would sentence Starnes on the Class C or B felony. Despite the trial court's express warning to Starnes that the Court may not have jurisdiction to so expand the time to file his motion for new trial, Starnes apparently relied on this order in waiting until February 26, 2008, to file his motion for new trial. We do not condone Starnes's failure to timely file his motion for new trial because only he can ensure that his claims are properly preserved for review by this Court. However, we note that the failure to timely file a motion for new trial does not preclude this Court's review of any alleged error. State v. Johnson, 150 S.W.3d 132, 136 (Mo.App. E.D.2004) ("In this case, the record clearly indicates Defendant was sentenced improperly, resulting in a manifest injustice and a miscarriage of justice. Therefore, we exercise our discretion and review for plain error [notwithstanding the fact that Defendant failed to timely file his motion for new trial].") Plain error review requires this Court to find a "manifest injustice or a miscarriage of justice" pursuant to Rule 30.20. The Supreme Court of Missouri just recently held in Severe that "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Severe, 307 S.W.3d at 642. "`Where it appears that a defendant has been improperly sentenced as a prior or persistent offender, plain error review is appropriate.'" State v. Manley, 223 S.W.3d 887, 892 (Mo.App. W.D.2007) (quoting State v. Stephens, 88 S.W.3d 876, 885 (Mo.App. W.D.2002)). "A defendant cannot by waiver confer jurisdiction on the court to impose a sentence not authorized by law." State v. Prell, 35 S.W.3d 447, 450 (Mo.App. W.D.2000). Because the trial court erred when sentencing Starnes as a "chronic offender" instead of as an "aggravated offender," Starnes was sentenced to a punishment greater than the maximum allowable sentence as a matter of law. Thus, this constituted plain error resulting in manifest injustice. Severe, 307 S.W.3d at 641-43.[5] Finally, we reject the State's argument that Starnes "waived any challenge to the timing of the court's determination of Appellant's chronic offender status." The State insinuates that this waiver by Starnes took place on two separate occasions, and accordingly each one will be analyzed separately. To begin with, the State points to the fact that Starnes did not object during the following colloquy that transpired between the Court and the State immediately prior to the case being submitted to the jury: The Court: It's time to invite the jury in.... Anything else we need to talk about before the jury comes in? The State: Judge, the only other issue is the priors. The Court: Well, that's not a jury issue. The State: No, not a jury issue. The Court: The jury's waiting. Let's get the jury issues in their hands, and *217 then we can talk about Court issues as you like. (Emphasis added.) Starnes could not have been expected to make a specific objection based on Section 577.023 to the above comments because all the Court stated was that the State would be free to "talk" about "Court issues." The trial court was correct in its assertion that the issue of prior criminal convictions was not a "jury issue," and thus Starnes could not be expected to object to this truism. In response to the State's argument that Starnes had waived this issue by not objecting, even the trial court later acknowledged that it did not consider Starnes's silence to constitute a waiver of this issue when it made the following statement: "Well, the record will be plain enough that I was not relying on the agreement of the parties in doing what I did." As discussed previously, the State went well beyond talking about the issue of Starnes's prior conviction, and the trial court actually heard further evidence on this issue on which the Court made the ultimate finding that Starnes was a chronic offender. In its last attempt to demonstrate that Starnes is not entitled to plain error review, the State argues that Starnes waived this issue after the jury had returned its verdict and the reversible error had already been committed. Specifically, after the jury returned its guilty verdict, the trial court held a hearing on the issue of Starnes's alleged fourth prior conviction. At that hearing, the Court expressly found that its previous findings were insufficient to sentence Starnes as a chronic offender. For the reasons explained previously, there can be no doubt that the trial court then erred by acting upon the erroneous belief that "proof and argument's still open as to the fourth intoxication-related offense." The State is correct that Starnes's trial counsel later stated, after the jury returned its verdict, that he would not object to the State "trying to gather some more information" as it pertained to Starnes's fourth municipal conviction and setting it over for a hearing for that purpose. But we do not believe that this statement by trial counsel should preclude this Court from reviewing for plain error because had Starnes's trial counsel objected, the trial court would not have been able to take corrective action in light of the fact that the error in question was irreconcilable pursuant to Section 577.023. The sanction of waiver only takes on meaning when a "timely objection would have allowed the trial court to take corrective action," and here it would have been impossible for Starnes to "sandbag" the trial court on the issue in light of all the circumstances. State v. Dueker, 990 S.W.2d 670, 682 (Mo.App. E.D.1999). When Starnes's trial counsel came back for the subsequent hearing and immediately objected to the State introducing further evidence in this regard, the State and trial court were in no worse of a position than they were after the case was submitted to the jury. We must also note that the case law that the State cites simply does not support its argument that Starnes somehow waived this issue. For example, the State quotes Emery, 95 S.W.3d at 103, for the proposition that "because the defendant `chose to sit on his statutory right,'" "he waived it," but this principle was directed solely as to whether the defendant in Emery waived his right to jury sentencing which is not at issue here. In fact, Emery actually supports the conclusion that Starnes had no duty to object to the State's failure to prove the fourth conviction prior to the submission of the case to the jury because in Emery the defendant did not so object at trial. Id. at 102. Yet the Supreme *218 Court of Missouri still "remanded the matter for re-sentencing without regard to prior or persistent offender status" in light of the fact that the State adduced no evidence at trial of the defendant's relevant prior convictions. Id. at 100. Finally, the State attempts to analogize the instant case to State v. Anderson, 294 S.W.3d 96 (Mo.App. E.D.2009). It should be noted that Anderson was decided prior to the Supreme Court's decision in Severe and the outcome of Anderson may have been different following the Supreme Court's later holding. In addition, Anderson is different from the instant case for at least two reasons. In Anderson, during trial the defendant stipulated that he had prior "pleas of guilty" during which he was represented by counsel, and based on these stipulations the trial court made a finding that he was a prior offender. Id. at 99. Here, Starnes never stipulated that he had four prior convictions; to the contrary, once the evidentiary issue was raised by the trial court, Starnes never conceded that the State proved beyond a reasonable doubt that he was represented by counsel or waived that right as it pertains to his 12/15/97 guilty plea. Moreover, after the case was submitted to the jury in Anderson, the trial court made an additional finding that the defendant was a persistent offender, and in doing so the trial court expressly advised the defendant that such a finding could well violate the Supreme Court of Missouri's holding regarding "the timing of this finding... under State v. Emery." Id. at 99. The defendant expressly stated that he did not object, and this led the Eastern District to conclude as follows: Here, when the trial court proposed to take judicial notice of a file and to make a finding that Anderson was a persistent offender after the case had been submitted to the jury, it asked Anderson whether he had an objection. Anderson responded that he did not, and it should be noted that Anderson was fully aware of the trial court's error because the trial court pointed it out to him and still he chose to acquiesce in the trial court's conduct. As a result, Anderson affirmatively waived review of this claim of error. Id. at 100. For reasons already expanded upon at length, Anderson does not govern the resolution of the instant dispute. Under the guidance of Severe and the Supreme Court of Missouri's other relevant precedents, we conclude that a limited remand is required for the trial court to re-sentence Starnes as an "aggravated offender" because "[b]eing sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." Severe, 307 S.W.3d at 642. Point granted. Conclusion Because Starnes was improperly sentenced as a chronic offender to ten years imprisonment, his sentence is hereby vacated and the cause is remanded with instructions that Starnes be resentenced as an aggravated offender. All concur. NOTES [1] All statutory citations are to RSMo 2000 as updated through the 2007 Cumulative Supplement, unless otherwise indicated. [2] In its original information the State alleged that it was a conviction for DWI. On the first day of trial the State filed, without objection, a substitute information alleging that it was a conviction for BAC. [3] The majority in Severe analyzes section 558.021.2 as the relevant statute, when in fact as the dissent correctly notes "this case deals with 577.023." 307 S.W.3d at 642 n. 4 (Breckenridge, J., dissenting). Indeed, the distinction between these two statutes is irrelevant for the purposes of this analysis because "[b]oth statutes contain identical language that requires presentation of such evidence prior to the case's submission to the jury." Id. [4] All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated. [5] In concluding that a manifest injustice occurred, we note that the trial court's error in sentencing Starnes as a chronic offender not only sentenced him to a term of imprisonment longer than that permitted by law, it also had other collateral consequences because 577.023.6 provides that "[n]o chronic offender shall be eligible for parole or probation until he or she has served a minimum of two years imprisonment."

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273045/

317 S.W.3d 621 (2010) J.K.M., Plaintiff-Appellant, v. Kenneth J. DEMPSEY, M.D., Defendant-Respondent. No. SD 29791. Missouri Court of Appeals, Southern District, Division One. July 28, 2010. *622 Daniel H. Rau, Cape Girardeau, MO, for Appellant. Robert J. Amsler, Jr., and David L. Hares, St. Louis, MO, for Respondent. DON E. BURRELL, Judge. J.K.M. ("Plaintiff")[1] appeals the trial court's dismissal of his civil damages action against Kenneth J. Dempsey, M.D. ("Defendant") *623 based on Plaintiff's failure to timely file the health care affidavit required by section 538.225.[2] Although Plaintiff attempted to avoid characterizing his claims against Defendant as based on medical negligence, the factual averments set forth in Plaintiff's petition required that such an affidavit be filed. Because Plaintiff did not file a health care affidavit within the time allowed by statute, the trial court was required to dismiss Plaintiff's action without prejudice upon Defendant's motion and its judgment doing so is affirmed. Factual and Procedural Background When reviewing the trial court's dismissal of a petition, we treat the facts pleaded as true and construe all averments liberally and favorably to the appellant. Kanagawa v. State, 685 S.W.2d 831, 834 (Mo. banc 1985). In accordance with that standard, the following is a summary of the factual averments of Plaintiff's petition. On April 4, 2001, Plaintiff was taken by his mother to Ferguson Medical Group in Sikeston, Missouri for the treatment of warts he had on his right hand. At that medical facility, Defendant told Plaintiff and his mother that he was going to inject Plaintiff with the "famous Swiss wart burner vaccine." Defendant then inserted an 18-gauge needle into Plaintiff's right buttock and injected what he later revealed to Plaintiff's mother was merely a saline solution.[3] Plaintiff claims that Defendant did not have Plaintiff's consent to insert the needle into his body or inject him with saline solution and that any alleged consent was obtained by fraud and deceit. Plaintiff's claims against Defendant were characterized as breach of fiduciary duty and assault and battery. Plaintiff's petition further alleged that "as a direct and proximate result of the aforementioned breach of fiduciary duty by [Defendant], [Plaintiff] has suffered physical injury, severe emotional distress, depression, great indignity, humiliation, nervousness, anxiety and worry." Along with his answer to Plaintiff's petition, Defendant filed a "Motion to Dismiss for Failure to File Health Care Affidavit, pursuant to Section 538.225[.]" The trial court heard Defendant's motion to dismiss on June 26, 2008, at which time it granted Plaintiff thirty days to obtain the required health care affidavit. Plaintiff obtained the affidavit of Dr. James E. Palen, M.D. on July 11, 2008. Presumably in response to the filing of that affidavit, the trial court held a follow-up hearing on July 24, 2008. At that hearing, Defendant again moved to dismiss the petition, based on several alleged deficiencies in the affidavit obtained from Dr. Palen. Defendant's specific complaints were: a) It states that the health care provider believes [Defendant] breached the standard of care but fails to use the language set forth in the statute leaving to question whether the health care provider believes [Defendant] failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances; b) It states the health care provider believed the breach of the standard of care was the proximate and direct cause of injury but fails to follow the statutory requirement that the health care provider must believe that [Defendant] failed to use such care as a reasonably prudent *624 and careful health care provider would have under similar circumstances; c) It fails to state whether James Palen, M.D. is licensed; d) It fails to state whether James Palen, M.D. is currently practicing or whether he authored the written opinion within five years of his retirement; e) It states that James Palen, M.D. is a general practitioner and he is not in the specialty of [Defendant], who practiced as a dermatologist and; f) The health care affidavit fails to provide the address and qualifications of James Palen, M.D. Defendant supported his motion with an affidavit in which he set out his specialization as a board-certified dermatologist. At the close of this hearing, the trial court granted Plaintiff an additional thirty days in which to obtain an appropriate health care affidavit. Plaintiff then filed an amended health care affidavit four days after the trial court's thirty-day deadline had expired. Plaintiff apparently understood that his amended affidavit was still deficient and requested by motion additional time, up to September 19, 2008, to obtain an amended affidavit in conformity with the trial court's order. Although the trial court granted this request for additional time, Plaintiff never filed such an amended affidavit.[4] On September 18, 2008, Defendant filed his "Fourth Amended Motion to Dismiss for Failure to File Health Care Affidavit Pursuant to § 538.225, R.S.Mo[.]" This motion asserted, among other things, that the trial court lacked the "power to extend the time for [Plaintiff] to submit an affidavit pursuant to § 538.225, R.S.Mo. after the expiration of the first one hundred eighty (180) days." On April 1, 2009, the trial court entered an order dismissing Plaintiff's case. On May 26, 2009, the trial court incorporated its previous order of dismissal and designated it as a judgment. Plaintiff now appeals that judgment of dismissal. Analysis Plaintiff's two points on appeal are not in compliance with the requirements of Rule 84.04(d).[5] As Defendant has addressed Plaintiff's points on the merits and we do not believe the deficiencies substantially impede appellate review, we review Plaintiff's points ex gratia. See DeLong Plumbing Two, Inc. v. 3050 N. Kenwood LLC, 304 S.W.3d 784, 788 (Mo.App. S.D. 2010). The gist of Plaintiff's first point is that the trial court erred in requiring him to obtain a health care affidavit at all "in that there was no medical treatment provided by [Defendant] and he: breached the fiduciary duty owed to [Plaintiff]; that [Plaintiff] was assulted [sic] and battered by [Defendant]; and, that [Plaintiff] is entitled to puntivie [sic] damages as a result of the breach of fiduciary duty and/or being assaulted and battered." Plaintiff's second point alleges, in toto, "The trial court erred in finding that the affidavit filed by [Plaintiff] in compliance with § 538.225 was deficient." Standard of Review We review the grant of a motion to dismiss by the circuit court de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). Matters of statutory interpretation and the application of the statute to specific facts are also reviewed *625 de novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo.App. E.D.2005). Point I: Was an Affidavit Required? Section 538.225 provides: 1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition. 2. As used in this section, the term "legally qualified health care provider" shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant. 3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion. 4. A separate affidavit shall be filed for each defendant named in the petition. 5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days. 6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice. 7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs. Section 538.225 (emphasis added). Missouri courts have interpreted this section as applying to more than just medical negligence causes of action. Our Supreme Court has stated that "by using the words `any action' in sec. 538.225.1, the legislature clearly demonstrated its intent that the statute not only apply to a negligence action" but should include other claims of personal injury against a health care provider. Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000). The legislature also "intended to impose specific limitations on the traditional tort causes of action available against a health care provider." Id. "Included in these limitations is [ ... ] the requirement that the cause of action be dependent upon an affidavit by a `legally qualified health care provider' of failure to exercise reasonable care attributable to the defendant health care provider[.]" Id. (quoting section 538.225). *626 The appropriate question to ask when determining if a health care affidavit is required is whether the allegations against the defendant arise from the defendant's actions as a health care provider.[6]See Jacobs v. Wolff, 829 S.W.2d 470, 472 (Mo.App. E.D.1992). The plaintiff in Jacobs sued Dr. Wolff on theories of tortious interference with contract, negligent infliction of emotional distress, negligence, and prima facie tort. Id. at 471. The Eastern District held that section 538.225 applied because the claim for damages related to wrongful acts alleged against a health care provider, regardless of how the claims were characterized by the plaintiff. Id. at 472. See also Gaynor v. Washington Univ., 261 S.W.3d 650, 653-54 (Mo. App. E.D.2008) (a health care affidavit is still required by section 538.225 in a personal injury action in which proof is based on res ipsa loquitur). "Health care services" are statutorily defined in Section 538.205(5) as Any services that a health care provider renders to a patient in the ordinary course of the health care provider's profession or, if the health care provider is an institution, in the ordinary course of furthering the purposes for which the institution is organized. Professional services shall include, but are not limited to, transfer to a patient of goods or services incidental or pursuant to the practice of the health care provider's profession or in furtherance of the purposes for which an institutional health care provider is organized[.] Section 538.205(5). See also Mello v. Giliberto, 73 S.W.3d 669, 679 (Mo.App. E.D. 2002) (quoting section 538.205(5) and holding that a health care affidavit was required when the plaintiff's true claims related to the wrongful acts of health care providers in providing health care services to the patient and the requested damages were for the patient's personal injuries and resulting death). This court addressed whether the health care affidavit required by section 538.225 must be filed in an action based on an intentional tort in St. John's Reg'l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 171 (Mo.App. S.D.1993). In St John's, expounding on Jacobs, we articulated the test as follows: "[I]f a court determines that the relationship of the parties is that of health care provider and recipient and that the `true claim' relates only to the provision of health care services, then the health care affidavit is mandatory." Id. at 171. After applying this test, we concluded that the plaintiff's "true claim" required the filing of a health care affidavit because *627 her claim (characterized as false imprisonment) was based on "the incorrect—or totally absent—medical determination that she needed to be confined." Id. at 171. The Western District, in Vitale v. Sandow, held that a health care affidavit was required in a suit for libel brought against physicians who published letters stating that the plaintiff's "physical symptoms were due to malingering." 912 S.W.2d 121, 122 (Mo.App. W.D.1995). The court held that the statements were of a medical diagnosis and "constituted [the doctors'] evaluation of [the plaintiff's] condition, which is the precise reason he was referred to these doctors." Id. at 122. Further, the court determined that the central issue at trial would be whether the plaintiff was, in fact, malingering. Id. For this reason, "the basis of [the plaintiff's] true claim for damages is that the doctors' diagnosis was incorrect," and a medical affidavit was therefore required. Id. In the case at bar, Plaintiff's petition avers that Plaintiff "went to [Defendant's] medical practice to obtain medical treatment for various skin conditions including warts." The petition then claims that Defendant "owed a fiduciary duty to [Plaintiff] to properly inform [Plaintiff] of the medical benefits of the treatment to be performed to properly obtain his informed consent to participate in such treatment." The petition further claims that Defendant "breached his fiduciary duty of obtaining consent to a worthless and painful course of medical treatment [...]." (Emphases added). Plaintiff's true claim is that Defendant failed to appropriately obtain informed consent and rendered improper medical services. "`The basic philosophy in malpractice cases is that the doctor is negligent by reason of the fact that he has failed to adhere to a standard of reasonable medical care and that consequently the service rendered was substandard and negligent.'" Wuerz v. Huffaker, 42 S.W.3d 652, 656 (Mo.App. E.D.2001) (quoting Aiken v. Clary, 396 S.W.2d 668, 673 (Mo. banc 1965)). "This applies whether the alleged malpractice consists of improper care or treatment or a failure to sufficiently inform a patient to enable the patient to give informed consent to the treatment." Wuerz, 42 S.W.3d at 656. Because the true nature of Plaintiff's claim was that he suffered personal injury as a result of Defendant's rendering of health care services, the trial court did not err in finding that Plaintiff was required to file a health care affidavit pursuant to section 538.225. Point I is denied. Point II: Sufficiency of Affidavit Irrelevant Because Not Timely Filed Section 538.225 requires that a health care affidavit "shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days." Section 538.225.5. "If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice." Section 538.225.6 (emphasis added). "When a statute mandates that something be done by providing that it `shall' occur and also provides what results `shall' follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed." SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279, 281 (Mo.App. E.D.2007). The trial court is required to dismiss the case if the plaintiff does not file the affidavit within the statutory time period. Gaynor v. Washington Univ., 261 S.W.3d at 652-53 (Mo.App. E.D.2008). *628 Plaintiff filed his Petition on April 20, 2007, and filed his first health care affidavit on July 11, 2008—over a year after his petition was filed. This delay was well beyond the absolute 180-day limit imposed by section 538.225. Because section 538.225 required the trial court to dismiss Plaintiff's petition (upon Defendant's motion) after the maximum time allowed for the filing of the health care affidavit had passed, the court committed no error in doing so. Whether Plaintiff's tardy affidavit otherwise complied with the requirements of section 538.225 is moot. Plaintiff's second point is also denied, and the trial court's judgment of dismissal is affirmed. BARNEY, J., and BATES, P.J., concur. NOTES [1] The events described in Plaintiff's petition were alleged to have occurred when Plaintiff was twelve years' old. Plaintiff's petition was filed six years later. Because this lawsuit was prosecuted in Plaintiff's own name, we presume it was not filed until after his eighteenth birthday. See Rule 52.02 (requiring that civil actions by minors "may be commenced and prosecuted only by a duly appointed guardian of such minor, or if there is no such guardian, by a next friend appointed in such civil action[.]") Rule 52.02(a), Missouri Court Rules (2007). As the record does not reveal the actual date of Plaintiff's birth, we identify him only by initials out of an abundance of caution. In any event, Plaintiff will have attained the age of majority by the time any new lawsuit might be filed. [2] Unless otherwise indicated, all statutory references are to RSMo, Cum.Supp.2006. [3] Defendant's purported reason for injecting the saline was for its placebo effect. [4] The amended affidavit Plaintiff did file was ruled defective by the trial court in its Judgment and Order dated April 1, 2009. [5] All rule references are to Missouri Court Rules (2010). [6] Plaintiff argues in support of his first point that Defendant was not a "health care provider" in this case because "the relationship between a health care provider and a recipient is a consensual relationship[,]" that the consent necessary is an informed one, and Plaintiff did not consent to the insertion of the needle into his buttock. We cannot reconcile this argument with Plaintiff's admission at oral argument that the fiduciary duty he alleges Defendant breached arose out of the doctor-patient relationship. Plaintiff has also failed to provide any support for the notion that the consent necessary to create a doctor-patient relationship is dependent on consent to undergo specific procedures within a course of treatment. The cases cited by Plaintiff do not help him. In Corbet v. McKinney, 980 S.W.2d 166 (Mo.App. E.D.1998), it was held that no physician-patient relationship with defendant was created when the patient's personal physician merely contacted the defendant physician by telephone and discussed the patient's case. In Spruill v. Barnes Hosp., 750 S.W.2d 732 (Mo.App. E.D.1988), it was held that the plaintiff's breach of contract action was actually a malpractice claim, which was effectively barred under the applicable statute of limitation. In Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029 (1931), it was held that the claim the plaintiff characterized as a breach of contract action was actually a medical malpractice action barred by the applicable statute of limitation.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273071/

23 Cal. App. 4th 1285 (1994) 28 Cal. Rptr. 2d 699 ERIC JACOBSON, Plaintiff and Appellant, v. SIMMONS REAL ESTATE, Defendant and Respondent. Docket No. C016159. Court of Appeals of California, Third District. March 28, 1994. *1288 COUNSEL Eric Jacobson, in pro. per., for Plaintiff and Appellant. Shepard & Haven, Mark A. Hurst, Nancy L. Dye and Karen E. Halbo for Defendant and Respondent. OPINION SIMS, J. Plaintiff obtained a judgment against defendant for breach of a written contract and was awarded his costs. Although he is not an attorney and appeared in the action pro se, plaintiff sought an award of attorney fees pursuant to the attorney fee clause of the contract for the time he spent on the case. The trial court declined to award the requested fees. On appeal, plaintiff contends he was entitled to a fee award as a matter of law, the denial of fees violates his state and federal rights to due process and equal protection, and the amount of his fee request was reasonable. We affirm. FACTS AND PROCEDURAL BACKGROUND Plaintiff rented a storage locker from defendant. During a seven-year period, plaintiff made numerous late payments of rent which were accepted *1289 by defendant. However, when plaintiff fell behind in rent in April 1986, defendant entered his locker without prior notice to plaintiff and sent its contents to an auction house which consigned the items to a landfill. Plaintiff filed a complaint in propria persona, and the matter was ordered to judicial arbitration. Plaintiff retained an attorney to represent him in that proceeding. The arbitrator found that defendant had systematically received plaintiff's late payments and was estopped from demanding strict compliance with the terms of the rental agreement. Plaintiff was awarded $1,500 "together with costs of suit as submitted by cost bill." The award was entered as a judgment on October 28, 1992, and notice of entry of judgment was mailed the same day. On November 16, 1992, plaintiff filed a memorandum of costs which was untimely under the 15-day limit of rule 870 of the California Rules of Court. (Further references to rules are to the California Rules of Court.) Plaintiff noticed a motion for attorney fees of $2,138.95 for work performed by his counsel, plus $5,900 in "fees compensating plaintiff for his labor in self-representation...." The motion was based on Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), which allows attorney fees when authorized by contract, and the South Davis Storage Rental Agreement (Rental Agreement) which provided: "If it shall become necessary for either party hereto to engage attorneys to institute legal action for the purpose of enforcing its rights hereunder or for the purpose of defending legal action brought by the other party hereto, the party or parties prevailing in such litigation shall be entitled to receive all costs, expenses and fees (including reasonable attorney's fees) incurred by it in such litigation (including appeals)." The motion also relied on the decision in Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal. 3d 891 [160 Cal. Rptr. 124, 603 P.2d 41] (CLAM). On November 20, 1992, defendant noticed a motion to tax certain of plaintiff's costs. Plaintiff filed his opposition the day before the scheduled hearing, which was untimely under rule 317(a) which requires that papers opposing a motion must be filed five days prior to the hearing. The trial court excused the untimely filings pursuant to Code of Civil Procedure section 473, awarded plaintiff various costs and the attorney fees claimed on behalf of his counsel, and omitted to award any funds for plaintiff's self-representation. Plaintiff appeals. *1290 DISCUSSION I (1) Before considering plaintiff's substantive arguments, we consider his contention the trial court failed to give his fee request due consideration because it ruled on the merits of the request immediately after deciding that plaintiff's untimely filings were excusable under Code of Civil Procedure section 473. The point lacks merit. The trial court received plaintiff's opposition to the motion to tax costs on December 9, 1992, the day before the scheduled hearing. During a conversation with a court employee, plaintiff was informed that the court would not consider the opposition because it was not filed a sufficient number of days prior to the hearing. However, at the hearing, the trial court excused the untimely filing. Nothing in the record suggests the trial court was unfamiliar with plaintiff's untimely submission or was otherwise unprepared to rule on the fee request. Absent any indication to the contrary, we presume the trial court regularly performed its official duty and was sufficiently prepared to rule on the fee request. (Evid. Code, § 664; cf. People v. Wader (1993) 5 Cal. 4th 610, 661 [20 Cal. Rptr. 2d 788, 854 P.2d 80].) II (2a) Plaintiff contends that, as a nonattorney party who successfully represented only himself in civil litigation, he is entitled as a matter of law to fees reasonably compensating him for his efforts at self-representation. We are not persuaded. As the prevailing party, plaintiff was statutorily entitled to recover his costs. (Code Civ. Proc., § 1032.) Recoverable costs include "Attorney fees, when authorized by ... Contract." (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) Because the Rental Agreement listed attorney fees among the recoverable "costs, expenses and fees," plaintiff was entitled to recover his attorney fees as an item of costs. The Rental Agreement provided that attorney fees are recoverable "If it shall become necessary for either party hereto to engage attorneys to institute *1291 legal action...."[1] (Italics added.) Notwithstanding this explicit contractual language, plaintiff claims it is "now the accepted rule in California" that fees need not have been "actually incurred" through the payment of funds to a third party. The point is unavailing. Older California decisions declared the rule that an attorney appearing pro se is not entitled to an award of attorney fees. (E.g., City of Long Beach v. Sten (1929) 206 Cal. 473 [274 P. 968].) However, in Renfrew v. Loysen (1985) 175 Cal. App. 3d 1105, 1107-1110 [222 Cal. Rptr. 413] the court, relying on dictum in CLAM, questioned the soundness of the rule and held that an attorney prosecuting his own contractual claim pro se is entitled to attorney fees under Civil Code section 1717 (pp. 1109-1110; see Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal. App. 4th 129, 131 [11 Cal. Rptr. 2d 638]; Leaf v. City of San Mateo (1984) 150 Cal. App. 3d 1184, 1187-1189 [198 Cal. Rptr. 447].) Plaintiff acknowledges that Renfrew involved an attorney who represented herself in litigation, but claims there is "no well-reasoned basis for a rule which allows awards of contractually-based attorney's fees to a licensed attorney who successfully represents himself but disallows awards of contractually-based attorney's fees to a competent nonattorney who successfully represents only himself." Plaintiff is incorrect. The "well-reasoned basis" for distinguishing between a licensed attorney who represents himself or herself and a nonattorney who does likewise is that the written contract which provides for the fee award specifies that it is an attorney fee. Plaintiff and defendant could have specified that they would be liable for "legal services fees" rather than "attorney fees," had that been their intention, but they did not do so. Plaintiff disagrees, suggesting that the term "attorney's fees" refers to "the activity of performing legal representation" rather than to "the status of the actor as a member of the bar." Plaintiff relies on CLAM and the dissenting opinion of Justice Crosby in Atherton v. Board of Supervisors (1986) 176 Cal. App. 3d 433, 440 [222 Cal. Rptr. 56], but his reliance on these authorities is misplaced. (3) Generally, a party is entitled to attorney fees only if specifically authorized by statute or private agreement. (Code Civ. Proc., § 1021.) There *1292 are, however, three well-established exceptions to the rule: the "common fund," "substantial benefit," and "private attorney general" theories. (CLAM, supra, 25 Cal.3d at p. 906.) (4) Under the common fund theory, "`"one who expends attorneys' fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs."'" (Id. at p. 907, quoting Serrano v. Priest (1977) 20 Cal. 3d 25, 35 [141 Cal. Rptr. 315, 569 P.2d 1303].) CLAM held that in quasi-judicial rate reparation cases the Public Utilities Commission has discretion to award attorney fees under the "common fund" exception, and that where nonattorneys appear before the commission in a representative capacity as permitted by commission rules, nonattorneys may be awarded funds from the common fund. (Id. at pp. 905-909, 913-915.) In his Atherton dissent, Justice Crosby argued that CLAM "considered the term `attorney fees' [as used in Serrano] to be descriptive not of the person who performs a particular service but of the service performed." (176 Cal. App.3d at p. 440 (dis. opn. of Crosby, J.).) (2b) Plaintiff urges us to construe the term "attorney's fees" as used in the Rental Agreement in the manner suggested by Justice Crosby. We decline to do so. The words of a contract are to be understood in their ordinary and popular sense unless used by the parties in some technical sense. (Civ. Code, § 1644; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App. 4th 1338, 1344 [5 Cal. Rptr. 2d 154].) In ordinary usage, an "attorney" is a person "legally appointed to act for another." (American Heritage Dict. (2d college ed.) p. 140.) As stated by the majority in Atherton v. Board of Supervisors, supra, 176 Cal. App. 3d 433, "... the very use of the term `"attorney fees" presupposes that the prevailing party has been represented by an attorney.' [Citation.]" (Id. at pp. 436-437, quoting Pitts v. Vaughn (3d Cir.1982) 679 F.2d 311, 312.) The parties could not have intended the technical meaning suggested by Justice Crosby because the contract was executed in November 1978, prior to the decisions in CLAM and Atherton. Plaintiff claims an interpretation of "attorney's fees" which requires a pro se litigant to pay his opponent's attorney fees if he loses but precludes him from recovering his own self-representation fees if he wins violates the reciprocity provision of Civil Code section 1717 which provides in pertinent part: "(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce the contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract ... shall be entitled to reasonable attorney's fees in addition to other costs." The point is meritless. *1293 Civil Code section 1717 ensures reciprocity by providing that any successful litigant, not just the one named in the contract, can recover fees that have been paid to an attorney. (Xuereb v. Marcus & Millichap, Inc., supra, 3 Cal. App.4th at p. 1342.) Nothing in the statutory language suggests the Legislature intended to establish parity between pro se and represented litigants by entitling the former to legal service fees whenever the contract provides for an award of attorney fees.[2] Plaintiff claims that a construction of the Rental Agreement which precludes an award of legal services fees to a pro se litigant runs afoul of Civil Code section 1649 which provides: "If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." Plaintiff claims defendant "could not reasonably have believed that [plaintiff], as the signatory of the form (i.e. adhesion) contract, understood the attorney's fees clause as precluding [plaintiff's] ability to recover costs, expenses and fees under it in the event [he] could not afford to hire an attorney and had to sue [defendant] himself." We disagree. Defendant reasonably could believe that plaintiff would understand the term "attorney's fees" in its ordinary sense, as "`presuppos[ing] that the prevailing party has been represented by an attorney.'" (Atherton v. Board of Supervisors, supra, 176 Cal. App.3d at p. 436.) Whether plaintiff actually understood the term in that manner is immaterial. (5) Finally, plaintiff claims a favorable construction of the Rental Agreement is required by Civil Code section 1654 which provides in pertinent part: "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." Plaintiff claims the phrase "attorney's fees" must be construed against defendant who selected the standard-form rental agreement. (Citing Graham v. Scissor-Tail, Inc. (1981) 28 Cal. 3d 807 [171 Cal. Rptr. 604, 623 P.2d 165].) However, section 1654 operates only when the uncertainty has not been removed by other rules of construction. Here, the ambiguity is removed by interpreting the phrase "attorney's fees" in its ordinary and popular sense. (Civ. Code, § 1644.) *1294 Were we to adopt the definition of "attorney's fees" suggested by plaintiff, we would effectively revise the parties' contract to create an obligation beyond the scope of the language they selected. "It is widely recognized that the courts are not at liberty to revise an agreement under the guise of construing it. Neither abstract justice nor the rule of liberal interpretation justifies the creation of a contract for the parties which they did not make themselves." (Hinckley v. Bechtel Corp. (1974) 41 Cal. App. 3d 206, 211 [116 Cal. Rptr. 33]; see Diaz v. United California Bank (1977) 71 Cal. App. 3d 161, 172 [139 Cal. Rptr. 314].) "`[T]he courts cannot rewrite a contract to avoid difficulty or hardship. [Citation.]'" (Pacific Architects Collaborative v. State of California (1979) 100 Cal. App. 3d 110, 123 [166 Cal. Rptr. 184], quoting Wyandotte Orchards, Inc. v. Oroville-Wyandotte Irrigation Dist. (1975) 49 Cal. App. 3d 981, 986-987 [123 Cal. Rptr. 135].)[3] III (6) Plaintiff next contends the "cost statute ... as interpreted by the trial court" violates his state and federal due process and equal protection rights because it "permits recoupment of attorney fees to those successful litigants who could afford to hire an attorney (and as interpreted by California appellate courts, by litigants who are themselves attorneys), but denies said fees as costs to successful and competent litigants who could not afford to hire an attorney and had to prosecute their cases themselves." The point has no merit. The denial of self-representation fees was compelled by the parties' private agreement to reimburse attorney fees rather than legal services fees, not by the trial court's interpretation of Code of Civil Procedure section 1033.5. The private act of adopting contractual terms does not constitute state action. It is only when state law encourages the decisionmaking procedure in question or when a statute permits that which had been prohibited by common law, that the decisions of private parties can potentially be considered state actions. (King v. Meese (1987) 43 Cal. 3d 1217, 1228-1230 [240 Cal. Rptr. 829, 743 P.2d 889] [private insurers' setting rates *1295 not state action; no due process violation]; Payne v. Superior Court (1976) 17 Cal. 3d 908, 914 [132 Cal. Rptr. 405, 553 P.2d 565].) State law did not encourage the parties to adopt an attorneys-only limitation, nor was such a limitation forbidden at common law. (King, supra, at p. 1230.) Nevertheless, plaintiff claims equal protection principles apply because the contract is enforceable by the state courts. (Citing Shelley v. Kraemer (1947) 334 U.S. 1 [92 L. Ed. 1161, 68 S. Ct. 836, 3 A.L.R. 2d 441].) Assuming without deciding that plaintiff is correct, his argument fails because attorneys and nonattorneys are not similarly situated. (In re Eric J. (1979) 25 Cal. 3d 522, 530 [159 Cal. Rptr. 317, 601 P.2d 549].) Of necessity, attorneys are subject to a myriad of expenses related to maintaining a license and a practice which nonattorneys do not bear. The parties could rationally conclude that the greater expenses associated with employment of an attorney (or even self-representation by an attorney) warrants recoupment of fees from the losing litigant.[4] IV (7) Defendant requests an award of sanctions on the ground that plaintiff's appeal is frivolous because he brought this appeal "for the sole purpose of harassing the respondent/defendant." Defendant relies on plaintiff's assertion in his verified memorandum of costs that he "persisted in representing [himself] in this case ... in order to hold defendant to account for his wrongful action, in the belief this would deter similarly wrongful conduct by defendant against the many hundreds of present and future tenants of South Davis Storage...." Defendant's reliance on this passage is misplaced because the act of seeking redress of wrongful actions cannot be equated with "harassment" without chilling unreasonably litigants' access to the courts. (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650 [183 Cal. Rptr. 508, 646 P.2d 179].) "The standards for determining whether an appeal is frivolous are contained in In re Marriage of Flaherty (1982) 31 Cal. 3d 637 [183 Cal. Rptr. 508, 646 P.2d 179]. Flaherty provides that an appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit. *1296 (Id. at p. 650.) [¶] Flaherty cautions that `any definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.' (Ibid.)" (Bach v. County of Butte (1989) 215 Cal. App. 3d 294, 310 [263 Cal. Rptr. 565], italics in original.) We will not impose sanctions here. DISPOSITION The judgment is affirmed. Defendant's request for sanctions is denied. Puglia, P.J., and Raye, J., concurred. NOTES [1] Plaintiff contends, without citation of authority, that the phrase "to engage attorneys" is "nothing more than incidental, somewhat carelessly drawn lead-in verbiage in a boilerplate attorney's fee clause, which describe the manner in which litigation is ordinarily, but not always, instituted, i.e., by attorneys." Plaintiff's attempt to avoid the ordinary meaning of the language is not persuasive. (See Civ. Code, § 1644.) [2] Plaintiff claims that, even if he is not entitled to a fee award for his work on the entire case, he is entitled to fees for the arbitration phase because the Legislature has specified that arbitration hearings "shall provide the parties themselves maximum opportunity to participate directly in the resolution of their disputes...." (Code Civ. Proc., § 1141.10, subd. (b)(2).) Plaintiff is wrong. Nothing in this language suggests the Legislature intended to supplant provisions of private agreements requiring the payment of attorney fees with a generalized directive that every prevailing party is entitled to recover legal service fees whether they were represented by an attorney or not. [3] Plaintiff relies on several federal cases which awarded fees to nonattorney parties who prevailed under federal statutes providing for awards of attorney fees. (Cuneo v. Rumsfeld (D.C. Cir.1977) 553 F.2d 1360 [100 App.D.C. 184] [attorney appearing in propria persona]; Quinto v. Legal Times of Washington, Inc. (D.D.C. 1981) 511 F. Supp. 579, Holly v. Acree (D.D.C. 1976) 72 F.R.D. 115, Jones v. United States (D.D.C. 1979) 81 F.R.D. 700, Marschner v. Department of State, etc. (D.Conn. 1979) 470 F. Supp. 196.) Here, however, the attorney fee obligation is circumscribed by the parties' private agreement, not by a federal statute. Nothing in any of the cited cases suggests that the present parties intended the term "attorney's fees" as used in their agreement to encompass fees for legal services provided by nonattorneys. [4] In light of our conclusion it is unnecessary to consider plaintiff's contention that the hours he claimed for labor in self-representation were reasonable.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273666/

991 A.2d 100 (2010) 191 Md. App. 196 Jose Luis RODRIGUEZ v. STATE of Maryland. No. 2852, September Term, 2006. Court of Special Appeals of Maryland. March 24, 2010. *103 Anne K. Olesen, on the brief, Washington, DC, for appellant. *104 Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee. Panel: SALLY D. ADKINS,[*] WOODWARD, WRIGHT, JJ. WOODWARD, J. Jose Luis Rodriguez, appellant, was arrested on June 25, 2006, in connection with two burglaries of Fratelli's Restaurant in Salisbury, Maryland. On December 7, 2006, a jury trial was held in the Circuit Court for Wicomico County, Maryland, before Judge Donald C. Davis. The jury found appellant guilty of two counts each of burglary in the second degree, burglary in the fourth degree, and theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to an aggregate sentence of 33 years in prison, with all but 17 years suspended, and five years probation. Appellant was also ordered to pay restitution to the owners of the restaurant. On appeal, appellant presents four issues[1] for our review, which we have condensed into two questions: I. Did the trial court err in denying the motion to suppress appellant's statement to police? II. Did the trial court err or abuse its discretion in limiting appellant's examination of two witnesses? For the following reasons, we shall affirm the judgments of the circuit court. BACKGROUND In June 2006, Fratelli's Restaurant was burglarized twice. The first burglary occurred early in the morning on June 23, 2006. At approximately 2 a.m., Sergeant Brian Waller of the Salisbury University Police Department reported to the restaurant in response to a security alarm, but did not see anything when he arrived. Nicholas Sakellis, one of the owners of Fratelli's Restaurant, testified that he discovered the restaurant had been burglarized when he arrived at about 9 a.m. He testified that he found the restaurant's side-door locked, an office window broken, a crowbar on the desk in the restaurant's office, and a Fratelli's bank bag missing. According to Sakellis, the missing bank bag contained seven or eight thousand dollars. He testified that nothing else was taken from the restaurant. Eugene Peed, a Salisbury University employee, testified that he saw a dark-colored Honda parked in the back of Fratelli's early in the morning on June 23, 2006. In the early morning hours of June 25, 2006, Fratelli's was burglarized again. *105 Sergeant Waller responded again, along with Officer Kelly Craven of the Salisbury University Police Department. Sergeant Waller testified that they saw a red Oldsmobile Alero parked in the restaurant's parking lot, and it was warm to the touch. He stated that Officer Craven informed him that the car had not been there when she patrolled the area earlier that morning. Both Sergeant Waller and Officer Craven testified that, when they went to inspect Fratelli's, a man ran out of the restaurant and fled. Sergeant Waller chased him on foot, as did Sergeant Anthony Glenn, another police officer who responded to the scene of the burglary. Sergeant Waller and Officer Glenn lost sight of the suspect, searched the Salisbury University campus for forty-five minutes, but did not locate the man. Sergeant Waller testified that he momentarily got a view of the man's side profile, and for the most part, only saw the man's back or his "back side at an angle." He described the man as six feet tall, slenderly built, light-skinned black or dark-skinned white, and wearing a light colored ball cap and a white t-shirt. At about 8:30 a.m., on June 25, appellant was arrested in the Fratelli's parking lot when he arrived in a dark-colored Honda Accord with Corey Clark, Jessica Murphy, and Jose Luis Gonzales Ruperto. Appellant was driving the Honda toward the Alero, which was owned by Clark. Several officers testified that Ruperto was acting "antsy," "nervous, [and] kind of flighty" as he moved "all over the back of the [Honda]" and reached down "underneath the driver's seat." Appellant was described as being out of it, going "in and out of being asleep and awake" while seated in the car. Sergeant Waller testified that at one point, appellant was "laid over the steering wheel making a sound that sounded to me like he was snoring with his eyes shut and drool." Comparing appellant and Ruperto with the suspect he had chased hours before, Sergeant Waller testified that, although Ruperto was a little taller, he could not exclude either of them. During a search of the Honda, officers found a handgun under the driver's seat and tools that matched the color and brand of the crowbar that was left at Fratelli's following the first burglary. The Alero was also searched; in the glove compartment officers found appellant's wallet containing his Maryland driver's license, social security card, and $810 in cash. Officer Bobbie Jo Donoway drove appellant to the Sheriff's Office following his arrest. Officer Donoway testified that, during the transport, Mr. Rodriguez went "from one extreme to the other;" he was "completely enraged" one moment and then "fall[ing] asleep" the next. According to Officer Donoway, appellant's "eyes were extremely red, and he was very upset." Officer Donoway testified that she asked him a series of questions in an effort "[t]o calm him down and to make sure that he was, in fact, okay." She testified that, at one point appellant said: "I can't keep doing this, I'm already in trouble, I'm going to jail, I did it." At appellant's trial, on December 7, 2006, Clark and Murphy testified for the State. Clark stated that she had known appellant for a couple months, and they had spent a lot of time together. In the beginning her relationship with appellant was "sexual," but then they were "just friends." Clark testified that she would use heroin and crack cocaine with appellant. Clark stated that on the evening of June 24, she and appellant were at "[s]ome house over on the west side" with Murphy, Ruperto, and a Puerto Rican man. According to Clark, she, Murphy, appellant, and Ruperto were all "getting high" over *106 the course of the next 12 hours. Clark testified that appellant left the house around 3 a.m. on June 25 and returned a couple hours later without her car. Clark also testified that she remained in one room the entire night with Murphy and Ruperto, and was "awake that whole time." Clark also testified that a few days before June 25, she saw a bank bag in appellant's car and appellant "all of a sudden" was in possession of a large sum of money that he kept in stacks folded in a towel in his closet. Murphy testified that on the evening of June 24, she, Clark, appellant, Ruperto, and some other men were at a house on the west-side. Murphy admitted that she, Clark, appellant and Ruperto were doing drugs and engaging in sexual activities. Murphy stated that appellant left the house sometime in the early morning for "maybe an hour and 45 minutes." She only learned that appellant had left when she noticed that Clark's car was not outside the house. Murphy testified, as did Clark, that later in the morning of June 25, appellant drove her, Clark, and Ruperto to Fratelli's restaurant to pick up Clark's car. Appellant testified in his own defense. According to appellant, on the evening of June 24, 2006, he and Ruperto rode in appellant's Honda to meet Clark and Murphy in the parking lot of Fratelli's Restaurant. Appellant testified that Clark and Murphy were in Clark's Alero, and the four agreed to leave the Alero at Fratelli's so that they could ride in one car to buy drugs for the night. Appellant testified that they then drove to a house "just to have sex and use some drugs." Appellant testified that the four left the house in his Honda and returned to Fratelli's parking lot to pick up Clark's car. Finally, appellant stated that the cash in his wallet was part of the $2000 that his parents had sent him to rent an apartment. The defense also called Ruperto to testify. Outside the presence of the jury, Ruperto invoked his Fifth Amendment privilege against self-incrimination when asked about the burglaries. With the jury present, Ruperto was questioned about the gun found under the driver's seat of appellant's Honda and invoked his Fifth Amendment privilege. Following Ruperto's testimony, Deputy Mark Walker took the stand. Deputy Walker testified that Ruperto admitted to him that the gun was his. Deputy Walker explained that, after Ruperto testified at appellant's trial, Ruperto was taken to the holding area. At some time thereafter, Ruperto started beating on the holding cell door. Deputy Walker asked him if there was something wrong. Ruperto responded, in broken English, "gun mine, charges mine, he's innocent." At the conclusion of trial on December 7, 2006, the jury returned a verdict, finding appellant guilty of two counts of burglary in the second degree, two counts of burglary in the fourth degree, and two counts of theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to 15 years' in prison with all but seven years suspended on one count of second degree burglary, to a consecutive 15 years' imprisonment with all but seven years suspended on the other count of second degree burglary, and to a consecutive three years' incarceration on the hand gun charge. Appellant was placed on five years' probation upon release from incarceration. The remaining convictions merged for sentencing purposes. Appellant was also ordered to pay restitution to the owners of Fratelli's Restaurant. On December 26, 2006, appellant timely noted this appeal. *107 We will set forth additional facts and proceedings below as necessary to discuss the questions presented. DISCUSSION I. Motions Hearing On December 1, 2006, at a motions hearing, the defense sought to suppress statements made by appellant to Officer Donoway while appellant was being transported to the Sheriff's Office in her patrol vehicle following his arrest. The defense moved to exclude appellant's statements, arguing that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and additionally were not voluntarily given. Officer Donoway was the only witness who testified at the suppression hearing. Her testimony is set forth in its entirety: [PROSECUTOR]: State[] your name and agency. [WITNESS]: Deputy [] Donoway with the Wicomico County Sheriff's Office, currently assigned to the SRO Division. [PROSECUTOR]: On June 25th of 2006 at approximately 9:46 a.m., were you working at the Sheriff's Office? [WITNESS]: Yes, I was. [PROSECUTOR]: What was your assignment at that time? [WITNESS]: I was actually assigned to the airport duty when I was called to a different location to transport a subject for detectives at our agency. [PROSECUTOR]: What location were you called to? [WITNESS]: 306 South Salisbury Boulevard. [PROSECUTOR]: Is that Fratelli's Restaurant? [WITNESS]: Yes, it is, yes. [PROSECUTOR]: When you went to that location, did you make contact with someone? [WITNESS]: I did. I made contact with First Sergeant Tim Robinson who advised me that I needed to transport a subject for the detectives to the Sheriff's Office. [PROSECUTOR]: Had you had any involvement in the investigation of that case? [WITNESS]: I did not. I [was] working the airport prior to the transport. [PROSECUTOR]: Did you have any involvement in the investigation after the transport? [WITNESS]: No, I didn't. [PROSECUTOR]: Who was the subject that Sergeant Robinson asked you to transport? [WITNESS]: He didn't actually advise me of the subject's name prior to the transport. I found out later that it was Jose Luis Rodriguez. [PROSECUTOR]: Do you see that person in the courtroom? [WITNESS]: Yes, sitting at the defense table. [PROSECUTOR]: And the record reflect she identified [appellant]. Were you in a marked police car? [WITNESS]: Yes, I was. [PROSECUTOR]: Where did you place [appellant]? [WITNESS]: In the front seat passenger's side. [PROSECUTOR]: Was he in handcuffs? [WITNESS]: Yes, he was. [PROSECUTOR]: Do you have any information regarding whether he was advised of his Miranda rights prior to transport? [WITNESS]: I do not. *108 [PROSECUTOR]: Did you advise him of Miranda rights before transport[?] [WITNESS]: I did not. I did not place him under arrest. [PROSECUTOR]: During the transport, were you intending to interrogate him for investigative purposes? [WITNESS]: No, I was [not]. [PROSECUTOR]: Describe what happened during the transport, please. [WITNESS]: Actually, the other officers placed him in my patrol vehicle. When we were in route back [appellant] became very angry and upset using profanity. He was enraged that he was being taken into custody. He went from moments of complete outrage[] to that he seemed like he was going to pass out. I kept asking [appellant], are you okay? He was mumbling things. Sometimes he used profanity and I couldn't understand him. One of the things he said to me was I can't do this anymore, I have to stop this. [Appellant] then slumped down into the seat and his eyes were extremely red, and I was concerned that something was wrong with him. So I asked him, again, are you okay? [Appellant] replied, yes. I asked [appellant]—what [] lead to this was that he was upset. He said that he didn't do anything, that he was going to go to jail. And I asked [appellant], I said, have you been arrested before because, you know, that's something to consider if you haven't been arrested before. I don't know why you are so upset. He had made the comment, yes, for taking a car. I can't keep doing this. I'm already in trouble. I'm going to jail. I did it. After that, I placed [appellant] into a cell at the Sheriff's Department and I let detectives know that he was there, and he was fine, and I let them know some of the comments that he had made because I wasn't familiar with [appellant] or anything that was going on at Fratelli's, but obviously, he was upset about something. [PROSECUTOR]: What was your purpose in speaking to [appellant] during the transport? [WITNESS]: I was concerned. Like I said, he went from moments of outrage to anger where I was trying to calm him down during the transport to where he acted like he was going to pass out. So I didn't know if he was okay. If I needed to take him to the hospital. So I wanted the detectives to also know that he went from one extreme to the other, you know, in case there was an episode with them when they actually came back and spoke to him. [PROSECUTOR]: What was your purpose in asking, have you been arrested before? [WITNESS]: I was trying to calm the subject down. Obviously, he did not want to go to jail. I was trying to make him feel better. If he didn't have a record, you know, maybe things would work out better for him. [PROSECUTOR]: Was your purpose in speaking to [appellant] to obtain incriminating information, statements from him? [WITNESS]: No, it was not. [PROSECUTOR]: Did he appear to you to be under the influence of drugs or alcohol? [WITNESS]: I'm not sure if he was under the influence of drugs or alcohol or if he was suffering from sleep deprivation. *109 I'm not sure. He was not acting in his right mind, no. [PROSECUTOR]: Did you make any threats to [appellant] before, during transport? [WITNESS]: No, I did not. [PROSECUTOR]: Did you make any promises to him to get him to speak to you? [WITNESS]: No, I did not. [PROSECUTOR]: Apply any coercion to him whatsoever? [WITNESS]: No, I did not. [PROSECUTOR]: Thank you. Your witness. CROSS-EXAMINATION [DEFENSE COUNSEL]: You indicated, and these are my words, you indicated that he was out of it. Is that a fair characterization of what was [going] on? [WITNESS]: Yes. [DEFENSE COUNSEL]: And he was coming back into the ability to converse with you and then he didn't have the ability to converse with you, is that correct? [WITNESS]: He went from using profanity and cussing me out and every single law enforcement officer out that was at the scene to not talking and acting like he was going to go to sleep. Those are the two extremes that he was going back and forth from. [DEFENSE COUNSEL]: The particular statement that I'm concerned about is the statement where at the end of the statement is, I did it. That was a statement that he made immediately following your question, have you ever been arrested before, is that correct? [WITNESS]: Actually, he made other comments before he said, I did it. [DEFENSE COUNSEL]: I understand that, but the question that you offered to him most recent in time prior to him saying I did it was have you ever been arrested before, is that correct? [WITNESS]: To the best of my knowledge, yes. [DEFENSE COUNSEL]: And when you asked him have you ever been arrested before, he answered the question that he had? [WITNESS]: He didn't say, yes, I had. He said, I keep doing this. I'm already in trouble. I'm going to jail. I did it. He did not say he had actually been in jail, no. [DEFENSE COUNSEL]: Did you record that statement in some way in terms of notes or— [WITNESS]: Yes. Actually when I came back to the Sheriff's Department, I spoke to the detectives, and they asked me to write a supplement in which I did. [DEFENSE COUNSEL]: Okay. The questions, are you okay, were those questions that were out to [appellant] before, after, or both before and after the point in time that you asked the question, have you ever been arrested? [WITNESS]: During the entire transport, I kept asking him if he was okay. [DEFENSE COUNSEL]: So you asked him that question after you asked him, have you ever been arrested? [WITNESS]: Yes. I asked him if he was okay when I placed him in the cell. [DEFENSE COUNSEL]: Okay. How many times did you ask him that question? [WITNESS]: I can't recall. *110 [DEFENSE COUNSEL]: The extent of your interaction with [appellant] lasted just during the period of time of transport in the car? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Then you placed him in a cell? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Any other law enforcement officers in the car during the time of transport? [WITNESS]: No, sir. [DEFENSE COUNSEL]: I don't have any further questions of this witness, Your Honor. (Emphasis added). In denying defense counsel's motion to suppress, the trial court stated: Well, here, I agree with [defense counsel] at least in part. There, obviously, is no question that [appellant] was in custody at the time of these particular statements, and it's clear also that there was interrogation in the sense that there was a question asked. But, and in the sense that any question, I guess, could be by definition an interrogation, but within the context here, interrogation refers to either expressed questioning or its functional equivalent or anything else, any other actions or words on the part of law enforcement that the police should know are reasonably likely to elicit an incriminating response from a defendant. In this particular case because [appellant] was acting in what the officer determined to be an—I will describe it— as a strange way, having personality swings from being enraged and cursing to then seeming to go to sleep or perhaps be on the threshold of passing out, she asked the defendant on several occasion[s] if he was all right, and at least a number of those occasions would indicate, would respond not necessarily, as I understand it with saying he was all right, but rather talking about his situation that he can't do this anymore, things of that sort, and there came a time when in what the officer determined to be a, would be perhaps a question that might permit her to calm [appellant] down asked if he had been arrested before. And if that's obviously a question. Is it a question that either this officer or a reasonable officer would ha[ve] reason to believe or know was reasonably likely to elicit an incriminating response? Well, if saying, Yes, I have been arrested, I have been arrested before would be incriminating, then certainly it's interrogation within the meaning of these rules. But whether or not he has been arrested before, it would seem to me is irrelevant to and is certainly not inculpatory so far as this particular case is concerned because what is inculpatory here relates to the circumstances and facts of this case, not some other case which may have—for which he may have been arrested. And for [appellant] to respond to that, yes, I did it, I'm going to jail referring to this case is not a response that I think a reasonable officer or this officer would have occasion to reasonably expect, so whether or not he had been given Miranda warnings, I think, is immaterial with respect to the question of whether or not there was interrogation within the Supreme Court and Maryland decisions relating to interrogation without the benefit of Miranda. As to whether or not the statement was voluntary, of course, that decision is made based on the totality of the circumstances. *111 It is the State's burden of proof to establish beyond a reasonable doubt, but I think it's perhaps—there is Judge Moylan indicated that when the issue is voluntariness, the failure of the defendant to testify almost forecloses any chance of prevailing. And under the officer['s] testimony, clearly, she considered [appellant] to be acting in a strange way because of mood swings and was concerned enough with that, that she asked him on a number of occasions if he was all right. On the other hand, it's obvious that she was satisfied with his responses to that extent, because at least from the evidence, she took him on to the Sheriff's Department or to the Detention Center, placed him in lockup there rather than taking him to the hospital which she made those inquiries, she said, to determine whether or not she should divert to the hospital. No evidence of threats, promises, coercion and anything else, and based on the totality of the circumstances, I'm satisfied that the statement was voluntary as well, so I will deny the motion. (Emphasis added). A. Standard of Review When reviewing a circuit court's disposition of a motion to suppress evidence, we "consider only the facts and information contained in the record of the suppression hearing." Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129 (2007). "`[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,'" in this case, the State. Owens v. State, 399 Md. 388, 403, 924 A.2d 1072 (2007) (quoting State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003)). We defer to the trial court's factual findings and uphold them unless they are shown to be clearly erroneous. Owens, 399 Md. at 403, 924 A.2d 1072. We also make our "`own independent constitutional appraisal,'" by reviewing the relevant law and applying it to the facts and circumstances of this particular case. Longshore, 399 Md. at 499, 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457, 682 A.2d 248 (1996)). B. Miranda Appellant first argues that the trial court erred by not granting defense counsel's motion to suppress the statements Officer Donoway obtained from appellant. Specifically, appellant contends that Officer Donoway's questioning of appellant constituted custodial interrogation and was not subject to an exception from Miranda for questions relating to routine booking or public safety, "as it did not occur during routine booking and was not justified by an emergency." Further, appellant argues that Officer Donoway's questions were the functional equivalent of custodial interrogation, because she should have known that her questions were likely to elicit an incriminating statement from appellant. Finally, appellant contends that the trial court improperly interpreted Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), when it based its decision "on whether a direct response to the question `Have you ever been arrested before?' would be incriminating." The proper inquiry under Innis, appellant asserts, was "whether, under the totality of the circumstances, Officer Donoway's questions were reasonably likely to elicit an incriminating response, not whether a direct response to her questions would have been incriminating." (Emphasis in original). *112 According to appellant, a correct application of Innis would have led the court to the conclusion that, "[g]iven [appellant's] impaired mental condition, his emotional volatility, and his demonstrated tendency to ramble in response to the officer's initial questions, Officer Donoway should have known that continued questioning was likely to elicit an incriminating response." We disagree and explain. In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S.Ct. 1602. Custodial interrogation refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. When a suspect is in custody, "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. A person may waive the effectuation of his or her Miranda rights, "provided the waiver is made voluntarily, knowingly and intelligently." Id. It is well established that Miranda warnings are not required in the absence of interrogation. Innis, 446 U.S. at 300, 100 S.Ct. 1682 ("It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation."); see also Ashford v. State, 147 Md.App. 1, 37, 807 A.2d 732 (2002). In Innis, the Supreme Court stated that the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 446 U.S. at 301, 100 S.Ct. 1682 (footnote omitted). In other words, custodial interrogation involves "either express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. 1682. Appellant's initial argument focuses on the phrase "express questioning" in Innis. Appellant puts forth a two-part analysis. First, appellant contends that Officer Donoway's questioning of appellant constituted "express questioning," because she directly questioned appellant when appellant was in custody. Second, appellant argues that the only exceptions to the "express questioning" test of Innis are where the officer's questions relate to routine booking or public safety. Appellant, in effect, contends that any question posed by a law enforcement officer to a suspect in custody, other than a question relating to routine booking or public safety, constitutes "express questioning," under Innis and thus is violative of Miranda. The legal basis for appellant's argument was rejected by the Court of Appeals in the recent case of Prioleau v. State, 411 Md. 629, 984 A.2d 851 (2009). In Prioleau, undercover detectives observed the petitioner enter a home at 1610 Regester Street, emerge with a bag of suspected cocaine, and hand the bag to Keith Evans, who strolled back and forth on Regester Street engaging in "hand to hand transactions" with individuals who approached. Id. at 633, 984 A.2d 851. The police then arrested Evans and escorted him into the house at 1610 Regester Street, where numerous torn clear plastic bags were found *113 on the floor, indicating drug activity in the house. Id. at 634, 984 A.2d 851. The petitioner was also arrested, driven to 1610 Regester Street, and was walked up to the entrance of the house by the arresting officer. Id. When the petitioner reached the front door, a detective was standing there. Id. The detective said to the petitioner: "What's up, Maurice?" Id. The petitioner then said: "I'm not going in that house. I've never been in that house." Id. The Court of Appeals held that the above statements by the petitioner were not the product of either actual interrogation or its functional equivalent. Id. at 639, 984 A.2d 851. The Court began its analysis by observing that it is clear that (1) Petitioner was "in custody" when he made the inculpatory statement, and (2) none of the exceptions to the requirements of Miranda v. Arizona are applicable. Petitioner was therefore entitled to suppression of the statement at issue if that statement resulted from either actual interrogation or the functional equivalent of interrogation. Prioleau, 411 Md. at 638-39, 984 A.2d 851 (emphasis in original) (footnotes omitted). In addressing the issue of whether "What's up, Maurice?" constituted "actual interrogation," the Court stated that "it is very well settled that not every question constitutes `interrogation' of a suspect who is in custody when the question is asked." Id. at 639, 984 A.2d 851. The Court quoted with approval the case of Johnson v. State, 269 Ind. 370, 380 N.E.2d 1236, 1240 (1978), wherein the Supreme Court of Indiana stated: "The term `interrogation' has been defined as a process of questioning by law enforcement officials which lends itself to obtaining incriminating statements. Not every statement uttered by a police officer which is punctuated with a question mark will necessarily constitute an interrogation.... Rather, it is necessary to view the statement in the context in which it was made." Prioleau, 411 Md. at 639, 984 A.2d 851 (citation omitted) (alteration in original). The Court of Appeals went on to articulate the type of questions that constitute "actual interrogation" as those "directed to the issue of whether a suspect who is in custody has engaged in and/or has knowledge of criminal activity." Id. Finally, the Court cited to its opinion in Hughes v. State, 346 Md. 80, 95-96, 695 A.2d 132 (1997), for the principle that "`the critical inquiry is whether the police officer, based on the totality of the circumstances, knew or should have known that the question was reasonably likely to elicit an incriminating response.'" Prioleau, 411 Md. at 643, 984 A.2d 851. The Court concluded that the question "What's up, Maurice?" did not constitute actual or express interrogation contemplated by Miranda. Id. at 643, 645-46, 984 A.2d 851. In Smith v. State, 186 Md.App. 498, 974 A.2d 991, cert. granted, 410 Md. 702, 980 A.2d 482 (2009), Judge Charles Moylan, Jr. reached a similar conclusion in his scholarly synthesis of Miranda procedures and Miranda applicability rules. Judge Moylan wrote: What Precisely is Miranda Interrogation? In its simplest form, interrogation is an easy concept to grasp. It is a police officer asking a question of a suspect about the suspect's involvement in a crime. At the edges, however, the concept can get a little blurry. It is not always an orchestrated set of alternating questions and answers. Every actual question, moreover, is not necessarily followed by a question mark. *114 It has been the more shadowy concept of the functional equivalent of interrogation that Miranda has had to come to grips with in terms of its applicability. Id. at 540-41, 974 A.2d 991. Therefore, "express questioning" under Innis refers to the commonly understood concept of interrogation, namely, a law enforcement officer asking a question of a suspect in custody about the suspect's involvement in a crime or where, under the totality of the circumstances, the officer knew or should have known that the question was reasonably likely to elicit an incriminating response.[2] In the case sub judice, none of Officer Donoway's questions asked appellant about his involvement in a crime. Officer Donoway's repeated questions, "are you okay?," sought information about appellant's physical well-being. Officer Donoway's somewhat garbled question, "I asked [appellant]—what lead to this was that he was upset," was not an inquiry into appellant's involvement in a crime. Finally, the key question of "have you ever been arrested before," was directed toward appellant's prior contact with the criminal justice system and not with appellant's involvement in an earlier crime. Nevertheless, appellant argues that Officer Donoway's questioning "was still interrogation because Officer Donoway should have known that her questions were likely to elicit an incriminating response from [appellant]." We disagree. In Hughes, the Court of Appeals stated that the "[a]ssessment of the likelihood that an otherwise routine question will evoke an incriminating response requires consideration of the totality of the circumstances in each case, with consideration given to the context in which the question is asked." 346 Md. at 95, 695 A.2d 132. The intent of the police may be helpful in the analysis, but it is not dispositive. See State v. Conover, 312 Md. 33, 44 n. 6, 537 A.2d 1167 (1988); Innis, 446 U.S. at 301 n. 7, 100 S.Ct. 1682 ("This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response."). The police, however, "cannot be held accountable for the unforeseen results of their words or actions." Innis, 446 U.S. at 302, 100 S.Ct. 1682. Here, the question that produced appellant's incriminating response was "have you ever been arrested before." Appellant asks us to inquire, "whether, under the totality of the circumstances, Officer Donoway's questions were reasonably likely to elicit an incriminating response, not whether a direct response to her question[] would have been incriminating." The problem with this contention is that at the motions hearing defense counsel argued only that "an objective officer under the circumstances might expect that a question dealing with [appellant's] prior criminal behavior ... might elicit an incriminating response." (Emphasis added). Defense counsel did not claim that any other question, alone or in combination, played a role in causing the incriminating response. Thus appellant's challenge to the other questions posed by Officer Donoway has not been preserved for appellate review. See Maryland Rule 8-131(a). Nevertheless, we will consider all of the questions posed by Officer Donoway to appellant as a part of our consideration of the totality of the circumstances. *115 Officer Donoway was not involved in the investigation of the robberies at Fratelli's restaurant either before or after the transport of appellant to the Sheriff's Office. She was working at the airport when she was told to transport "a subject" to the Sheriff's Office. Officer Donoway did not know appellant's name and was not familiar "with [appellant] or anything that was going on at Fratelli's." During the transport, appellant displayed extreme mood swings—he "became very angry and upset using profanity" and then "he seemed like he was going to pass out." He kept going back and forth between the extremes. When appellant acted like he was going to pass out, Officer Donoway asked him if he was okay. The purpose of the question was to determine if Officer Donoway needed to take him to the hospital. Appellant answered "yes" (he was okay), and when they arrived at the Sheriff's Office, Officer Donoway told the detectives that appellant "was fine." During the times that appellant was angry and using profanity, Officer Donoway tried to calm him down. She asked appellant, in effect, why was he upset. Appellant answered that he did not do anything and that he was going to jail. Officer Donoway then asked him, "I said, have you ever been arrested before because, you know, that's something to consider if you haven't been arrested before." (Emphasis added). Officer Donoway testified that she was trying to make appellant "feel better," because if he did not have a record, "maybe things would work out better for him." Appellant responded, "yes, for taking a car. I can't keep doing this. I'm already in trouble. I'm going to jail. I did it." It is clear that Officer Donoway's only job was to transport appellant to the Sheriff's Office; she played no role in the criminal investigation of the robberies at Fratelli's restaurant. During the transport, Officer Donoway was called upon to respond to appellant's behavior. Her questions were directed to finding out if appellant was okay when he appeared to pass out or to calming him down when he was angry and using profanity. Officer Donoway testified that she had no intention of interrogating appellant during the transport for investigative purposes and that her purpose in speaking to appellant was not to obtain incriminating statements from him. Regarding the precise question at issue, "have you ever been arrested before," we agree with the trial court that the question was "irrelevant" to the criminal investigation of the instant case, and that appellant's initial answer, "yes, for taking a car," was "certainly not inculpatory so far as this particular case is concerned because what is inculpatory here relates to the circumstances and facts of this case, not some other case ... for which he may have been arrested." After having answered Officer Donoway's question appropriately, appellant proceeded to spontaneously make four statements having nothing to do with the question, the last of which was "I did it." After a consideration of the totality of the circumstances surrounding the transport of appellant to the Sheriff's Office by Officer Donoway, we cannot conclude that Officer Donoway should have known that her question to appellant, "have you ever been arrested before?," was "reasonably likely to elicit an incriminating response" from him. See Innis, 446 U.S. at 301, 100 S.Ct. 1682. Appellant's response, "I'm already in trouble. I'm going to jail. I did it," was "a classic `blurt,' to which the protections of Miranda do not apply." Prioleau v. State, 179 Md.App. 19, 30, 943 A.2d 696 (2008), aff'd, 411 Md. 629, 984 A.2d 851 (2009). Accordingly, we hold that *116 appellant's inculpatory statement did not result from "express questioning" in violation of Miranda. C. Voluntariness As a second basis for error, appellant argues that his statements to Officer Donoway were not voluntary, "because his mental impairment prevented him from knowing or understanding what he was saying." Appellant further complains that "[t]he State offered no other testimony to prove voluntariness," and the court erred when it based its decision regarding whether appellant's statements were voluntarily given "on Officer Donoway's conduct, rather than on [appellant's] demonstrated mental impairment." Appellant concludes that, because "[n]o other evidence supported the trial court's voluntariness finding[,] ... the statements should have been suppressed." Appellant's argument is without merit. When a defendant properly challenges the voluntariness of a confession or inculpatory statement in a pre-trial motion, the burden is on the State to affirmatively show voluntariness by a preponderance of the evidence. Harper v. State, 162 Md.App. 55, 72, 873 A.2d 395 (2005). "`The trial court's determination regarding whether a confession was made voluntarily is a mixed question of law and fact.'" Knight v. State, 381 Md. 517, 535, 850 A.2d 1179 (2004) (quoting Winder v. State, 362 Md. 275, 310-11, 765 A.2d 97 (2001)). We review the trial judge's ultimate decision on the issue of voluntariness de novo. Id. "We do not look, however, at the trial record for additional information, nor do we engage in de novo fact-finding." Id. In order to be deemed voluntary, a confession must satisfy the mandates of the State and Federal Constitutional provisions as well as Maryland non-constitutional law. Id. at 532, 850 A.2d 1179. The "`totality of the circumstances' [] governs the analysis of voluntariness under the State and Federal Constitutional provisions.'" Griner v. State, 168 Md. App. 714, 734, 899 A.2d 189 (2006) (quoting Burch v. State, 346 Md. 253, 266, 696 A.2d 443 (1997)). The test requires us to "look to all of the elements of the interrogation to determine whether a suspect's confession was given freely to the police through the exercise of free will or was coerced through the use of improper means. On the non-exhaustive list of factors we consider are the length of the interrogation, the manner in which it was conducted, the number of police officers present throughout the interrogation, and the age, education and experience of the suspect." Harper, 162 Md.App. at 72-73, 873 A.2d 395 (quoting Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001)). Thus, "[o]rdinarily, the voluntariness of the defendant's inculpatory statement is determined based on a totality of the circumstances test." Harper, 162 Md.App. at 72, 873 A.2d 395. Maryland non-constitutional law, however, "`requires that "no confession or other significantly incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary."'" Harper, 162 Md.App. at 73, 873 A.2d 395 (quoting Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001)). Under Maryland non-constitutional law a confession is involuntary when a defendant "is so mentally impaired that he does not know or understand what he is saying," or when the confession "is induced by force, undue influence, improper promises, *117 or threats." Hoey v. State, 311 Md. 473, 482-83, 536 A.2d 622 (1988). There is no evidence of force, threats, improper promises, or coercion of any kind. Appellant only challenges his statements under Maryland non-constitutional law because he claims that his mental impairment prevented him from knowing or understanding what he said. Accordingly, the "`crucial question'" becomes "`whether [appellant's] disclosure[] to the police w[as] freely and voluntarily made at a time when he knew and understood what he was saying.'" Id. at 482, 536 A.2d 622 (quoting Wiggins v. State, 235 Md. 97, 102, 200 A.2d 683 (1964)). "`Whether [appellant] was under the influence of a drug at the time of giving the incriminating statement is a factor to be considered in determining the voluntariness of that statement.'" Harper, 162 Md.App. at 83, 873 A.2d 395 (quoting Hof v. State, 337 Md. 581, 620, 655 A.2d 370 (1995)). In the instant case, Officer Donoway acknowledged that appellant "went from moments of outrage to anger ... to where he acted like he was going to pass out" and that appellant "was not acting in his right mind." Nevertheless, appellant responded directly and appropriately to Officer Donoway's questions. Appellant answered "yes" to the question, "are you okay?" When asked whether he had been arrested before, appellant answered "yes, for taking a car." Appellant's responses to Officer Donoway's questions convinced Officer Donoway that appellant was okay and that he was not in such a condition that he had to be taken to the hospital. In fact, upon arriving at the Sheriff's Office, Officer Donoway informed the detectives that appellant "was fine." Accordingly, we conclude that the State met its burden of proving, by a preponderance of the evidence, that appellant was not so mentally impaired that he did not know what he was saying or understand what was being said to him. When considering the totality of the circumstances under the State and Federal Constitutional provisions, we also conclude that appellant's statements were voluntary. Appellant was being transported to the Sheriff's Office by one officer who had no knowledge of appellant or the crime under investigation; appellant had been arrested before and thus was familiar with the process; he correctly answered the questions posed to him and his answers demonstrated that he understood the severity and consequences of his actions; and Officer Donoway was not forceful or vociferous, but rather attempted to ease some of appellant's concerns and calm him down. Based on the totality of the circumstances, we are persuaded that appellant freely confessed to Officer Donoway that he committed the burglary. Therefore, the motions judge did not err in denying appellant's motion to suppress. II. Examination of Two Witnesses Appellant argues that the trial court "infringed on [appellant's] right to present a full defense by not allowing him to introduce evidence implicating third-party guilt," which was the defense theory at trial. First, appellant contends that the court improperly limited defense counsel's examination of Sakellis regarding whether he ever suspected that Saul Hernandez, a former employee of Fratelli's, committed the burglary, when there was "a police report recording Sakellis's suspicions." Appellant insists that the excluded evidence was more than a "blind allegation," and its weight "was for the jury to decide." Second, appellant argues that "the trial court abused its discretion by not allowing *118 the defense to question [Ruperto] about the burglaries," when there was evidence that Ruperto "was a plausible alternative suspect in the burglaries." Appellant also asserts that the court's erroneous exclusion of evidence implicating Hernandez and demonstrating Ruperto's involvement in the burglaries was not harmless beyond a reasonable doubt. We disagree and explain. A. Standard of Review "The Confrontation Clause of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights guarantee a defendant in a criminal case the right to confront the witnesses against him." Ebb v. State, 341 Md. 578, 587, 671 A.2d 974 (1996). This right, however, is limited by the trial court's discretion "to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. (internal quotations omitted). Therefore, "the scope of examination of witnesses at trial is a matter left largely to the discretion of the trial judge and no error will be recognized unless there is clear abuse of discretion." Thomas v. State, 143 Md.App. 97, 110, 792 A.2d 368 (internal quotations omitted), cert. denied, 369 Md. 573, 801 A.2d 1033 (2002). Limitation of cross-examination should not occur, however, until after the defendant has reached his constitutionally required threshold level of inquiry. Stated another way, although the scope of cross-examination is generally limited to the subjects raised on direct examination, within that limit a defendant should be free to cross-examine in order to elucidate, modify, explain, contradict, or rebut testimony given in chief. It is also proper to cross-examine as to facts or circumstances inconsistent with testimony, and to bring out the relevant remainder or whole of any conversation, transaction, or statement brought out on direct questioning. Finally, and particularly pertinent to the instant case, one should be allowed to cross-examine in order to determine the reasons for acts or statements referred to on direct examination. Smallwood v. State, 320 Md. 300, 307, 577 A.2d 356 (1990) (citations and internal quotations omitted). The trial court thus conducts a "balancing test:" the trial court "must allow a defendant wide latitude to cross-examine a witness as to bias or prejudices, but the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder's confusion." Id. at 307-08, 577 A.2d 356 (citation omitted). B. Sakellis In his brief, appellant states that, immediately following the first burglary, Sakellis told police that he suspected that Hernandez had committed the first burglary. Appellant now complains that the court should have allowed him to question Sakellis regarding this statement and present the police report to the jury. At trial, defense counsel inquired into this matter during the cross-examination of Sakellis. Defense counsel asked Sakellis whether anyone by the name of Saul Hernandez had ever worked for him, and Sakellis responded, "No." Defense counsel pressed the issue further and the following ensued: [DEFENSE COUNSEL]: Your testimony today is that you didn't speak to law enforcement officers on the 23rd day of June and told them that you *119 suspected that Saul Hernandez had committed the burglary? [PROSECUTOR]: Objection. Move to strike. THE COURT: Basis? [PROSECUTOR]: It's not relevant. THE COURT: All right. [DEFENSE COUNSEL]: Your Honor, my theory is that someone other than [appellant] committed this crime. One of those suspects who could have been considered— [PROSECUTOR]: Objection. [DEFENSE COUNSEL]: Permission to approach? THE COURT: All right. (Whereupon, counsel approached the bench, and the following ensued.) [DEFENSE COUNSEL]: I have in my possession a report that was generated by a law enforcement officer on the 23rd day of June that indicates that [] Sakellis told that officer that he suspected that person— [PROSECUTOR]: Keep your voice down, please. [DEFENSE COUNSEL]: A person by the name of Saul Hernandez who had previously worked for Fratelli's had committed this crime. [PROSECUTOR]: It's based on pure blind speculation. Absolutely no proof whatsoever to make that allegation even if he did. THE COURT: Yes. I will sustain the objection. Later in the trial, defense counsel asked the trial court to revisit this issue: [DEFENSE COUNSEL]: Had I been permitted to, I would ask some [] further follow-up questions on a subject of [] Hernandez based on a report I received. My understanding is that [] Sakellis told the police officer who responded on the date of the first burglary that he believed that [Hernandez], a Hispanic employee who had worked for him for a few days had committed this crime. [] Sakellis indicated that he had employee papers with [Hernandez's] information on his desk and that Sakellis said that [Hernandez's] employee information was also missing. * * * [PROSECUTOR]: Also, I want on the record, Your Honor, that he gave absolutely no foundation for drawing that conclusion. THE COURT: Well— [PROSECUTOR]: And has testified here today that nothing else was missing except the money. THE COURT: Well, I understand. It seems to me ..., what is the purpose for which you want to pursue this line of inquiry? [DEFENSE COUNSEL]: I just want to develop as many plausible alternative suspects as I can for [appellant's] benefit. We have fingerprint testing that was available in the sense that there were fingerprints suitable for comparison found that were not compared to anyone beside my client under circumstances where []. Sakellis believed that this person may have been involved because certain items were taken during the course of the burglary. I believe that he is a plausible alternative suspect who should have been investigated, was not investigated, and is to the detriment to my client, that's the only reason I am making an issue out of it. THE COURT: All right. *120 You are not seeking to ask these questions from the impeachment standpoint. You are not trying to impeach [] Sakellis, but only to show that there is another plausible suspect who was not— [DEFENSE COUNSEL]: That's the purpose, yes. THE COURT: Okay. All right. Well, I will sustain the objection. Based on our review of the record, we agree with the State that appellant's allegation that Hernandez was a suspect "lacked any foundation." Defense counsel clearly stated that the purpose of his inquiry was not to impeach Sakellis; it was "to develop as many plausible alternative suspects... for [appellant's] benefit." The record, however, fails to support appellant's proffer as to what Sakellis' proposed testimony would have been. Sakellis had already testified that Hernandez never worked for him and that nothing was missing from the restaurant after the first burglary, except the money. Thus Sakellis had denied the very facts that appellant was seeking to elicit from him. Absent a factual predicate for defense counsel's further questioning regarding Hernandez's connection to the burglary, the court's allowance of the requested cross-examination would have served only to confuse the jury. See Smallwood, 320 Md. at 307, 577 A.2d 356. Therefore, the court did not abuse its discretion in sustaining the prosecutor's objection.[3] C. Ruperto Defense counsel also called Ruperto as a witness to establish that Ruperto was a plausible suspect with respect to the burglaries and the firearm counts. Prior to Ruperto's taking the stand, Ruperto's counsel informed the court that Ruperto intended to invoke his Fifth Amendment privilege against self-incrimination in response to all questions. The court permitted defense counsel to question Ruperto regarding his involvement in the burglaries outside the presence of the jury. In response to all questions, Ruperto exercised his Fifth Amendment privilege against self-incrimination. The court then permitted defense counsel to question Ruperto in front of the jury concerning the handgun recovered from under the driver's seat of appellant's Honda. Ruperto exercised his Fifth Amendment privilege as to all questions asked regarding the handgun. Appellant asserts that the court erred in refusing to allow defense counsel to question Ruperto about the burglaries before the jury. We need not address the merits of appellant's contention because, even assuming an abuse of discretion, appellant was clearly not prejudiced by the court's ruling. See Nottingham Vill., Inc. v. Balt. County, 266 Md. 339, 356, 292 A.2d 680 (1972) (noting that the trial court's decisions regarding matters concerning the nature and scope of cross-examination will only be disturbed upon a showing of a prejudicial abuse of discretion). After Ruperto asserted his Fifth Amendment privilege before the jury, he was taken to a holding cell where he admitted to Deputy Walker that the handgun was his. Defense counsel was allowed to reopen his case and call Deputy Walker as a witness. Deputy Walker testified that Ruperto told him in broken English, "gun mine, charges *121 mine, he's innocent." Because Ruperto's confession to the gun and the "charges" was before the jury, we conclude that appellant has not shown prejudicial abuse of discretion occasioned by the refusal of the trial court to allow defense counsel to question Ruperto about the burglaries before the jury.[4] JUDGMENTS OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED; APPELLANT TO PAY COSTS. ADKINS, J., dissenting. I respectfully dissent from the majority's holding that Officer Donoway's questions to Rodriguez did not violate Rodriguez's Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I believe that Officer Donoway violated Rodriguez's Miranda rights the moment that her dialogue with him shifted from general inquiries about his well-being to specific inquiries about his prior arrest record. The Supreme Court's decision in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), defined the meaning of "interrogation" for Miranda purposes. The rule in Innis is clear: "interrogation" includes both "express questioning" by a law enforcement officer and also "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id. at 301-02, 100 S.Ct. at 1689-90 (emphasis removed). The majority interprets Innis in light of the Court of Appeals's decision in Prioleau v. State, 411 Md. 629, 984 A.2d 851 (2009), to hold that Donoway's questioning of Rodriguez did not violate his Miranda rights. In that case, the Court of Appeals held that defendant Maurice Prioleau's Miranda rights were not violated when a detective asked Prioleau "[w]hat's up, Maurice?" at the scene of Prioleau's arrest. Prioleau, 411 Md. at 632, 984 A.2d at 852. The Court stated that it was not reasonably likely that the detective's greeting in that case would elicit an incriminating response. See id. at 651, 984 A.2d at 864. In my opinion, the majority construes Prioleau far too broadly. In the present case, Donoway's comments are by no means as innocuous as those at issue in Prioleau. Had Donoway gone no further than repeated inquiries into whether Rodriguez was "okay," she would not have run afoul of Miranda. Instead, she chose to question Rodriguez as to his past history with law enforcement and arrests, a topic that had nothing to do with calming him down, as she claimed, and everything to do with evoking a conversation about his problems with the law, including the circumstances of his present arrest. Donoway's question to Rodriguez is clearly distinguishable from the question posed in Prioleau, which was permissible in part because it did not involve "a question on anything that [involved] illegal activity." Prioleau, 411 Md. at 651, 984 A.2d at 864. Regardless of whether Donoway was credible in explaining that she had no intention of eliciting incriminating statements from Rodriguez through her questioning, her remarks do not pass muster under the objective standard imposed by Innis. 446 U.S. at 301-02, 100 S.Ct. at 1689-90. Because Donoway's questioning of Rodriguez was unconstitutional interrogation under Miranda, Rodriguez's statements to the officer should be suppressed. I would *122 vacate Rodriguez's conviction, and remand the case to the trial court for a new trial without this evidence. NOTES [*] Sally D. Adkins, now serving on the Court of Appeals, participated in the hearing and conference of this case while an active member of this Court; she participated in the adoption of this opinion as a specially assigned member of this Court. [1] Appellant's issues, in the words of his brief, are: 1. Whether the trial court erred by admitting the statements [appellant] made in response to Officer Donoway's explicit questioning in the absence of Miranda warnings. 2. Whether [appellant]'s mental impairment rendered the incriminating statements he made in response to Officer Donoway's questioning involuntary. 3. Whether the trial court erred by refusing to allow [appellant] the right to present a full defense by limiting his cross-examination of the complaining witness regarding an alternative suspect the witness had implicated. 4. Whether the trial court erred by refusing to allow [appellant] the right to present a full defense by questioning Jose Luis Gonzales Ruperto before the jury about Ruperto's involvement in the burglaries. [2] An incriminating response is one "whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial." Rhode Island v. Innis, 446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (emphasis in original). [3] We agree with the State that "[t]he fact that this statement was included in a police report makes this evidence no more relevant particularly where the statement may not have been accurate." [4] Defense counsel did not ask to recall Ruperto to the witness stand after learning of his confession.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/2273802/

991 A.2d 216 (2010) 201 N.J. 417 Hermes REYES and Leonor Reyes, Plaintiffs-Appellants, v. Harry C. EGNER, Holly Egner, and Prudential Fox & Roach Realtors, Defendants-Respondents, and Harry C. Egner and Holly Egner, Defendants/Third-Party Plaintiffs, and Columbia Reyes, Third-Party Defendant/Fourth-Party Plaintiff, v. Prudential Fox & Roach Realtors, Fourth-Party Defendant. No. A-90 September Term 2008 Supreme Court of New Jersey. Argued October 27, 2009. Decided April 8, 2010. John J. Novak, Toms River, argued the cause for appellants (Mr. Novak, attorney; Deborah A. Plaia, on the briefs). Michael T. Kearns, New Brunswick, argued the cause for respondent Prudential *217 Fox & Roach Realtors (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Kearns and Dawn P. Marino, on the briefs). Barry S. Goodman, Woodbridge, argued the cause for amicus curiae New Jersey Association of Realtors (Greenbaum, Rowe, Smith & Davis, attorneys; Mr. Goodman, Jamie A. Yonks, and Steven B. Gladis, on the brief). William S. Bloom, Edison, submitted a letter in lieu of brief on behalf of respondents Harry C. Egner and Holly Egner (Methfessel & Werbel, attorneys). PER CURIAM. The members of the Supreme Court being equally divided, the judgment of the Appellate Division is affirmed. JUSTICE LaVECCHIA, concurring. In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448, 625 A.2d 1110 (1993), we recognized the existence of a duty of care between a real estate agent conducting an open house to attract potential homebuyers and a member of the public who attended that open house. Recognition of that duty of care was intended to ensure the safety of the visitors to the open house tour, limited to alerting open-house attendees "only to defects that are reasonably discoverable through an ordinary inspection of the home undertaken for purposes of its potential sale." Ibid. In the instant matter, the Appellate Division determined that the Hopkins duty of care did not extend to the short-term lease of a summer rental facilitated through the services of a real estate agent. Reyes v. Egner, 404 N.J.Super. 433, 466-67, 962 A.2d 542 (App.Div.2009). We issued a limited grant of certification to review that determination, 199 N.J. 130, 970 A.2d 1047 (2009), and now an evenly divided Court affirms the judgment of the Appellate Division that granted summary judgment to the agent. I, and the justices joining this concurrence, would affirm the judgment of the Appellate Division, substantially for the reasons expressed in the thoughtful opinion by Judge Sabatino, and briefly add the following to amplify why we decline to embrace, on these facts, the extension of the Hopkins duty of care that our dissenting colleagues would apply. I. Initially, we note, as did the Appellate Division, that plaintiffs[1] must obtain an extension of the duty of care that was announced in Hopkins in order to succeed in their action against the real estate agent in this matter. As Hopkins arose in the specific context of an open house conducted in connection with the sale of real property, to recognize a similar duty where a short-term tenant already has taken occupancy of a rental property plainly requires an extension of Hopkins. Our disinclination to adopt such an extension in this case arises not from a conviction that Hopkins must be limited strictly to the factual context of an open house to sell real property, *218 as we need make no such limiting determination in order to resolve this case. Rather, our affirmance of the grant of summary judgment to the real estate agent hinges on the specific facts presented in this matter, the most central of which is that the Reyes family resided in the summer home for nine days before the unfortunate injury to their family member occurred. Our decision to extend a duty of care in Hopkins was based on the application of a fairness inquiry that weighed and balanced four factors: (1) the nature of the parties' relationship; (2) the nature and foreseeability of the risk; (3) the existence of an opportunity to inspect and to warn; and (4) the public policy underlying the imposition of the duty. Hopkins, supra, 132 N.J. at 439-45, 625 A.2d 1110 (citing Goldberg v. Hous. Auth. of the City of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962)); see Rogers v. Bree, 329 N.J.Super. 197, 201, 747 A.2d 299 (App.Div.2000) (synthesizing four factors analyzed in Hopkins). It is unnecessary to engage in a full analysis of each of those considerations, for there is a plain and decisive difference between the facts in Hopkins and those in the present case relating to the third factor: the opportunity to inspect. The visual inspection by a realtor discussed in Hopkins, which is done for the purpose of ensuring the safety of visitors attending a realtor's open house tour of real property listed for sale, stands in marked contrast to the intimate knowledge of a property that an occupant acquires from actually residing in it. Our holding in Hopkins did not suggest an intent to require that a realtor provide an ongoing guarantee of a property's safety, nor was it designed to protect occupants of a property from personal responsibility for awareness of their surroundings and the dangers inherent in those surroundings. Rather, Hopkins established the proposition that realtors owe a duty of care to protect invited visitors to a marketed piece of property from physical conditions that the nature and duration of their visit might not afford them an opportunity to recognize for themselves.[2]See Hopkins, supra, 132 N.J. at 444-45, 625 A.2d 1110. As noted, the Reyes family lived in the shore rental home for more than a week before the injury-causing accident occurred. A nine-day actual occupancy offered ample opportunity to the occupants to inspect and discern physical defects in the property. The facts of this case simply do not compel an extension of the Hopkins duty of care to plaintiffs' cause of action. Finally, we take issue with the suggestion of our dissenting colleagues that an extension of the Hopkins duty to inspect under the circumstances presented would not impair the short-term rental market in New Jersey. See post at 432-33, 991 A.2d at 224-25. To the contrary, we cannot help but conclude that so broad an extension of Hopkins, with the expected increase in insurance premiums for real estate agencies that would follow, would *219 impact the cost of short-term rentals. We cannot imagine that those increases would be borne by anyone other than the renters—the families, friends and individuals —who vacation in New Jersey each year. On the facts presented, we find no compelling reason to subject the rental industry to the chilling effect of such an extension of the Hopkins duty of care. II. In sum, we would affirm the grant of summary judgment to the real estate agent, substantially for the reasons stated by the Appellate Division and as augmented in this opinion. Chief Justice RABNER and Justice RIVERA-SOTO join in this opinion. Justice ALBIN, dissenting. On a late summer's day, seventy-two year old Hermes Reyes opened the sliding glass door separating the master bedroom from the outside deck of the summer house his daughter had rented. Immediately outside the bedroom's sliding glass door was a seven-inch drop to an intermediate step followed by a six-and-one-half inch drop to the deck. There was no warning of a drop from the bedroom to the deck; the color and grain of the wood of the deck and step suggested one continuous surface. Unaware of the drop, Reyes lost his balance as he stepped outside, tumbling toward the deck's stairs, which had no handrail. He fell down the deck's five steps and onto the ground, suffering severe and permanent injuries. In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), this Court determined that a real estate broker who held an open house for potential buyers had a duty to warn of any reasonably discoverable dangerous conditions in the home. In Hopkins, similar to the facts here, the allegedly dangerous condition that caused injury to the visitor was an inconspicuous step down separating two rooms in a house. In this case, however, because of a three-Justice to three-Justice stalemate, the judgment of the Appellate Division is affirmed, placing no duty on a real estate broker to warn of reasonably discoverable dangerous conditions in a short-term rental. The discordant results in these two cases are difficult to reconcile. The real estate broker, when holding an open house, has a duty to warn of dangerous conditions, even if receiving no financial benefit from the visitor, but has no corresponding duty to a short-term renter from whom a financial profit is made. Our tort jurisprudence now demands that a broker at an open house say, "buyer, watch your step," but allows a broker with full knowledge of a dangerous condition to remain mute to a short-term lessee, and by his silence say, "renter be damned." This cannot be the result the Court had in mind in Hopkins. The failure to place on brokers a reasonable duty of care in the present case is a sharp departure from our evolving common law standards. Tort law does more than allocate costs among responsible tortfeasors; it also is aimed at reducing the number of preventable accidents. Simple economics, moreover, suggests that when imposing a duty of care results in fewer accidents, there will be fewer insurance payouts, which ultimately should lead to an overall reduction in insurance premiums. In short, imposing a duty of care should have no adverse financial impact on the short-term rental market. The Appellate Division deferred to this Court to determine whether to impose a duty on brokers to warn the unwary of dangerous conditions in short-term rentals, as we did in Hopkins for open houses. *220 Sadly, my concurring colleagues today take a pass on the Appellate Division's invitation to refine our developing common law. Because of this lost opportunity, brokers will have no legal incentive to protect short-term renters from the type of avoidable tragedy that occurred in this case. I. Plaintiff Hermes Reyes filed a civil action in the Middlesex County Superior Court in 2005, alleging that he suffered serious personal injuries as a result of a dangerous condition on rental property owned by defendants Harry and Holly Egner. The property was leased by defendant Prudential Fox & Roach Realtors, the broker, to Reyes's daughter, Columbia.[1] Reyes claims that the Egners and Prudential had a duty to give fair warning of the reasonably discoverable dangerous condition that caused his injuries.[2] Because the trial court entered judgment against Reyes, dismissing his complaint against Prudential on the basis that the broker had no duty to warn of a purportedly dangerous condition on the rental property, at this stage we must view the evidence in the light most favorable to Reyes.[3] A. The summer rental home in Stone Harbor, New Jersey, where Reyes suffered his injuries, was sold to the Egners on February 14, 2003. Prudential was the listing agent on the property. On the purchase date, a Prudential agent conducted a walk-through with the Egners, and the Egners authorized Prudential, in a written contract, to act as their "agent to complete rental agreements and execute leases on [their] behalf." Under the contract, Prudential also was given authority "to make necessary emergency repairs to [the] property and/or appliances." Before listing the property, another Prudential agent visited the house to verify information about its amenities. In exchange for Prudential's services, which included listing and advertising the property, the Egners agreed to pay a twelve-percent commission on any signed lease. Prudential advertised available summer properties to potential renters on its website, on local radio, and in the Philadelphia Inquirer. Prudential mailed a brochure listing available summer rentals to Columbia Reyes. In the spring of 2003, she called Prudential and had numerous conversations with one of its agents about renting a summer home. Ultimately, she decided to rent the Egners' house for two weeks, beginning August 23, 2003. Acting as the Egners' agent, Prudential sent Columbia a lease agreement, which she signed and returned with a down payment. Under the terms of the contract, *221 Columbia agreed to pay $4,050, which included a $500 returnable security deposit, for the two-week rental. Columbia did not visit the Stone Harbor property until the start of the rental period. The rental property featured four bedrooms, including a master bedroom with a sliding glass door that led to a small wood deck overlooking the backyard. To get to the deck through the master bedroom's sliding glass door, one would have to step down seven inches onto a wooden "intermediate platform," and then step down another six-and-one-half inches onto the deck itself. The deck was connected to the backyard by five steps. There was no sign or visual cue cautioning a guest walking through the sliding glass door that the deck was not on the same level as the bedroom. As the trial court noted, "if you look at the picture out the bedroom door, it appears that you're walking onto a single space.... It could be an optical illusion." In short, a guest would have no warning of the drop once he stepped through the bedroom's sliding glass door onto the deck. Reyes arrived with Columbia and other family members at the start of the lease period. Reyes and his wife stayed in the master bedroom. On the ninth day of their vacation, Reyes opened the bedroom's sliding glass door for the first time, expecting to step onto a level deck. Unaware of the drop, Reyes lost his balance and stumbled headlong towards the deck's stairs, which had no handrail. He then fell down the flight of stairs leading to the backyard. Reyes was transported to a hospital where he remained for the next five days. After his discharge, he spent five-and-one-half weeks receiving treatment at a rehabilitation facility. He claimed that he suffered severe and permanent injuries to his back. B. The trial court granted judgment in favor of Prudential, finding that Prudential had no duty to inspect the home it rented to the Reyes family and no duty to warn the family of reasonably discoverable dangerous conditions on the property. The court distinguished this case from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), on the basis that an open house—the Hopkins scenario—is of more limited duration than a two-week rental period. The court also determined that imposing a duty of care on Prudential would be unjust because of the seemingly nominal services it provided and fee it received. The Appellate Division affirmed the trial court's dismissal of Reyes's claim against Prudential.[4]Reyes v. Egner, 404 N.J.Super. 433, 467, 962 A.2d 542 (App.Div.2009). The appellate panel construed Hopkins as imposing a broker's duty to warn of reasonably discoverable dangerous conditions only to potential home buyers visiting during an open house. Id. at 464, 962 A.2d 542. In declining to impose a duty on Prudential, the panel nevertheless noted that Reyes had "raised several policy arguments for why a broker should be liable in tort for failing to perform an adequate inspection of rental property." Id. at 466-67, 962 A.2d 542 (footnote omitted). The panel "reserve[d]" to this Court whether the duty imposed on brokers in Hopkins should be extended for the protection of those enjoying short-term rentals. Id. at 467, 962 A.2d 542. *222 We granted Reyes's petition for certification. 199 N.J. 130, 970 A.2d 1047 (2009). I believe that the facts here provide as compelling a case as Hopkins for imposing on brokers a duty to warn short-term renters of reasonably discoverable dangerous conditions. II. A. In Hopkins, supra, the plaintiff accompanied her son and daughter-in-law to an open house hosted by the broker, defendant Fox & Lazo Realtors. 132 N.J. at 432, 625 A.2d 1110. The broker's representative permitted the three to tour the premises on their own. Ibid. At some point, plaintiff walked down a hallway unaware that it led to a step-down foyer. Ibid. The hallway and the foyer were covered with the same vinyl pattern, effectively camouflaging the approaching step. Ibid. Plaintiff lost her footing as she stepped into the foyer, fracturing her ankle. Ibid. In Hopkins, we concluded that a broker owed a duty to warn a potential purchaser and his guests, invited to an open house, "of any dangerous conditions that the broker might reasonably discover while examining a residence in preparation for an open house." Id. at 445, 625 A.2d 1110. "The broker is not responsible for latent defects that are hidden and of which the broker has no actual knowledge." Id. at 448-49, 625 A.2d 1110. We suggested that, before conducting an open house, the broker's inspection should consist of an examination of the premises to ascertain the obvious physical characteristics that are material to its saleability, as well as those features that a prospective purchaser would routinely examine during a "walk through" of the premises. Included are such features relating to the safety, not only of the customer as a potential buyer and ultimate owner or occupier of the home, but also of visitors who are present on the property on the invitation of the broker. That inspection would impose on the broker the duty to warn of any such discoverable physical features or conditions of the property that pose a hazard or danger to such visitors. [Id. at 444-45, 625 A.2d 1110.] We did not "view the imposition of a duty to undertake a reasonable broker's inspection ... and to give adequate warnings with respect to hazards readily discoverable through such an inspection, to be an unreasonable economic strain on a broker's livelihood." Id. at 446, 625 A.2d 1110. We believed that it was "reasonable and fair" for the broker to bear at least some of the costs related to the injury suffered by the plaintiff given the economic benefits the broker received from conducting an open house. Ibid. We noted that the broker would "retain a right of either contribution or indemnification from the homeowner," emphasizing that the homeowner "remains primarily liable for the safety of all invitees on the property, including open-house visitors." Id. at 447, 625 A.2d 1110. Therefore, the broker would not be "solely responsible for the increased costs" related to the imposition of a duty to warn unsuspecting visitors at an open house of reasonably discoverable dangers. Id. at 446-47, 625 A.2d 1110. B. The logic and commonsense of Hopkins lead to imposing a duty on brokers to warn of reasonably discoverable dangerous conditions in the homes they are leasing to short-term renters. In deciding whether to impose a duty of care, our Court has looked to four factors: (1) "the relationship of the parties"; (2) "the nature of the *223 attendant risk"; (3) "the opportunity and ability to exercise care"; and (4) "the public interest in the proposed solution." Id. at 439, 625 A.2d 1110; see also Acuna v. Turkish, 192 N.J. 399, 414, 930 A.2d 416 (2007); Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573, 675 A.2d 209 (1996). First, in this case, as the homeowners' agent, Prudential had a "cognizable relationship" with the Reyes family to whom it leased the Stone Harbor property. See Hopkins, supra, 132 N.J. at 440, 625 A.2d 1110. Prudential advertised the property, forwarded a brochure to Columbia, and engaged in numerous conversations with her with the intent of renting property to her and her family. Prudential succeeded in leasing the Stone Harbor house to the Reyes family for two weeks in the summer and mailed to Columbia the contract governing the rental. In this case, Prudential received a direct economic benefit from the Reyes family, a twelve-percent commission on the lease, as well as a commission on every other lease to every other family renting the Stone Harbor house. In contrast, the broker in Hopkins received no tangible benefit from the injured plaintiff (or her son and daughter-in-law) who was merely visiting the realtor's open house. Here, Prudential was operating in a much larger market and, evidently, leasing many other short-term rentals. Accordingly, the financial benefits from summer rentals to Prudential, and other similarly-situated brokers, are hardly nominal. Second, "the nature of the attendant risk" was significant. A camouflaged step connecting the master bedroom to the outside deck of the Stone Harbor property led to a foreseeable injury—in this case, a seventy-two-year-old man losing his balance and then tumbling down a flight of stairs that had no handrail. In short, the risk here was that a house guest would suffer grievous and severe injuries from a dangerous condition of the property. Third, Prudential had "the opportunity and ability to exercise care." A Prudential agent did a walk-through of the Stone Harbor property at the time the Egners purchased the house. Additionally, after the Egners authorized Prudential "to complete rental agreements and execute leases on [their] behalf," Prudential followed its practice of having an agent visit the house to detail the amenities available to a renter. Surveying the amenities must mean more than counting tea cups in a cupboard; it must require some form of visual inspection of the premises. Prudential agents had the opportunity to notice a non-latent, reasonably discoverable dangerous condition on the Stone Harbor property. The New Jersey Administrative Code also mandates that licensed New Jersey real estate agents "make [a] reasonable effort to ascertain all material information concerning the physical condition of every property for which he or she accepts an agency." N.J.A.C. 11:5-6.4(b). The "reasonable effort" contemplated by the regulation includes a "visual inspection of the property to determine if there are any readily observable physical conditions affecting the property." N.J.A.C. 11:5-6.4(b)(1)(ii). Clearly, post-Hopkins, brokers were on notice that a camouflaged or concealed step down separating one room from another was a potentially dangerous condition. A duty to warn is an appropriate burden to impose on Prudential because, in its role as broker, Prudential— not the homeowners—was communicating with the Reyes family. Finally, although the parties may disagree about the kind of inspection N.J.A.C. 11:5-6.4(b) demands, that issue might be informed by expert testimony on what is reasonable and customary in the broker/realty industry. *224 See Hopkins, supra, 132 N.J. at 444, 625 A.2d 1110. The last factor is "the public interest in the proposed solution." The purpose of our tort system is not "simply to provide legal redress to an injured party," but to give incentives to discourage negligent conduct. Hopkins, supra, 132 N.J. at 448, 625 A.2d 1110. Thus, one of the central objectives of tort law is to prevent accidents. Imposing a duty to warn of a reasonably discoverable dangerous condition—the type of condition that would be apparent to a broker after conducting an inspection under N.J.A.C. 11:5-6.4(b)(1)(ii) —would give brokers an "incentive[ ] to minimize risks of harm" to unsuspecting short-term renters. Ibid. The public has a strong interest in reducing the number of accidents that occur by ensuring that those who know or should know of a dangerous condition give notice to the unwary. When the cost of preventing an accident by conducting a reasonable inspection is less than the cost of paying for one, economics will impel brokers to give the necessary warnings. See id. at 447, 625 A.2d 1110; cf. George Lefcoe, Property Condition Disclosure Forms: How the Real Estate Industry Eased the Transition from Caveat Emptor to Seller Tell All, 39 Real Prop. Prob. & Tr. J. 193, 213-16 (2004) (discussing how brokers, as result of expanded tort liability, became driving force behind promoting seller disclosures of property defects, which reduce post-sale suits against brokers). This Court has "recognized the salutary effect of shifting the risk of loss" to those who are in a position to prevent harm arising from a dangerous condition. Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110. Imposing a duty on brokers to warn of reasonably discoverable dangerous conditions in no way weakens the primary duty that homeowners, who lease their properties, must bear for not warning of or repairing dangerous conditions that threaten short-term renters. See Reyes, supra, 404 N.J.Super. at 452, 460-61, 962 A.2d 542. Because homeowners are not excused from liability for reasonably discoverable dangerous conditions that may cause injury to an invitee, principles of comparative negligence would apply, and realtors would have a right to contribution or indemnification. See N.J.S.A. 2A:15-5.3(e); N.J.S.A. 2A:53A-1 to -3; Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110. Moreover, principles of comparative negligence also would limit, and sometimes bar, a recovery against a realtor when a plaintiff fails to exercise reasonable care after becoming aware of a dangerous condition. See N.J.S.A. 2A:15-5.1 to 5.3; see also Berger v. Shapiro, 30 N.J. 89, 99, 152 A.2d 20 (1959) ("If the guest is aware of the dangerous condition or by a reasonable use of his faculties would observe it, the host is not liable."). Imposing a duty on brokers would not increase the number of lawsuits; indeed, the opposite would occur. Some short-term renters will sue homeowners for injuries caused by dangerous conditions of which those renters were not made aware. That is true today, and it will be true tomorrow. The threat of bringing brokers into those cases would only reduce the number of lawsuits. That is so because, in a certain percentage of cases, brokers would make short-term renters aware of reasonably discoverable dangerous conditions, and therefore the accidents would never happen. Finally, it is unlikely that imposing a duty to inspect and warn would impair the short-term rental market. See Hopkins, supra, 132 N.J. at 446, 625 A.2d 1110 ("Given the economic benefits that inure to the broker ..., to ask the broker to internalize the costs associated with conducting *225 its business is reasonable and fair."). Presumably, realtors already purchase insurance as part of the cost of doing business, and any additional cost would be spread among homeowners who would benefit financially from fewer lawsuits, if the imposition of the duty logically leads to fewer accidents. Indeed, if there were fewer accidents, and fewer lawsuits, one would expect an overall decrease in insurance premiums. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Cornell L.Rev. 893, 917-920 (2005) (detailing how tort liability and high insurance premiums led anesthesiologists to enact reforms, and "[a]s anesthesia became safer, lawsuits against anesthesiologists became less frequent and liability premiums for anesthesiologists declined significantly"). Any increase in premiums for brokers should be offset by a decrease in premiums for homeowners, resulting in a wash for the short-term rental market. III. Before imposing a duty of care on a party, a court must consider notions of fairness and public policy. Acuna, supra, 192 N.J. at 414, 930 A.2d 416. Here, fairness and public policy dictate that brokers, such as Prudential, bear a duty to inspect and warn residents of short-term rental properties about reasonably discoverable dangerous conditions. Undoubtedly, those unfamiliar with the property will be relying on the skill and knowledge of the realtor who is renting the premises. That plaintiff in this case is the father of the person who signed the rental contract does not relieve the broker of a duty to warn because it is foreseeable that family members and even friends will reside in a short-term rental. A dangerous condition of the property will be no less dangerous to the people whose names are not on the contract. See generally Carvalho, supra, 143 N.J. at 572-73, 675 A.2d 209; cf. Monaco v. Hartz Mt. Corp., 178 N.J. 401, 418-19, 840 A.2d 822 (2004) (finding commercial landlord owed duty to employee of tenant as invitee, and that, under Hopkins's analysis, "[t]he fairness and justice of recognizing a duty in such circumstances are clear beyond cavil"). As our common law of torts has evolved, we have recognized that fairness and public policy require the imposition of duties of care that earlier did not exist. See Hopkins, supra, 132 N.J. at 435, 625 A.2d 1110 ("Because public policy and social values evolve over time, so does the common law."); see also Kelly v. Gwinnell, 96 N.J. 538, 556, 476 A.2d 1219 (1984) (imposing duty on social hosts not to serve alcohol to visibly intoxicated guests); Trentacost v. Brussel, 82 N.J. 214, 231, 412 A.2d 436 (1980) (imposing duty on landlord "to take reasonable security measures for tenant protection on the premises"); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 384, 161 A.2d 69 (1960) (abolishing privity requirement in product-liability suits against manufacturers). In his concurring opinion in Hopkins, supra, Justice Clifford found that imposing a duty on brokers to warn clients in an open house of a dangerous condition would be "`no big deal,' ... just nudg[ing] the law forward an inch or so." 132 N.J. at 451, 625 A.2d 1110. Likewise, imposing a duty on brokers in the circumstances of this case would be another incremental advance in the law. Importantly, the New Jersey Association of Realtors, which appeared as amicus curiae on behalf of Prudential, admitted during oral argument before this Court that if a door to the second floor of a house opened into thin air, the broker would have a duty to warn of the danger before *226 the tenant blithely walked through that door to his doom. The Association, which opposes any extension of Hopkins, seemingly concedes that an unsuspecting renter must be warned of some dangerous conditions. However, if a broker has a duty to warn, the question of whether a condition on the premises is dangerous (or dangerous enough) and whether it is reasonably discoverable by a broker would be a matter for a jury.[5] My three concurring colleagues who are affirming the Appellate Division's judgment suggest that had Reyes taken his fall on day one of the rental, the broker might have had a duty to warn. My concurring colleagues state that "[a] nine-day actual occupancy offered ample opportunity to the occupants to inspect and discern physical defects in the property." Ante at 421-22, 991 A.2d at 218. Here, Reyes discovered the defect when, for the first time, he stepped onto the deck and fell down a flight of stairs. Whether Reyes had "ample opportunity" to discover the defect, or should have known of the defect, has nothing to do with Prudential's duty to warn. Rather, whether Reyes should have discovered the danger implicates the doctrine of comparative negligence, not duty, and therefore would be a question for a jury to determine. If Prudential had a duty to warn, and indeed warned, of reasonably discoverable dangers on day one, presumably there would not have been an accident on day nine. The duty to warn stands apart from whether Reyes stepped onto the defective deck on the first day rather than the ninth day of his vacation. IV. New Jersey's citizens would benefit if brokers warn short-term renters of reasonably discoverable dangerous conditions on the premises. Reducing preventable accidents is in the public interest. Brokers have specialized knowledge and experience in the field of realty and already are required to inspect rental properties. It is not unreasonable to impose on brokers a duty to warn the unwary from whom they are profiting. If they violate that duty, they should be prepared to bear the cost of their negligence. Because the Court is evenly split on whether brokers owe a duty to short-term renters, the ultimate resolution of this issue must await another day. I would impose a duty on brokers, such as Prudential, to inspect and warn short-term renters of reasonably discoverable dangers on the premises. I therefore respectfully dissent. Justices LONG and WALLACE join in this opinion. For affirmance—Chief Justice RABNER and Justices LaVECCHIA and RIVERA-SOTO—3. For reversal—Justices LONG, ALBIN and WALLACE—3. NOTES [1] In this opinion, we use "plaintiffs" to refer collectively to Hermes Reyes, who died during the pendency of these proceedings, and his wife, Leonor Reyes, who has asserted a per quod claim based on his injuries, with reference to their cause of action against Prudential Fox & Roach Realtors. Notwithstanding the Appellate Division's affirmance of the award of summary judgment in favor of Prudential, the panel's decision expressly permitted the plaintiffs' cause of action against the homeowners, Harry C. Egner and Holly Egner, to proceed. Reyes v. Egner, 404 N.J.Super. 433, 462, 962 A.2d 542 (App.Div.2009). This opinion addresses only plaintiffs' cause of action against Prudential and is not intended to address or limit any other viable cause of action that may exist as between any party involved in this case. [2] We note that the licensing body for real estate agents, the New Jersey Real Estate Commission, has promulgated regulatory requirements recognizing a realtor's obligation to engage in a "reasonable effort to ascertain all material information concerning the physical condition of every property for which he or she accepts an agency or which he or she is retained to market...." N.J.A.C. 11:5-6.4(b). That "reasonable effort" must include, at least, "[a] visual inspection of the property to determine if there are any readily observable physical conditions affecting the property." N.J.A.C. 11:5-6.4(b)(1)(ii). Although we are uncertain of the extent of the duty that the Commission means to impose by that regulation, we are satisfied that that regulatory duty does not extend to the imposition of liability in the scenario presented in this matter, where a tenant has, for nine consecutive days, been in possession of and in residence at the rental property. [1] The Egners filed a third-party complaint against Columbia, who in turn filed a fourth-party complaint against Prudential. The complaint against Columbia was later dismissed. [2] Reyes's wife, Leonor, filed a consortium claim against defendants in the same action. Reyes died on March 23, 2009. [3] The trial court clearly applied the wrong standard in granting summary judgment in favor of Prudential. Reyes moved for summary judgment on the basis that Prudential owed him a duty of care. It would have been entirely proper for the trial court to deny Reyes's motion, viewing the facts in the light most favorable to Prudential. Instead the court dismissed Reyes's claims. In effect, the court granted summary judgment for Prudential, which was not the moving party, while viewing the facts in the light most favorable to Prudential. See R. 4:46-2(c) ("The judgment... shall be rendered forthwith if ... the moving party is entitled to a judgment or order as a matter of law." (emphasis added)); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). [4] The trial court had entered summary judgment in favor of the Egners. The Appellate Division, however, reversed and remanded for trial on the issue of the Egners' liability as homeowners. The discussion in this opinion is limited to Reyes's case against Prudential. [5] It is worth noting that Prudential's own expert report (submitted during the appeal) indicates that licensed realtors have a duty to disclose known defects and "apparent defect[s] (such as a bare wire hanging from a ceiling) in a summer rental unit."

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"931 F.2d 24\nSteven WEDEMEIER, Appellee,v.CITY OF BALLWIN, MISSOURI, a Municipal Corporation, Willi(...TRUNCATED)

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"369 Mich. 439 (1963)\n120 N.W.2d 225\nMACK\nv.\nPRECAST INDUSTRIES, INC.\nCalendar No. 104, Docket (...TRUNCATED)

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