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https://www.courtlistener.com/api/rest/v3/opinions/2344671/ | 353 F. Supp. 1072 (1973)
Alexander STAVRIDES and Marcia M. Stavrides, his wife, et al., Plaintiffs,
v.
MELLON NATIONAL BANK & TRUST COMPANY et al., Defendants.
Civ. A. No. 72-242.
United States District Court, W. D. Pennsylvania.
January 4, 1973.
*1073 *1074 Sheinberg, Raphael & Sheinberg, Michael P. Malakoff, James H. Joseph, Berger, Kapetan, Joseph & Malakoff, P. C., Pittsburgh, Pa., for plaintiffs.
Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Jones, Gregg, Creehan & Gerace, Dickie, McCamey & Chilcote, Thorp, Reed & Armstrong, Reed, Smith, Shaw & McClay, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Campbell, Thomas & Burke, McCloskey, Best & Leslie, Gault, O'Donnell & Leas, Clarence B. Nixon, Jr., M. J. Arnd, Pittsburgh, Pa., Wolf, Block, Schorr & Solis, Cohen, Philadelphia, Pa., John A. Virostek, Hollinshead & Mendelson, Pittsburgh, Pa., Charles F. Hodel, Cheswick, Pa., C. John Tillman, C. R. Capone, C. Francis Fisher, C. Bryson Schreiner, Robert J. Grier, II, Joseph M. McClure, John R. McCaw, and George R. Craig, Pittsburgh, Pa., for defendants.
OPINION and ORDER
McCUNE, District Judge.
This suit is a class action asserted on behalf of eighteen named plaintiffs and all other persons similarly situated against all lending institutions in the four-county[1] Pittsburgh, Pennsylvania Standard Metropolitan Statistical Area (SMSA) nominally represented by 23 savings and loan associations, one savings bank, four national banks, and the Federal National Mortgage Association (FNMA, "Fannie Mae")[2] which use the accounting methods complained of in the complaint.
The claims asserted in the complaint arise out of the practice of the defendants of requiring mortgagors, in connection with mortgage loans, to establish and maintain accounts with the defendant banks into which plaintiffs are required to deposit each month payments equal to one-twelfth of the annual taxes levied against the mortgaged premises and one-twelfth of the annual premium for fire insurance on the property. Out of these accounts the defendants pay the taxes and insurance on the property mortgaged. The defendants pay no interest on the account balances; nor do they deduct such accumulated balances from the unpaid principal debt balances when calculating the interest owing by the plaintiffs while these amounts are in deposit in their institutions, i. e., they do not "capitalize" the accounts. Funds accumulated in the tax and insurance accounts are not held separately but are commingled with the general funds of the bank.
*1075 Plaintiffs estimate that approximately 250 lending institutions use this accounting method and that they write total mortgage loans of approximately $750,000,000.00 per year in the Pittsburgh SMSA.
The class of plaintiffs is defined as all property owners who have borrowed money from the representative and class defendants against the security of mortgages of real property to the representative and class defendants.
Plaintiffs allege that the lending practices are violations of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1-7; the Consumer Credit Protection Act ("Truth-in-Lending Act"), 15 U.S.C. § 1601 et seq; and Pennsylvania State Law relating to usury, unjust enrichment and breach of fiduciary duty.
This suit is now before the court on defendants' motion to dismiss which asserts that the court has no jurisdiction over the subject matter of the Sherman Act claim; that the Truth-in-Lending and Sherman Acts claims fail to state a claim upon which relief can be granted; and that the state law claims are not a proper subject for the exercise of pendent jurisdiction.
I
We shall deal first with counts 1, 2, and 3 of the complaint[3] which allege violations of the Sherman Act. The Sherman Act counts can be summarized as follows:
The first count alleges that the defendants entered into an unlawful combination and conspiracy on or about January 1, 1960, to stop their former practice of deducting the monthly tax and insurance payments from the principal debt balance of the loan, i. e., "capitalizing," and to begin to account for such payments in so called "escrow" accounts bearing no interest and that this conspiracy restrained trade.
The second count alleges that the extension of credit is conditioned on the deposit by the borrower of escrow funds and that conditioning the extension of credit to an escrow payment requirement is an illegal tying arrangement.
The third count alleges that the banks would not extend credit unless the borrowers would offer to make escrow deposits and that maintaining an escrow payment requirement as a condition of securing credit is an illegal reciprocal dealing arrangement.
A. The defendants argue in their motion to dismiss that counts 1, 2 and 3 of the plaintiffs' complaint do not fall within the subject matter jurisdiction of the court because the mortgage practices in question are local, not in or affecting interstate commerce and, therefore, beyond the pale of the Sherman Act.
Residential mortgage loans, the defendants argue, are primarily local in nature. "The absence of the significant interstate commerce is a function of the nature of the banking transaction involved and of the local character of real estate. Where banks are engaged with non-commercial borrowers and individual depositors such as the plaintiffs here, any interstate impact of that portion of their business is both deminimis and incidental." (Defendant's Brief, p. 8).
We hold, however, that the requisite connection with interstate commerce has been well-pleaded. Strictly speaking, the defendant banks' involvement in residential loans, by itself, may be wholly intrastate. However, we will not assume at this stage of the suit that the defendants do not receive some increase in assets or profits as a result of their residential mortgage business and that these increased assets and/or profits do not make their way through the normal course of the banking business into interstate commerce. See Bank of Utah v. *1076 Commercial Security Bank, 369 F.2d 19, 22 (10th Cir. 1966).
Where, as here, jurisdictional issues rest on factual disputes the plaintiffs should have an opportunity to prove that the practices in question do, in fact, have a substantial effect on interstate commerce. McBeath v. Inter-American Citizens for Decency Com., 374 F.2d 359 (5th Cir. 1967), cert. denied, 389 U.S. 896, 88 S. Ct. 216, 19 L. Ed. 2d 214 (1967). Fireman's Fund Ins. Co. v. Railway Express Agency, 253 F.2d 780 (6th Cir. 1958). For purposes of this motion we assume the truth of the allegations, of course.
Defendants' motion for dismissal on counts 1 and 2 and 3 because of lack of jurisdiction over the subject matter is denied.
B. Defendants also move to dismiss count 1 because it fails to state a claim on which relief can be granted.
Count 1 alleges that the change from the "capitalization" method of accounting to the "escrow" method by the representative and class defendants on or about January 1, 1960, was the result of an unlawful combination or conspiracy in violation of the Sherman Act. Count 1 further alleges that the representative and class plaintiffs "have been damaged to the extent of the increase of the effective applicable annual interest rate on their principal debt balances occasioned by the aforesaid change from the `capitalization' to the `escrow' method of accounting. . . ." ¶18.
An alleged conspiracy or combination, if proved, constitutes a per se violation of the Sherman Act. Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968). For an aggrieved party to state a claim for relief under the Sherman Act it is necessary to allege only a per se violation of the act and, in a treble damage action, resultant damage. Radiant Burners, Inc. v. Peoples Gas Lgt. and Coke Co., 364 U.S. 656, 81 S. Ct. 365, 5 L. Ed. 2d 358 (1961); McBeath v. Inter-American Citizens for Decency Com., supra. The plaintiffs' complaint satisfies both requirements. Consequently, defendants' motion to dismiss count 1 for failure to state a claim upon which relief can be granted is denied.
C. Count 2 alleges that the practice of the defendants of requiring plaintiffs to establish escrow accounts as a condition of securing home mortgage loans is an illegal tying arrangement in violation of the Sherman Act.
Defendants argue that count 2 of the complaint should be dismissed for failure to state a claim upon which relief can be granted because such an arrangement does not constitute "tying."
Tying arrangements[4] involve situations where the seller can use his power over the tying product to win customers that would otherwise have constituted a market available to competing sources of the tied product. Fortner Enterprises v. United States Steel, 394 U.S. 495, 89 S. Ct. 1252, 22 L. Ed. 2d 495 (1969). In effect, the seller says to the buyer, "I will sell product `X' to you only if you also buy product `Y' from me." Plaintiffs argue that defendants here use credit[5] (the tying product) to sell escrow or short-term deposit services (the tied product).
Defendants, in their motion to dismiss, argue that there can be no tying arrangement here because, among other reasons, only one productmoneyis involved. Plaintiffs, of course, argue that there are two products involved credit and escrow services.
*1077 Whether or not there is a separate escrow services or short-term deposit market, whether the defendants are selling one product or two, whether there is any legitimate business justification for the escrow requirement, and whether the escrow service is an ancillary part of the loan itself are clearly questions of disputed fact. Disputed facts cannot be resolved on a motion to dismiss, but must await adjudication at trial, Scozzafava v. United States, 199 F. Supp. 43 (S.D.N. Y.1961).
While the allegations of the complaint in this regard are highly unusual, we are not convinced that plaintiffs are absolutely unable to prove any set of facts in support of their claim which would entitle them to relief. It will have to be determined whether there are two products or only one; whether the banks actually engage in the practice of selling escrow service; whether the banks condition the extension of credit on the obtaining of the escrow service business from those to whom they extend credit, or whether, as the banks argue, the purpose of requiring the payment of tax and insurance money is simply to make sure that taxes and insurance premiums are paid. Consequently defendants' motion to dismiss count 2 for failure to state a claim upon which relief can be granted is denied. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
D. Plaintiffs allege in count 3 that the arrangement by which they are required, as a condition to the extension of credit, to establish and maintain accounts with the representative and class defendants, into which they make monthly tax and fire insurance deposits, is a reciprocal dealing agreement in violation of the Sherman Act.
We do not think the practices which serve as the basis of count 3 can be properly classified as "reciprocal dealing agreements" as that term is usually defined.
In its broadest meaning "reciprocity" describes the practice whereby a company, overtly or tacitly, agrees to conduct one or more aspects of its business so as to confer a benefit on the other party to the agreement; the consideration being the return promise in kind by the other party.[6] United States v. General Dynamics, 258 F. Supp. 36 (S. D.N.Y.1966). It is basically a policy of favoring one's customers in purchasing commodities sold by them. United States v. Penick and Ford, Ltd., 242 F. Supp. 518, 521 (D.N.J.1965). Reduced to its simplest equation it means "You scratch my back and I'll scratch yours" or "I'll buy from you only if you buy from me."
Plaintiffs' argument that the practices in question involve a reciprocal dealing arrangement is concisely stated in their brief (p. 39); "Only by establishing an interest-free account with defendant banks could plaintiffs secure credit to purchase a home. . . . The plaintiff-borrowers, hungry for mortgages, are happy to open an interest-free account quid in exchange for credit quo. The swap is known as reciprocity."
We disagree. These practices, even if proved at trial, would not establish a reciprocal dealing arrangement as defined above. We think the concept of "reciprocity" would be stretched too far if we were to hold that the plaintiffs' willingness to open interest free accounts was a "product" which they "sold" in the course of a mutually beneficial relationship with the banks.
Therefore, plaintiffs' motion to dismiss count 3 for failure to state a claim is granted.
II
Counts 4, 5, and 6 of the plaintiffs' complaint deal with alleged violations of *1078 the Truth-in-Lending Act which result from the defendants' lending practices.
A. In Count 4, plaintiffs allege that the defendants failed to disclose credit terms before the extension of credit as required by 15 U.S.C. § 1639.[7] The complaint alleges that the required disclosures are first made at closing and that this is a violation of the act. Defendants answer that the disclosures required by the act can properly be made at the mortgage closing and need not be revealed before.
Section 1601 of the Act states that it is the "purpose of this subchapter to assure a meaningful disclosure of credit terms so that the customer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit."[8]
After this broad statement of policy the Act goes on to deal with specific forms of credit and credit abuses. Section 1637, for instance, deals with open end credit (i. e., credit cards); § 1638 with retail credit sales (i. e., the installment purchase); and § 1639 with consumer loans not under open end credit plans (i. e., loans from banks, finance companies, etc.). The legislative history reveals very clearly the intent of Congress to enact legislative remedies which reflected commercial realities. Consequently, there are significant differences among §§ 1637, 1638 and 1639.[9]
It was very clearly the intent of Congress, over vigorous dissent, not to enact uniform, blanket provisions to cover all methods of extending credit. The peculiarities of each credit plan and lending situation were taken into account.[10]
Having mentioned the care Congress took to tailor credit reforms to commercial realities we now turn to the disclosure requirements as they apply to mortgage lending. We think it would be very unusual that a mortgagor would be called upon to execute a mortgage and bond without some prior notice of its terms. But even if this were to occur we think disclosure of the terms of the loan in the mortgage papers just before closing would be adequate disclosure under § 1639.
A comparison of §§ 1637, 1638 and 1639 demonstrates that § 1639 contains the same disclosure requirements as § 1638, while § 1637 requires more complete disclosure. These differences, of course, reflect the peculiarities of differing forms of credit. Section 1638 deals with the ordinary credit sale which commonly occurs when one buys a car or appliance on a garden-variety deferred payment or installment plan. In this situation Congress apparently provided that the terms of the loan could be revealed before the credit was extended (just before the buyer signed the papers in the dealer's office) and could be disclosed in the loan papers themselves. *1079 This disclosure requirement was obviously designed to conform to the realities of the commercial world where people buy their cars and appliances on the spot.
We think the exact same disclosure language of § 1638 when used in § 1639 must be given the exact same interpretation. It is apparent therefore, that Congress intended that mortgage terms could be revealed in the mortgage papers just before credit was extended and the loan consummated.
If Congress had intended so great a departure from the usual commercial practices of mortgage financing as plaintiffs urge here we think that somewhere in the statute or legislative history it would have been spelled out. We have found no evidence, however, of such an intent. The broad language of § 1601 which sets out the purpose of the Act cannot be used to overrule the more specific language of § 1639.
The two cases cited by the plaintiffs do not compel the opposite conclusion. Ratner v. Chemical Bank New York Trust Company, 329 F. Supp. 270 (S.D.N.Y. 1971) dealt with § 1637, the credit card situation, and in § 1637 the time of disclosure is spelled out. Bissette v. Colonial Mortgage Corp., 340 F. Supp. 1191 (D.C. Dist. of Col.1972) followed Ratner even though Bissette dealt with a mortgage under § 1639. We submit that Ratner while good law in a § 1637 case is not applicable to a § 1639 case where disclosure may be made just before closing.
Defendants' motion to dismiss Count 4 is granted.
B. The fifth count alleges that the defendants failed to disclose the true annual percentage interest rate[11] on loans made to the plaintiffs because they failed to include in its computation the amounts required to be paid on account of insurance premiums and taxes.
There is no dispute that if the defendants held the tax and insurance payments in trust or in a separate account the payments would not have to be included in the computation of the annual percentage interest rate.[12]
Problems arise here, however, because the defendants allegedly do not put the monthly tax and insurance payments into a separate account. Instead the payments are alleged to be commingled with other bank assets, invested, and the investment profits retained by the banks.[13]
Therefore, the initial question we must decide before determining whether defendants failed to disclose the true annual percentage interest rate is whether the defendants maintain "escrows for future payment of taxes and insurance" for purposes of the Truth-in-Lending Act. The plaintiffs would have us require that the funds be segregated in a so called trustee account or agent's account but they admit that, if the funds were segregated, the banks would not be *1080 required to account for and pay interest to the borrowers on the segregated funds. We do not think that the purpose of the Truth-in-Lending Act is to require labeling of the funds or to require the payment of interest on such funds. The Act does not require that the funds be labelled. It merely characterizes the purpose of such funds by the use of the term "escrow." The purpose of such funds is to pay taxes and insurance.
Considering the purpose of the Act it seems to us irrelevant that the defendants fail to keep the monthly tax and insurance payments in a separate account.[14] The creditor's opportunity to shop for credit, which the Act protects, is not impaired whether the funds paid in for taxes and insurance are segregated or not.
Insofar as the purposes of the Truth-in-Lending Act are concerned, the defendants' "escrow" practices are therefore not objectionable in our view.[15] The amount of the monthly payments is reasonableonly enough to pay the property taxes and insurance; there is a bona fide business purposeto avoid a prior tax lien on their collateral; and the purpose of maintaining "escrows" does not appear to be to evade the requirements of the Act.
Defendants' motion to dismiss count 5 is granted.
C. Defendants have moved to dismiss count 6 for failure to state a claim. In their brief (p. 2), plaintiffs agree that ". . . Defendants' motion to dismiss (count 6) . . . should be granted."
Accordingly, count 6 is dismissed without comment.
III
We deal next with plaintiffs' State Law claims (counts 7, 8, and 9) asserted to be pendent to the Federal Anti-Trust and Truth-in-Lending claims, namely, usury, unjust enrichment and breach of fiduciary duty.
The standards the Federal Courts are to apply in deciding whether to exercise jurisdiction over state law claims said to be pendent to a Federal cause of action are set out in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Gibbs held that the District Court should consider whether the State and Federal claims derive from the same "common nucleus of operative fact" and whether "a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, supra, at 725, 86 S. Ct. at 1138.
The remaining Federal counts having been dismissed, counts 1 and 2 are the only Federal claims still at issue here. They involve, respectively, the existence of a combination or conspiracy, and the existence of a tie-in. These Federal claims, it seems to us, have a quite different factual and legal basis from the state law claims.
If we had denied defendants' motion to dismiss count 5 and the terms and conditions of the mortgage loans had become an issue then it might have been proper for us to exercise our pendent jurisdiction. There then would have been that "common nucleus of operative fact" *1081 on which to base a legal evaluation of all aspects of the defendants' mortgage lending practices.
We do not think, however, that the remaining Federal claims have sufficient factual and legal issues in common with the state claims to merit trying them together. Therefore, we will not exercise pendent jurisdiction over the state law claims. Counts 7, 8 and 9 are dismissed for lack of jurisdiction.
In summary, our rulings on defendants' motion to dismiss count 1 through 9 of the plaintiffs' complaint are as follows:
Count 1 - denied
Count 2 - denied
Count 3 - granted
Count 4 - granted
Count 5 - granted
Count 6 - granted
Count 7 - granted
Count 8 - granted
Count 9 - granted
Whether this action may be maintained as a class action and the identity of the parties to the action will be determined by separate orders after hearing relevant to that subject which will be held as soon as it can be conveniently scheduled.
Finally, it is necessary to add a separate ruling as to Federal National Mortgage Association. It does not lend money to mortgagors but purchases mortgages in the secondary market from mortgage lenders (see Title III, National Housing Act, 12 U.S.C. §§ 1716, 1719). Both Sherman Act counts rest upon an allegation that defendants lend money. In our view, it is obvious that neither count states a cause of action against FNMA. Accordingly, all counts are dismissed as to FNMA.
It is so ordered.
NOTES
[1] The counties are Allegheny, Beaver, Washington and Westmoreland.
[2] All defendants have joined in this motion to dismiss and in the brief supporting it.
[3] Plaintiffs' complaint was dismissed by the Court with the consent of both parties. Plaintiffs then filed the "First Amended Substituted Complaint," which is in issue here. For convenience we shall refer to it simply as the complaint.
[4] Like combinations or conspiracies in restraint of trade, tying arrangements have been held to be a per se violation of § 1 of the Sherman Act if not an insubstantial amount of commerce is involved. International Salt Company v. United States, 332 U.S 392. 68 S.Ct 12, 92 L. Ed. 20 (1947). United States v. General Dynamics, 258 F. Supp. 36 (S.D. N.Y.1966).
[5] It has been held that credit can be a tying product. Fortner v. United States Steel, supra.
[6] Reciprocal dealing agreements, whether voluntary or coercive, violate the Sherman Act because of their clearly anti-competitive effects. United States v. General Dynamics Corp., supra.
[7] Consumer loans not under open end credit plansRequired disclosures by creditor
(a) Any creditor making a consumer loan or otherwise extending consumer credit in a transaction which is neither a consumer credit sale nor under an open end consumer credit plan shall disclose each of the following items, to the extent applicable: . . . .
(5) The finance charge expressed as an annual percentage rate. . . .
Form and timing of disclosure
(b) Except as otherwise provided in this part, the disclosures required by subsection (a) of this section shall be made before the credit is extended, and may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor. 15 U.S.C. § 1639.
[8] See also 12 C.F.R. § 226.1(a) (2) for a similar statement of purpose.
[9] In § 1637, for example, general information about interest rates must be revealed before the purchase and specific information regarding the total amount due, finance charges, etc., must be revealed on each bill after purchase. Likewise, while the amount of the finance charge must be revealed in open end and retail credit, it need not be disclosed on a first lien on a house. There are also differences in provisions for cancelling credit contracts.
[10] See 1968 U.S.Code Cong. & Admin. News, p. 1962 et seq.
[11] The annual percentage interest rate is determined by the following formula:
Finance Charge
Annual Percentage Interest Rate = --------------- × 100.
Amount Financed
[12] 15 U.S.C. § 1605(e)(3) excludes from the computation of the finance charge "escrows for future payments of taxes and insurance."
12 C.F.R. § 226.4(e) of the Federal Reserve Regulations provides that "an escrow or trustee account for future payment of taxes (and) insurance . . ." need not be included in the computation of the finance charge "provided they are bona fide, reasonable in amount, and not for the purpose of circumvention or evasion of this part of the Act" (i. e., method of calculating the finance charge).
[13] Both plaintiffs and defendants agree that if the banks, in fact, maintain escrows for purposes of the § 1605(e)(3) exemption they need not pay interest on the escrow accounts or credit any portion of the investment profits earned thereon to the plaintiffs' accounts. See C.C.H. Consumer Credit Guide, ¶30,882.
"Plaintiffs agree with defendants that they do not have to disclose the loss of interest in the annual percentage rate on an escrow account for future taxes and insurance." Letter to the court by plaintiffs' attorney, Michael P. Malakoff, Esq., dated October 19, 1972.
[14] "The general focus (of the statute), then, is on making various credit options known and understandable to the consumer, before he decides among them . . ." Ratner v. Chemical Bank New York Trust Company, supra.
[15] Our concern here is with the definition of "escrow" as it relates to the remedial purposes of the Truth-in-Lending Act. Consequently, plaintiffs' reliance on Liberty National Life Insurance Co. v. United States of America, 463 F.2d 1027, 5th Cir., 1972, as it discusses "escrow" for purposes of the Internal Revenue Code is misplaced. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1887497/ | 2 B.R. 145 (1980)
In re BUTSON'S, INC., Bankrupt.
Everette H. WILLIAMS, Trustee in Bankruptcy, Plaintiff,
v.
E.E. WEBB, Defendant.
Bankruptcy No. 78-02240.
United States Bankruptcy Court, D. Oregon.
January 8, 1980.
*146 Jerome B. Shank, Portland, Or., for plaintiff.
Michael S. Fryar, Gresham, Or., for defendant.
OPINION
FOLGER JOHNSON, Bankruptcy Judge.
The trustee filed a complaint to recover from the defendant a preferential transfer of $7,401.25. After two pretrial conferences the parties stipulated as to all facts so that no testimony was offered at the trial.
In 1976 the defendant sold his business assets to Butson's and took a security agreement but failed to file any financing statement as required under the Uniform Commercial Code in Oregon. On August 22, 1978, Butson's was indebted to the defendant in the amount of $7,401.25 and that sum or more had been owing the defendant during the two preceding years. On that date the defendant seized assets of Butson's to satisfy the antecedent debt. It was agreed that the reasonable value of such assets was equivalent to the debt. On September 5, 1978, the defendant finally filed a security agreement as a financing statement with the Secretary of State of the State of Oregon. On September 22 Butson's filed bankruptcy.
The parties also agreed that all of the elements of a voidable preference existed except one. The seizure of the assets on August 22 constituted a transfer of the debtor's property to the creditor on account of an antecedent debt within four months prior to the filing of the bankruptcy. It is admitted that the debtor was insolvent at the time and that the defendant had reasonable cause so to believe. The only element of a preference still in dispute is whether the effect of such transfer would be to enable the creditor to obtain a greater percentage of his debt than some other creditor of the same class.
With all other elements of the preference admitted, the trustee filed a motion for summary judgment and briefs were submitted and oral arguments made by both parties. The defendant claims that he should not be treated as an unsecured creditor but as a secured creditor occupying a separate class by himself and therefore the seizure of assets cannot result in giving him more than some other creditor in the same class. He argues that even though there had been no filing under the Uniform Commercial Code, the security agreement was nevertheless valid between the debtor and the creditor and no intervening liens had arisen before the seizure of the defendant.
To accept the defendant's position would be to approve the existence of secret liens something the Bankruptcy Act has long specifically taken steps to eliminate. The class in which a creditor belongs should be determined by the scheme of distribution under the Bankruptcy Act. If there had been no seizure of goods or filing of financing statement prior to bankruptcy, would the creditor have occupied a position ahead of general creditors in distribution of the bankrupt's estate merely because the unfiled *147 security agreement was valid under state law between creditor and debtor? Clearly not. The trustee would have taken the assets as a judgment lien creditor under § 70 of the Bankruptcy Act.
Since perfection of the security interest occurred prior to bankruptcy by seizure of the assetsthe later filing of the security agreement added nothing as the debt had been fully paid by the seizure§ 70c was no longer available to the trustee. He had, however, a bankruptcy-created remedy under § 60 to recover the assets from the creditor by treating the transaction as a voidable preferential transfer.
Since the defendant had not perfected his security agreement as against third parties prior to the seizure of the assets one month before bankruptcy, he must be deemed an unsecured creditor for the purpose of classification under the Bankruptcy Act. In the Arizona case of Glessner v. Massey-Ferguson, Inc., 353 F.2d 986 (1966), at page 992 the Ninth Circuit Court of Appeals said:
"Next it is necessary to consider whether this transfer, so `suffered by such debtor' enabled appellee to obtain a greater percentage of its debt than some other creditor of the same class, in contravention of § 60 of the Act. Appellee contends that the `class' referred to in § 60, sub. a includes only creditors holding claims arising from contracts of conditional sale, and not unsecured creditors of the bankrupt. We do not agree. While `class' is not expressly defined in the Bankruptcy Act, it appears that the general purpose of § 60 was not only to enable the trustee in bankruptcy to strike down `secret liens', but also to require prompt perfection of security interests in order to provide timely and adequate notice to other creditors. . . . Manifestly, if conditional vendors were the only creditors to be included within the `class' in question here, those purposes would be largely defeated."
Following the Glessner case the U.S. District Court for the Western District of Virginia in In re Markham, 254 F.Supp. 948 (1966), where there was another belated filing the Court said at page 959:
"Furthermore, the effect of this `transfer,' if upheld, will be to enable the creditor, Lowe's, to obtain a greater proportion of its debt than some other creditors of the same class. By creditors of the same class it is meant that the creditor must gain advantage over some or all of the creditors in its class as set forth in § 64 relating to priorities. All creditors other than those classified in § 64 are general creditors and belong to the same class, whether secured or unsecured. Glessner v. Massey-Ferguson, Inc., supra. After the execution and before the filing of the contract Lowe's was an unsecured creditor and by filing the agreement beyond the grace period sought to gain an advantage over the other unsecured creditors of the bankrupt."
In the case of Dean v. Planters National Bank of Hughes, 176 F.Supp. 909 (E.D.Arkansas, 1959), there was a defective recording of a mortgage. The creditor also argued that the lien was good between the parties and it should therefore be a secured creditor. The Court said:
"In a case of this kind it is clear that a creditor is not deemed to be `secured' merely because he has a lien which is good as between the parties; his security also must constitute a lien as to third persons. . . . It is equally clear that the question whether the bank's chattel mortgage is a lien as to third persons must be decided by reference to the law of Arkansas." (at page 912)
* * * * * *
"Since the mortgage was not a lien as to third parties, the bank was simply an unsecured creditor, as far as this case is concerned, and receipt of full payment of its note gave it a very distinct advantage over other creditors of the same class, who have received only a portion of their respective claims." (at page 913)
The case of Azar v. Electric Constructors, Inc., 293 F.Supp. 33 (M.D.Alabama, 1967), also supports the principle that the late recording creditor is in the class of general creditors.
*148 There are in fact other general unsecured creditors involved in the case at bar who will not be paid in full. Since the defendant's interest must be measured against theirs rather than against those of secured creditors, it is obvious that those general unsecured creditors will have their recovery reduced proportionately if the defendant were permitted to retain the $7,401.25 worth of goods, and the defendant would receive a greater percentage of its debt than the others. Thus, the sixth and final element for a voidable preference is present.
The defendant's reliance on the Bankruptcy Reform Act of 1978 is misplaced. All the substantive facts in the case, including the filing of the bankruptcy petition, occurred prior to October 1, 1979, the effective date for the new Code. The Transition Title for the Code mandates that:
"A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if this Act had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the Act had not been enacted." Pub.L. No. 95-598, § 403(a) (Nov. 6, 1978).
As this Court stated in In re Rainey, 1 B.R. 569 (B.Ct.Oregon, 1979), any attempt to apply the Comments and Legislative History and as far as the present case is concerned, the statutory language of the Code itselfto a pre-October 1, 1979, case would be a "violation of the Code's specific statute, as well as a retroactive impairment of the parties' rights arising under the Bankruptcy Act."
The Court therefore holds in favor of the trustee, and the motion for summary judgment is allowed. The defendant does not occupy a separate class as a secured creditor but is a member of the class of general unsecured creditors for the purpose of determining whether the preferential transfer is voidable. Judgment should be awarded the trustee in the stipulated amount of $7,401.25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2344694/ | 921 A.2d 1 (2007)
Gregory D. MOORE and Debra J. Moore, h/w and Richard K. Gunter and Cynthia J. Gunter, h/w, Appellants
v.
T. Scott MOORE, Sherry A. Karchner, Christopher L. Jones and Annette M. Wockenfuss, their heirs and assigns, and any and all persons having or claiming to have a right, title, interest or estate in the land herein described, Appellees
Gregory D. Moore and Debra J. Moore, h/w and Richard K. Gunter and Cynthia J. Gunter, h/w, Appellees
v.
T. Scott Moore, Sherry A. Karchner, Christopher L. Jones and Annette M. Wockenfuss, their heirs and assigns, and any and all persons having or claiming to have a right, title, interest or estate in the land herein described, Appellants.
Superior Court of Pennsylvania.
Argued November 29, 2006.
Filed March 6, 2007.
Reargument Denied May 17, 2007.
*2 Robert D. O'Connor, Lock Haven, for G. Moore, et al.
Craig P. Miller, Lock Haven, for T. Moore, et al.
BEFORE: FORD ELLIOTT, P.J., LALLY-GREEN, and JOHNSON, JJ.
OPINION BY JOHNSON, J.:
¶ 1 In this quiet title action, the respective parties cross-appeal the trial court's final decree establishing a boundary between their adjacent properties under the doctrine of consentable lines. Both parties assert that none of the evidence adduced sustains the trial court's ruling fixing the boundary line. They differ, however, on the contours of a proposed ruling and the place between their respective properties where a boundary properly might be drawn. Upon review, we conclude that the trial court's order is not supported by the evidence. Accordingly, we vacate and remand for further proceedings.
¶ 2 The parties' dispute arose in 2001 following acquisition by defendant T. Scott Moore (T.S. Moore) of a parcel of land on the western side of Township Route 410 in Pine Creek Township, Clinton County (Parcel A) designated by deed recital to *3 consist of 58 acres. T.S. Moore's land is adjoined, on the eastern side of Route 410, by a parcel owned by plaintiffs Gregory D. Moore and Debra J. Moore (Parcel B). Parcel B is designated by its deed recital to contain 45 acres. Unfortunately, however, both deeds precede the construction of Route 410 and describe the land they purport to convey with reference to adjoining titles long since transferred to subsequent grantees and subject to speculation. Consequently, ownership of the land cannot be conclusively determined on the basis of the two deeds.
¶ 3 Both parcels descended from a common grantor, Leora L. Moore, who had acquired them in 1954. In 1974, Leora Moore conveyed all of Parcel A to her daughter, Donna K. Baldinger, who ultimately conveyed Parcel A to T.S. Moore. Prior to conveyance, Baldinger informed T.S. Moore that the parcel did not contain the stated acreage but rather, only 27.21 acres, as shown by a survey Baldinger had obtained in 1975. Clinton County accepted the survey and taxed Baldinger on only 27.21 acres during the entire period of her ownership. T.S. Moore never commissioned a new survey of the property and left his deed recital unchanged.
¶ 4 Plaintiffs Gregory D. Moore and Debra J. Moore (the elder Moores) obtained title to Parcel B directly from Leora Moore in 1984. Although the recital of their deed specifies the acreage at only 45, a survey they obtained of the land, running from their far-eastern boundary to the eastern side of Route 410, shows that it contains 77.46 acres. During their period of ownership, the elder Moores have timbered their land and have used other portions of it for agriculture and recreation. They also allow co-plaintiffs Richard K. Gunter and Cynthia J. Gunter to maintain a trailer on the land and have entered a "gentlemen's agreement" with the Gunters to purchase land on the eastern-most side of Parcel B. Commencing in 2001 and continuing through at least 2003, T.S. Moore laid claim to land on the eastern side of Route 410 that the elder Moores had claimed as their own and which had been included in their survey. The record does not indicate, however, that T.S. Moore ever exercised personal dominion over the land.
¶ 5 The evidence shows significant activity on the disputed land by another neighbor, Clifford Wockenfuss, who, with his wife Annette Wockenfuss, resides in the original homestead occupied by Leora Moore on a parcel of ground measured at 2.4 acres. The boundaries of that 2.4 acre parcel were first established by Leora Moore, who retained that section of the larger property for herself after she deeded Parcel A to Donna Baldinger in 1971 and Parcel B to the elder Moores in 1984. This smaller parcel fronts on Route 410, but is surrounded on the remaining sides by the land in dispute here, which ostensibly, she conveyed to the elder Moores. Beginning in 1999, Clifford Wockenfuss conducted his own investigation and concluded that the land belonged to Donna Baldinger, whom he then approached for permission to work the land, which he wished ultimately to buy. Baldinger refused to discuss the matter with him, however, and referred him to T.S. Moore. Wockenfuss asserts that T.S. Moore then granted him permission to work the land upon which he soon planted a vineyard and an orchard, and also constructed a play area and camp. Wockenfuss acknowledged that after that point he was engaged in several disputes with Greg Moore, who claimed that he and not T.S. Moore owned the land.
¶ 6 The elder Moores commenced this action by complaint in January 2003, asserting that the indefiniteness of the descriptions *4 in the parties' respective deeds constituted a cloud on title and that T.S. Moore's grantor, Donna K. Baldinger, had long before acquiesced to Route 410 as a consentable boundary. In February 2006, the matter proceeded to a trial before the Honorable J. Michael Williamson sitting as finder of fact. Upon consideration of testimony and documentary evidence from the opposing parties, Judge Williamson entered findings and conclusions that designated a line of trees on the eastern side of Route 410 as the boundary between Parcels A and B under the doctrine of consentable lines. Consistent with that finding, the court entered a judgment in ejectment against the elder Moores as to the land between Route 410 and the tree line. The parties concluded, however, that the evidence did not support the trial court's decision and filed the cross-appeals at issue here.
¶ 7 The elder Moores raise the following questions for our consideration:
1. When faced with a boundary dispute[,] whether the trial court failed to ascertain and effectuate the intent of the parties at the time of the original subdivision?
2. Whether the trial court misapplied the law of the doctrine of establishment of boundary lines by acquiescence?
Brief for Appellants at 10 (capitalization minimized to enhance readability). Significantly, although T.S. Moore filed a notice of appeal, his brief does not offer a statement or counter-statement of the questions involved and merely argues in response to the arguments of the elder Moores. We conclude accordingly that T.S. Moore has waived any right he might have had to raise questions distinct from those argued by the elder Moores. See Pa.R.A.P. 2113. We shall address the parties' arguments with that limitation in mind.
¶ 8 The elder Moores' questions challenge the trial court's decision in a quiet title action. Our review of such a decision is confined to determining whether the trial court's findings are supported by competent evidence and its decree in conformity with applicable law. See Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super.1998). We will not reverse its decree on appeal unless the court committed legal error or its findings are not supported by credible evidence. See id.; see also Schimp v. Allaman, 442 Pa.Super. 365, 659 A.2d 1032, 1034 (1995).
¶ 9 We commence our review with the elder Moores' second question, as its premise and the corresponding discussion in the opposing brief for T.S. Moore represent the only point of agreement between these two parties. Significantly, the parties agree that the record contains no evidence to sustain the trial court's decision that the "tree line" on the eastern side of Route 410 marks a boundary by acquiescence or "consentable line" between their respective properties. Brief for Appellants at 22; Brief for Appellees at 12. We must determine accordingly whether the parties' conclusion is correct given the law and the evidence.
¶ 10 "The establishment of a boundary line by acquiescence for the statutory period of twenty-one years has long been recognized in Pennsylvania" to quiet title and discourage vexatious litigation. Zeglin v. Gahagen, 571 Pa. 321, 812 A.2d 558, 561 (2002); see also Corbin, 716 A.2d at 617. Based upon a rule of repose sometimes known as the doctrine of consentable line, the existence of such a boundary may be proved either by dispute and compromise between the parties or recognition and acquiescence by one party of the right and title of the other. See Corbin, 716 *5 A.2d at 617. Since there is no evidence of a compromise in this case, the trial court based its decision upon recognition and acquiescence.
¶ 11 "Acquiescence," in the context of a dispute over real property, "denotes passive conduct on the part of the lawful owner consisting of failure on his part to assert his paramount rights or interests against the hostile claims of the adverse user." Zeglin, 812 A.2d at 562 n. 5 (quoting Edward G. Mascolo, A Primer On Adverse Possession, 66 CONN. B.J. 303, 312-13 (Aug. 1992)). A determination of consentable line by acquiescence requires a finding 1) that each party has claimed the land on his side of the line as his own and 2) that he or she has occupied the land on his side of the line for a continuous period of 21 years. See Zeglin, 812 A.2d at 561. Significantly, because the finding of a consentable line depends upon possession rather than ownership, proof of the passage of sufficient time may be shown by tacking the current claimant's tenancy to that of his predecessor. See id. at 566. To do so, however, the claimant must show "sufficient and credible proof of delivery of possession of land not within (but contiguous to) property described by deed of conveyance, which was previously claimed and occupied by the grantor and is taken by the grantee as successor in such interest." Id. "[W]hen a consentable line is established, the land behind such a line becomes the property of each neighbor regardless of what the deed specifies. In essence, each neighbor gains marketable title to that land behind the line, some of which may not have been theirs under their deeds." Soderberg v. Weisel, 455 Pa.Super. 158, 687 A.2d 839, 843 (1997) (internal citation omitted).
¶ 12 Given the holding in Zeglin, the evidence adduced in this case cannot sustain the trial court's determination of a boundary by acquiescence at the tree line on Parcel B, east of Route 410. Our conclusion is based not upon the geographic expanse of T.S. Moore's claim, which is itself a matter of fact, see Corbin, 716 A.2d at 617, but upon the absence of any indication in the record that either T.S. Moore or his predecessor, Donna K. Baldinger, occupied the disputed land for the requisite period of twenty-one years. Although the evidence establishes that T.S. Moore "allowed" Clifford Wockenfuss to make use the land to the east of Route 410 as his own, see Defendants' Exhibits 3, 4, 5, 6, 7, 8, 9, Wockenfuss's use is comparatively recent, none of it before 1999. Moreover, T.S. Moore's claim in and of itself appears to arise from little more than the recital of his deed that the land documented consists of "fifty-eight (58) acres more or less." This conclusion is pointedly illustrated by T.S. Moore's examination as on cross:
Q. Now, Mr. Moore, since you seem to be the, I guess, the principal Defendant in this particular case, what property are you claiming?
A. I'm claiming the deed that I have here in my hand, fifty-eight acres.
Q. And why don't you tell us where you believe the land lies?
A. Well, apparently there's twenty-seven acres on the west side and the rest of the ground would be on the east side.
Q. And where on the east side?
A. I'm not sure.
Q. You have no clue; do you?
A. No, I don't.
Q. In fact, it might not be on the east side.
A. Well, it would be whatever is described in this deed.
Q. But you don't know what's described in the deed; do you?
A. Not without
*6 Q. Having a survey done.
A. Right.
Q. And you never had a survey done.
A. No, I didn't.
N.T., 6/10/05, at 104-05.
¶ 13 The testimony of Donna K. Baldinger, T.S. Moore's aunt and, more importantly his grantor, confirms that, notwithstanding the deed recital, she made no claim to land on the eastern side of Route 410, recognizing that her deed entitled her only to acreage on the western side of the road.
Q. When you received the deed to your property, did you believe you were getting property on both sides of the public road?
A. No.
Q. What did you believe you were receiving?
A. I thought I was receiving forty-some acres on the opposite side of the road. . . .
N.T., 6/10/05, at 62. Having purchased the property from her mother, Leora Moore, in 1974, Baldinger learned from a survey she commissioned that her parcel consisted of only 27.21 acres and applied to Clinton County for a commensurate reduction in her taxes. N.T., 6/10/05, at 63. Notwithstanding her chagrin at having received less than the amount of acreage stated on her deed, N.T., 6/10/05, at 72, Baldinger made no claim to land on the eastern side of Route 410 at any time during the ensuing twenty-six years before she transferred the property, free of charge, to T.S. Moore in 2001. See N.T., 6/10/05, at 72 ("I said, I got a deed, you know, and, yet, I don't have it. I don't have the land I'm supposed to have; and I don't want to be involved in it anymore.") and compare with Dawson v. Coulter, 262 Pa. 566, 106 A. 187, 188 (1919) ("[O]ne who claims title to property through another, regardless of the nature of the transfer[,] whether by the act of the parties or the act of law, is bound by earlier acts or declarations of his predecessor and takes the title cum onere.").
¶ 14 Viewed through the lens of this quiet title action, this evidence fails to validate the trial court's decree of a consentable line on the eastern side of route 410 and defeats any claim that T.S. Moore might make to such land on the basis of boundary by acquiescence. Both conclusions are compelled as a matter of law. Baldinger's testimony reveals, without contradiction, that she made no claim to land on the eastern side of the roadway. Consequently, there exists no preceding claim of possession to which T.S. Moore might, under Zeglin, tack his claim. Given that his own claim of possessory right extends a mere five years, there is no cognizable basis upon which he might claim a consentable line to the east of Route 410 either to the tree line, as the trial court decreed, or anywhere else. Accordingly, the trial court erred in decreeing a consentable line to the east of Route 410 in favor of T.S. Moore.
¶ 15 Although this analysis confirms that T.S. Moore has no claim of right to land on the eastern side of Route 410, a question remains concerning whether the elder Moores, in their quiet title action have established their right to all land between Route 410 and the far eastern border of Parcel B. The trial court found that the evidence supported their claim only to the aforementioned tree line because the Gunters, who had moved their trailer to the west of the tree line onto land claimed by T.S. Moore, moved it back to its original location when faced with opposition from Clifford Wockenfuss who at that same time had begun to husband the land with the purported permission of T.S. Moore. Trial Court Opinion, 1/5/06, at 5. The court reasoned accordingly that:
*7 The history of the movement of the Gunter trailer seems to us to be an indication that, if there were an "understanding" with respect to the boundary of the parcel acquired by Gregory Moore, that understanding was that Gregory Moore had a claim only for the land lying to the east of the tree line . . . that is, east of the imaginary extension, north and south, of the eastern line of the 2.4 acre parcel containing the [Wockenfuss residence].
Trial Court Opinion, 1/5/06, at 5. We find this conclusion unsupported given that the record shows no "understanding" between the elder Moores and T.S. Moore concerning the latter's claim to land on the eastern side of Route 410. Neither party professes that any such agreement or accommodation existed.
¶ 16 The elder Moores argue, we believe correctly, that the evidence of Leora Moore's intent as the original grantor, when coupled with their own exercise of dominion over the land, establishes their claim of right to all land to the eastern edge of Route 410. Brief for Appellants at 17. See also Dawson, 106 A. at 188 ("[A]ll acts and declarations of the owner of land made during the continuance of his interest tending to show the character or extent of his possession or interest, or the location of boundaries, are competent evidence not only against himself but also against those who claim through or under him."). Leora Moore deeded Parcel A to Donna Baldinger in 1971 and Parcel B to the elder Moores in 1984. Significantly, it was not until this 1984 transfer that she made any attempt to delineate a separate title for Parcel C, on which she continued to live in the original homestead. We find this conduct dispositive of Leora Moore's intent as well as that of her two grantees, Baldinger and Gregory Moore, concerning the land on the eastern side of Route 410, where Parcels B and C are located. See Corbin, 716 A.2d at 617 ("The primary function of the court faced with a boundary dispute is to ascertain and effectuate the intent of the parties at the time of the original subdivision.") (citation omitted). If Leora Moore had intended to convey land on the eastern side of Route 410 pursuant to the 1971 transaction, she would have recognized the need to preserve her own title to the parcel on which she resided, as she did when she conveyed Parcel B to Gregory Moore in 1984. The fact that she did not render a deed for Parcel C until that conveyance suggests that she did not intend to convey the surrounding land to Baldinger in 1971. Contrarily, it evinces her intent in 1984 to convey the surrounding land to the grantee in that transaction, Gregory Moore. Thereafter, the elder Moores exercised dominion over the land by, among other things, paying taxes on it, maintaining an access road over it, having it timbered, planting it, and later, disputing the activities of Clifford Wockenfuss in treating the land as his own. N.T., 11/30/05, at 30-31, 33, 34, 53-54.
¶ 17 Under substantially similar circumstances, we have held the evidence sufficient as a matter of law to establish dominion over the land which, if continued for a period of twenty-one years, may establish a boundary by consentable line. See Schimp, 659 A.2d at 1034-35 (concluding that claimant's evidence of having grown crops, pastured cattle, and constructed a track road over disputed land over period exceeding twenty-one years established dominion over land and boundary by consentable line). In this case, the elder Moores have held the land in question since 1984, a period that now exceeds twenty-one years. Moreover, even if we were to toll the applicable running time as of the date of commencement of this action, thereby limiting the elder Moores' *8 dominion to a lesser period, they would be entitled nevertheless to tack their claim to the tenancy of their grantor, Leora Moore, who had held the property since 1954. See Zeglin, 812 A.2d at 566. Given that the resulting period of time clearly exceeds twenty-one years, the evidence does not support the trial court's conclusion that the elder Moores failed to establish their right to quiet title by consentable line.
¶ 18 For the foregoing reasons, we reverse the order of the trial court and remand this matter for further proceedings.
¶ 19 Decree REVERSED. Case REMANDED to the trial court for further proceedings consistent with this Opinion. Jurisdiction RELINQUISHED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2345261/ | 716 F.Supp. 1009 (1989)
UNITED STATES of America, Plaintiff,
v.
Carl LIGON, Defendant.
Crim. No. CR 88-00013-01-P.
United States District Court, W.D. Kentucky, Paducah Division.
August 14, 1989.
*1010 Joseph M. Whittle, U.S.Atty., Randy Ream, Asst. U.S. Atty., Louisville, Ky., for plaintiff.
Larry G. Kelley, Wickliffe, Ky., for defendant.
MEMORANDUM
SILER, Chief Judge.
This matter has come to this Court on appeal from a sentence by Magistrate John M. Dixon, Jr. The standards on appeal are set out in 18 U.S.C. § 3742(f), which provides that this appeal is governed by 18 U.S.C. § 3742. Then, this Court reviews the case like a United States Court of Appeals and follows subsection (d), which states that: "The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." Nonfactual or legal issues are not considered under the "clearly erroneous" standard, however.
The defendant was convicted on two counts of a violation of 16 U.S.C. § 668(a)[1], of taking or possessing a bald eagle by pursuing, shooting, shooting at, wounding, molesting or disturbing a bald eagle on two different dates. After a trial before the Magistrate, the defendant was found guilty on both counts. The defendant owns property adjacent to the Ballard County *1011 Management Area. The defendant has pits for goose hunters on his property and allows hunters to use the property for fees. During January, 1988, the defendant was observed shooting at eagles over his property or in the vicinity of his property, as eagles prey upon wounded waterfowl. The defendant apparently did not want the eagles in the vicinity of his goose pits, as he felt that they scared the geese off his property.
The first issue which has been raised is whether the Magistrate should have given the defendant a two point credit for acceptance of responsibility under Section 3E1.1 of the Sentencing Commission Guidelines. The defendant was found guilty after a trial, in which he testified that he had received permission from Magistrate King to shoot at eagles and that he was shooting to scare away eagles from his goose pit. At the time of the sentencing hearing, the Magistrate heard from the Probation Officer, who recommended that the defendant be given credit for acceptance of responsibility. The Magistrate held that the prosecution had the burden of proof in the case and stated that it was a "sort of a toss up." Thus, both orally and in his written opinion, the Magistrate concluded that because the United States failed to meet its burden of proof, he accepted the statement by the Probation Officer that the defendant should receive a two point credit for acceptance of responsibility.
As the Sentencing Guidelines are new, cases interpreting the Guidelines are disseminated frequently, so the Magistrate cannot be blamed for not knowing about decisions issued subsequent to his ruling. In determining whether the Magistrate erred on the question of acceptance of responsibility, Section 3E1.1 of the Sentencing Commission Guidelines, Application Note 5, states:
The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.
Furthermore, the acceptance of responsibility for a crime is ordinarily a factual question, and enjoys the protection of the "clearly erroneous" standard. United States v. Wilson, 878 F.2d 921 (6th Cir. 1989), quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989). However, the error was not in determining the credibility of the witnesses, but was in ruling that the United States had the burden of proof to show that the two point credit was inappropriate.
In a recent decision by Judge Wilkins, Chairman of the Sentencing Commission, in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.1989), it was held that when the defendant wishes to lower his ultimate sentencing range, he has the burden of establishing by a preponderance of the evidence the applicability of the mitigating factor in question. Conversely, when the government seeks to enhance the sentencing range, it should bear the burden of proof. The Court of Appeals for the Sixth Circuit has apparently not ruled on this issue yet. However, two recent district court cases arrived at a contrary conclusion. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); and United States v. Dolan, 701 F.Supp. 138 (E.D. Tenn.1988). As Urrego-Linares is the only case which has been rendered by a court of appeals on that point, this Court will follow it and finds that the Magistrate erred by not requiring the defendant to carry the burden of proof in showing acceptance of responsibility.
The second issue which has been raised is whether the conduct of the defendant at a time subsequent to his trial but before sentencing amounted to an obstruction of justice under Section 3C1.1 of the Guidelines. The United States maintains that not only should the defendant not have been given credit for the acceptance of responsibility, but that his sentence should have been enhanced by an increase of two points for obstruction.
According to Officer Littlejohn, when he came to the defendant's house before *1012 checking some goose pits approximately two days before the sentencing hearing, the defendant threatened him with a lawsuit and also threatened to shoot him. This was at a time when Officer Littlejohn was there under authority to enforce the game laws. The defendant denied that he threatened to kill Littlejohn, but he admitted that he threatened to sue Littlejohn for perjury at the trial. In that situation, the Magistrate's finding that the government had the burden of proof was correct under the decisions of all the cases cited herein. The Magistrate did not make a specific finding of whether there was an obstruction of justice or whether there should have been a two point enhancement. However, as he failed to enhance the total offense level of four points, by implication he felt that enhancement was not appropriate and that the United States had not met its burden of proof on that question. This Court cannot hold that finding to be clearly erroneous, as it was a factual dispute. Therefore, the implied decision by the Magistrate not to enhance the total offense level with points for obstruction of justice will be upheld.
The Magistrate stated: "I don't think the determination that I make will affect the sentence which I consider to be appropriate anyway.... I'm going to tell everyone here that it doesn't have any particular effect on what the court would do in this particular case.... I really don't think it would have any effect on the sentence I would impose, notwithstanding the recommendation of the government." Because of these statements by the Magistrate, it would appear that the only issues raised on appeal are moot.
Had this Court upheld both issues raised by the United States, the offense level would have been raised from four to eight, changing the sentence from 0-4 months to 2-8 months. If the range had been 2-8 months, the Magistrate could still have put the defendant on probation, but the sentence would have required intermittent confinement or community confinement under Section 5B1.1(a)(2) of the Sentencing Commission Guidelines.
Nevertheless, as the Magistrate was upheld on the second issue raised, an error on the first issue (acceptance of responsibility) does not require a reversal for a new sentence, as the new range for sentencing is only 0-6 months vice 0-4 months. In light of the statements by the Magistrate at the time of sentencing, the decision shall be affirmed. As stated in United States v. Bermingham, 855 F.2d 925, 931 (2d Cir. 1988), "disputes about applicable guidelines need not be resolved where the sentence falls within either of two arguably applicable guideline ranges and the same sentence would have been imposed under either guideline range." Accord, United States v. Urrego-Linares, supra; United States v. White, 875 F.2d 427, 432 (4th Cir.1989). That is similar to the situation in this case, so a remand for further sentencing would be of no value.
The defendant has objected to the supplemental memorandum filed by the prosecution on June 13, 1989, more than twenty days after the transcript was filed in the record. However, the Court finds no prejudice to the defendant and will allow the memorandum to be considered.
NOTES
[1] 16 U.S.C. § 668(a) provides in part that:
Whoever ... shall knowingly, or with wanton disregard to the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle ... shall be fined not more than $5,000.00 or imprisoned not more than one year or both: ... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2345196/ | 716 F. Supp. 311 (1989)
PINE TOP INSURANCE COMPANY, Plaintiff,
v.
CENTURY INDEMNITY COMPANY and Bank of America National Trust and Savings Association, Defendants.
No. 88 C 4330.
United States District Court, N.D. Illinois, E.D.
June 8, 1989.
James R. Stinson, Holly A. Harrison, Alan R. Dolinko and Brian J. Sullivan, Sidley & Austin, Chicago, Ill., for plaintiff.
David M. Spector, Thomas S. Kiriakos and Susan M. Kozik, Jones, Mayer, Brown & Platt, Chicago, Ill., for Century Indemnity.
Phil C. Neal, Neal, Gerber, Eisenberg & Lurie, Chicago, Ill., for Bank of America.
MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Pine Top Insurance Company ("Pine Top"), an Illinois insurance company currently in liquidation under Illinois Insurance Code Art. XIII (Ill.Rev.Stat. ch. 73, ¶¶ 799-833.13[1]), has sued Century Indemnity Company ("Century") and Bank of America ("Bank") under Insurance § 816(2) to recover two allegedly voidable preferential transfers. Count I of the First Amended Complaint ("Complaint") seeks to recapture one of the transfers from Century.
Century now moves alternatively (1) under Fed.R.Civ.P. ("Rule") 56(b) for summary judgment on Count I or (2) under Rule 12(b)(6) to dismiss Count I for failure to state a claim.[2] For the reasons stated in *312 this memorandum opinion and order, Century's motion is denied in both respects.
Facts[3]
Pine Top provided reinsurance coverage for Century in accordance with reinsurance treaties between them. Those treaties required Pine Top to reimburse Century for certain losses covered by the reinsured policies Century had initially issued. From time to time Century would require Pine Top to establish standby letters of credit ("LOCs") to secure its obligations under the treaties.
On February 10, 1986[4] Bank issued a commitment letter to Pine Top in which Bank agreed to provide Pine Top with a $10 million line of credit conditioned upon the provision of specified collateral. That collateral comprised (1) Pine Top's current and future receivables, (2) $6.8 million in its short term notes and (3) a $3.2 million standby LOC previously issued by Bank to Pine Top on the account of Greyhound Corporation (Pine Top's parent corporation).
On February 26 Pine Top, to secure its then-existing open account obligations to Century under the treaties, drew on Bank's commitment by causing Bank to issue an approximately $2.9 million standby LOC in Century's favor. Then on March 18 Pine Top signed a security agreement (the "Agreement") with Bank, granting Bank a security interest in cash and securities in consideration for the line of credit extended in Bank's commitment letter. At about the same time Pine Top also granted a security interest to Bank in its reinsurance receivables and also assigned Greyhound's $3.2 million LOC to Bank pursuant to the terms of the commitment letter. Then on April 22 Pine Top actually transferred to Bank approximately $6.7 million of the collateral described in the Agreement and in its other loan documents with Bank.
On June 23 the Illinois Director of Insurance filed a Verified Petition for the rehabilitation of Pine Top, and Pine Top was then placed into voluntary rehabilitation pursuant to the Illinois Insurance Code. On January 16, 1987 Pine Top was placed in liquidation and deemed insolvent.
Pine Top had in fact been insolvent since at least the preceding February 26 (when it first drew on Bank's commitment), and Century had reasonable cause to believe Pine Top was insolvent at and after that time. It was some time after June 23 that Century drew down the entire $2.9 million under the LOC previously issued in its favor.
Bank and Pine Top had intended the $10 million line of credit to be 100% collateralized up front (Tr. 31). Nonetheless, although the nature of the collateralization was set forth in the February 10 commitment letter, the collateral itself was not finally identified until the Agreement was signed on March 18. It was on that date that Bank was assigned the proceeds of the Greyhound LOC (P.Ex. 13). Even though the parties had generally agreed the entire transaction would proceed with dispatch (see, e.g., Tr. 67), the remainder of the collateral did not reach Bank until April 18 or 22.
It is undisputed that Bank liquidated Pine Top's pledged collateral to cover its loss when Century drew down on the LOC. Those are the proceeds now in dispute in Complaint Count I.
Voidable Preference
Every LOC transaction is tripartite in nature. For that reason it necessarily *313 involves three sets of relationships one between each pair of the parties (Debtor, Creditor and Issuer).
At the outset of the LOC transaction Debtor (here Pine Top) owes or will owe[5] Creditor (here Century) money (here under the reinsurance treaties). Issuer (here Bank) issues an LOC to Creditor to satisfy Debtor's obligations or anticipated obligations in this case the LOC was standby in nature, assuring Creditor Century that Debtor Pine Top would honor its promise. As between Issuer Bank and Debtor Pine Top, the latter agreed to reimburse the former for any payout it might have to make, securing that promise with collateral.
In this case Pine Top agreed to and ultimately did collateralize the standby LOC in full. What fuels the current controversy is the timing of Pine Top's agreement and its delivery of the collateral.
There is no dispute that in February Pine Top already owed Century money pursuant to the reinsurance treaties. Thus the standby LOC provided security for an unsecured antecedent debt. And of course the existence of an antecedent debt that is unsecured (at least to some extent) is the hallmark of a voidable preference claim. That is the essence of the voidable preference provision under the Bankruptcy Code, 11 U.S.C. § 547(b),[6] and all parties treat judicial interpretations of that section as applicable to this case.
If viewed in isolation, neither Bank's issuance nor its honoring of the standby LOC constitutes a voidable preference as to Century. Only property of the debtor's estate can be the subject of a voidable preference under Insurance § 816(2) (cf. Bankruptcy § 547(b)), and an LOC and its proceeds are not property of the debtor's estate (In re Compton Corp., 831 F.2d 586, 589 (5th Cir.1987) and cases cited there). When the issuer honors a request under an LOC, it is perceived as doing so from its own assets.
Again if viewed as an isolated transaction, Pine Top's transfer of collateral to Bank also cannot be a direct voidable preference as to Century. After all, no property was transferred to Century in that transaction.
What Pine Top seeks to do is to telescope those two transfers into one having the effect of an "indirect transfer" of funds from Pine Top to Century (and thus being voidable as against Century). That "indirect transfer" concept is far from new: It was crystallized early in this century in National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 184, 32 S. Ct. 633, 635, 56 L. Ed. 1042 (1912):
To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another, for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it.
And it has recently been applied in the LOC context first in Compton, then followed by In re Air Conditioning, Inc. of Stuart, 845 F.2d 293 (11th Cir.1988).
Thus Compton, 831 F.2d at 594 stated: We hold that a creditor cannot secure payment of an unsecured antecedent debt through a letter of credit transaction when it could not do so through any other type of transaction.
Compton, id. at 595 emphasized that its holding did not overturn any prior LOC law or any established perception of how LOCs allocated risks. Air Conditioning, 845 F.2d at 296-97 has concurred enthusiastically in the Compton analysis.
*314 Century does not dispute either the logic or the holding of those cases. Instead it urges they are inapplicable to the facts of this case. In Compton the LOC was fully collateralized when it was issued, due to a prior security agreement and a contemporaneous promissory note. In In re Air Conditioning, 55 B.R. 157, 159 (Bankr.S.D. Fla.1985) the bankruptcy court noted the LOC was secured by a certificate of deposit, and the issuer perfected its security interest in the certificate within seven days after the LOC issued. Century R.Mem. 10 concludes the Compton-Air Conditioning rule requires that the two events (issuance and collateralization of the LOC) be "substantially contemporaneous," or that there be a causal relationship between the improvement of Creditor's position (issuance of the LOC) and the depletion of Debtor's assets (collateralization).
Like the "indirect transfer" concept, the "substantially contemporaneous" doctrine is well-rooted in precedent. First identified in Dean v. Davis, 242 U.S. 438, 37 S. Ct. 130, 61 L. Ed. 419 (1917), it is normally invoked in the bankruptcy context under Bankruptcy § 547(c)(1). Dean held a debtor's transfer of property one week after the making of the loan secured by that transfer was not a preference because (1) the parties had intended from the beginning that the loan be secured and (2) the two transactions were "substantially contemporary."[7]
Development of the substantially-contemporaneous-exchange doctrine in the bankruptcy context has been colored by Bankruptcy § 547(e)(2)(A), which relates back a security interest perfected within ten days after the original transfer. Essentially that provides a ten-day grace period to provide security. Century relies on a series of bankruptcy court decisions such as In re Damon, 34 B.R. 626, 630 (Bankr.D. Kan.1983) to conclude that a transfer of security more than ten days after the underlying loan is prima facie not contemporaneous.
Even taken on its own terms, that argument would not necessarily carry the day. There is a separate line of cases (typified by In re Arnett, 13 B.R. 267 (Bankr.E.D. Tenn.1981), aff'd, 17 B.R. 912 (E.D.Tenn. 1982)) that rejects Bankruptcy § 547(e) as defining the exclusive limitation on Bankruptcy § 547(c). Those cases look at the initial intent of the parties even if the security transfer takes place more than ten days later. And because the Illinois Insurance Code has no provision corresponding to Bankruptcy § 547(e), there would seem to be even less reason to be bound exclusively by a ten-day cutoff here.
But the premise that Century's argument should be taken on its own terms is itself false. This LOC situation was of course much more complex than the standard contemporaneous exchange scenario say that in which an automobile lien is perfected after the loan has been made. There the contrast between a voidable preference and a non-voidable for-value exchange (as always, a function of whether the debtor's estate was or was not diminished in favor of the creditor) is determined by the timing or what is treated as the timing of the two transactions. If the debtor receives or is considered as having received fresh money (in the hypothesized example, loan proceeds) at the same time the debtor has parted with its property (in the example, a lien on its automobile), the net estate is undiminished and preexisting creditors cannot complain: They share in the same pot as before. But if the debtor has already received a loan without any contemplated giving of security, its enlarged estate (its prior assets plus the loan proceeds) is treated as the pot in which the preexisting creditors (and the new lender) are entitled to share. If thereafter the new lender is preferred by being given security sufficiently close to the date the law designates as the measuring point for voidability, the other creditors (or their surrogate, the receiver or trustee or debtor itself) can *315 attack the transfer.[8]
Although that line of analysis including the way in which it looks at the timing as between (1) the creditor's parting with its property to benefit the debtor and (2) the debtor's delivery of security might profitably apply to some LOC situations (say the establishment of a standby LOC arrangement before the creditor ever begins to extend credit), it is totally inapropos here. It must be remembered that Pine Top owed Century money under the treaty (an unsecured obligation) before it caused Bank to issue the LOC in Century's favor. That sequence, and not the relative timing of the issuance and collateralization of the LOC, is the principal key to the existence of a voidable preference. Had Pine Top turned over assets to Bank to secure the concurrent issuance of an LOC to Century because of a preexisting debt Pine Top owed Century, the "indirect transfer" concept would have rendered that turnover voidable as a preference. And if (as here) the turnover of assets came even later, the preexisting debt was if anything more antecedent, so the preference concept should apply a fortiori.
Hence the only question that needs to be answered is whether, as the issue was posed in Compton, 831 F.2d at 594:
The purpose of the letter of credit transaction in this case was to secure payment of an unsecured antecedent debt for the benefit of an unsecured creditor. This is the only proper way to look at such letters of credit in the bankruptcy context.
For that purpose Compton, id. reasoned in language equally applicable to the situation described in Pine Top's Complaint and the other materials submitted on the current motion:
The promised transfer of pledged collateral induced the bank to issue the letter of credit in favor of the creditor. The increased security interest held by the bank clearly benefitted the creditor because the bank would not have issued the letter of credit without this security. A secured creditor was substituted for an unsecured creditor to the detriment of the other unsecured creditors.
In like manner, the District Court in Air Conditioning, 72 B.R. 657, 660-61 (S.D. Fla.1987) also focused on whether the bank intended the entire transaction to be one in which the debtor provided security for the LOC. On appeal the Court of Appeals, 845 F.2d at 296 noted "the promised transfer of the certificate of deposit induced American Bank to issue the letter of credit in the first place."
Compton, 831 F.2d at 595 described its goal as that of preventing an unsecured creditor from avoiding a preference attack through the use of an LOC to secure payment of an antecedent debt. Here Century clearly attempted to secure Pine Top's prior debt with the LOC. Bank's intent was to provide the LOC in exchange for 100% collateralization, and not to shift the burden of Pine Top's insolvency. Those things being true, Century should be precluded from receiving a greater percentage of its claim than other creditors.
It may be too early to tell whether Pine Top will be able to deliver the facts as advertised in its Complaint. For the present it need only be decided that Century cannot prevail with all reasonable factual inferences drawn in Pine Top's favor. Century's motion for summary judgment on Count I is therefore denied.[9]
Reasonable Cause
Century has also moved to dismiss Count I for insufficiency under Rule *316 12(b)(6), contending the Complaint does not adequately allege that Century had reasonable cause to believe it was receiving a preference. That motion too is meritless.
Insurance § 816(2) renders a preference voidable only if the creditor had reasonable cause to believe a preference would occur. Although ¶ 16 alleges Century had reasonable cause to believe Pine Top was insolvent at the time the LOC issued, Century argues that is insufficient.
Both litigants agree the Illinois Insurance Code is analogous to Section 60(b) of the Bankruptcy Act of 1898 (and the 1938 amendments) in terms of the "reasonable cause to believe" clause. Under the jurisprudence of that bankruptcy section, it was enough that the creditor had reasonable cause to believe the debtor was insolvent (see, e.g., the Ponzi scheme case, Cunningham v. Brown, 265 U.S. 1, 10-11, 44 S. Ct. 424, 426, 68 L. Ed. 873 (1924)).
Century advances two arguments in an effort to escape that result:
1. It claims an exception exists where a creditor knows the debtor is insolvent but honestly believes the debtor will continue in business and realize enough money to pay its debts in full.
2. It contends that because (a) a preference occurs only if the LOC was collateralized when it was originally issued and (b) Century had no reason to believe the LOC was in fact collateralized, Century could not have reasonably believed there was a preference.
Both those arguments must be rejected, for on the current Rule 12(b)(6) motion this Court is bound by the allegations in the Complaint and all facts reasonably inferred from those allegations.
As for Century's first argument, it is entirely at odds with the Complaint's allegations that Pine Top was insolvent and Century knew so at the time of the LOC's issuance. No reasonable inference could be drawn to support the proposition that Century nevertheless believed Pine Top would be able to remain solvent.
Century's second contention fails for more than one reason. Its first premise has been shown to be flawed in the Voidable Preference section of this opinion. But even were that not so (and Century cites no legal authority to support its contrary position), it is still a reasonable inference from the Complaint that Century could have believed the LOC was intended to be collateralized from the outset. At the very least, given the ¶ 21 allegation of a preferential transfer, it would be improper to dismiss the Complaint on the ground that there was no such transfer in fact.
In sum, Century's alternative motion suffers the same fate as its first. It too must be denied.
Conclusion
Century's alternative motion for summary judgment on, or for dismissal of, Count I is denied in its entirety. This action is set for a status hearing at 9 a.m. June 16, 1989 to discuss future proceedings in this action.
NOTES
[1] Further references to the Insurance Code will be in the form "Insurance § ___," referring to the numbering in the statutory compilation by Smith-Hurd. This opinion employs "§" rather than "¶" to conform to the General Assembly's continued usage of the former symbol, though Smith-Hurd shifted to the "¶" symbol a few years ago.
[2] Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986)). For that purpose this Court is called on to draw all "reasonable inferences, not every conceivable inference" in the light most favorable to the non-movant in this case Pine Top (DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987)). Rule 12(b)(6) principles require this Court to accept as true all of Pine Top's well-pleaded factual allegations, again drawing all reasonable inferences in its favor (Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.1987) (per curiam)). Those alternative motions call for related, though not identical, approaches.
[3] Despite the somewhat different standards called for by Century's alternative motions (see n. 2), presentation of the facts is not too complex: Apart from the Complaint itself, the only materials tendered in conjunction with the Rule 56 motion are the deposition of Robert Troutman (cited "Tr.____") and the exhibits to that deposition (cited "P.Ex.____" or "D.Ex.____" to conform to the parties' designations). Of course none of those materials will be considered for purposes of the Rule 12(b)(6) motion.
[4] All further dates also refer to 1986 unless otherwise noted.
[5] Future or contemplated future debt, rather than current debt, is the subject of the typical non-standby LOC. If the debt were currently due and owing and intended to be paid currently, a simpler form of commercial document (a check or bank draft) would be all that would be needed. This case illustrates still another use of the LOC: providing for a current debt of the Debtor, with Issuer furnishing assurance via a standby LOC that Debtor would in fact pay that debt.
[6] Further references to the Bankruptcy Code will take the form "Bankruptcy § ____," referring to the numbering in Title 11.
[7] Some scholars believe Section 547(c)(1) was simply a codification of Dean (see, e.g., Duncan, Delayed Perfection of Security Interests in Personal Property and the Substantially Contemporaneous Exchange Exception to Preference Attack, 62 Neb.L.Rev. 201, 210 (1983)).
[8] That approach is not, of course, the only one the law could take. It might be possible to apply for example a sort of LIFO approach, in which a creditor who has most recently enriched the estate by extending credit in the form of money or goods would be entitled to recapture that new value via a preference, on the theory that the earlier creditors would then be no worse off than if the later credit had never been extended in the first place. But that sort of rule, though arguably just as fair as the one the law has chosen instead, would be a good deal more difficult to administer as a practical matter.
[9] Because all the facts are not before this Court on the present motion, this opinion should not be misread as a holding that Pine Top would necessarily be entitled to a summary judgment against Century. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2345091/ | 223 F. Supp. 2d 1244 (2002)
Patricia GARRETT, Plaintiff,
v.
The UNIVERSITY OF ALABAMA AT BIRMINGHAM BOARD OF TRUSTEES, Defendant,
United States of America, Intervenor.
No. Civ.A. 97-AR-0092-S.
United States District Court, N.D. Alabama, Southern Division.
September 4, 2002.
*1245 Richard J. Ebbinghouse, Deborah A. Mattison, Susan M. Culbreath, Gordon Silberman Wiggins & Childs, Birmingham, AL, for Plaintiff.
Harold L. Jackson, U.S. Department of Justice Disability Rights Div., Washington, DC, for Intervenor.
Lisa Huggins, Gary C. Smith, UAB Office of Counsel, Birmingham, AL, for Defendant.
MEMORANDUM OPINION
ACKER, District Judge.
The above-entitled case seems destined to stay in the courts a while longer. It will probably show up again on the calendar of the Supreme Court of the United States unless the Court heads it off by granting the petition for certiorari filed by the State of Hawaii on June 20, 2002, seeking a review of the Ninth Circuit's decision in Vinson v. Thomas, 288 F.3d 1145 (9th Cir.2002). Vinson presents the same question presented in this case.
Patricia Garrett ("Garrett") filed her original complaint on January 14, 1997, alleging that while employed by the University of Alabama at Birmingham Board of Trustees ("UAB"), she was discriminated against because of her breast cancer. She invoked both the Americans with Disabilities Act, 42 U.S.C. §§ 12102, et seq. ("ADA"), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehab Act"). UAB's first line of defense was its interposition of the Eleventh Amendment as an absolute bar both to the ADA claim and to the Rehab Act claim. Garrett quickly and correctly pointed out that when Congress enacted these discrimination statutes it had in mind the enforcement of the Equal Protection Clause of the Fourteenth Amendment, a permitted way under certain circumstances for overriding a State's Eleventh Amendment immunity. This court disagreed with Garrett, finding that hers were not the circumstances for such a Congressional override. Garrett v. Bd. of Trustees of U. of Ala., 989 F. Supp. 1409 (N.D.Ala.1998). This court did not address Garrett's alternatively suggested way around the Eleventh Amendment as to her Rehab Act claim, namely, Congress's redundant invocation of the Spending Clause of the Constitution, Art. I § 8, Cl. 1. Garrett's present argument for enforcing the Rehab Act against a state agency such as UAB in a federal court is premised on two statutes. They must be considered separately and severally. The first is:
No otherwise qualified individual with a disability in the United States, as defined in section 706(20) [Congress meant § 705(20)] of this title shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...
29 U.S.C. § 794(a). (emphasis supplied).
The second is:
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794] ... or the provisions of *1246 any other federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1).
Garrett's original complaint did not allege that any of the conduct plaintiff complains of occurred "under any program or activity receiving Federal financial assistance." Perhaps Garrett did not think she needed to allege the transparently obvious. Neither did she allege that UAB had waived its Eleventh Amendment immunity with respect to her separate Rehab Act claim by Alabama's having accepted any money from the United States. Again, perhaps Garrett thought it superfluous to allege the obvious.
Although the Rehab Act provided Garrett an alternative to the ADA for pursuing a disability claim against her employer, when this case was last before this court the entire focus was on her ADA claim, as to which Congress had relied exclusively on the Equal Protection Clause for the express and unequivocal abrogation of Eleventh Amendment protection for a State. Without this court's saying a word on the right of Congress to employ the Spending Clause as a Constitutional basis for authorizing a private action against a state agency in the Rehab Act, this court granted summary judgment in favor of UAB, dismissing all of Garrett's claims, including her Rehab Act claim. Garrett, 989 F. Supp. 1409. Earlier, the court had dismissed with prejudice Garrett's claim for punitive damages under the Rehab Act, and accompanied its order of dismissal with a finding of finality under Rule 54(b), F.R.Civ.P. Garrett did not appeal from that order. However, when summary judgment was granted against her on all of her remaining claims, she did appeal to the Eleventh Circuit. She was, of course, required to appeal from all adverse dispositive rulings about which she wished to complain.
Because in 1999 the Eleventh Circuit disagreed with this court with respect to the right of Congress under the Equal Protection Clause to abrogate Eleventh Amendment immunity both as to ADA claims and Rehab Act claims, the Eleventh Circuit did not speak to the viability of Garrett's claim under the Rehab Act under an alleged Spending Clause justification for circumventing the Eleventh Amendment. Neither did the Eleventh Circuit mention the absence of an allegation by Garrett in her complaint that UAB had received federal funds and by doing so had waived its Eleventh Amendment immunity. Garrett v. Univ. of Ala. at Birmingham Bd. Trs., 193 F.3d 1214 (11th Cir.1999).
During Garrett's appeal to the Eleventh Circuit, the United States of America intervened on her behalf. After the Eleventh Circuit ruled for Garrett, UAB petitioned for certiorari, and the Supreme Court took the case. After many amici curiae briefs were filed, the Supreme Court in a 5-4 decision, disagreed with Garrett, disagreed with the United States, disagreed with the Eleventh Circuit, agreed with UAB, agreed with this court, and held that Congress had no right under the Equal Protection Clause to wipe out a State's insulation from private actions brought under the ADA. The Supreme Court never mentioned, and apparently was not asked to look at, the question of UAB's possible vulnerability because of the Congressional invocation of the Spending Clause in the Rehab Act. Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001).
Pursuant to the mandate it received from the Supreme Court, the Eleventh Circuit affirmed this court, both as to Garrett's ADA claim and as to her Rehab Act claim. But, upon Garrett's application for rehearing, the Eleventh Circuit reconsidered *1247 and held that the Eleventh Amendment issue had not been procedurally barred, and was an open question. It quoted UAB's brief on application for rehearing as follows:
The district court's order and opinion which opened the way for the original appeal of this case did not address the possibility that the plaintiffs' Rehabilitation Act claims might, or might not, be the source of jurisdiction via a waiver of state immunity. It simply was not analyzed or discussed; frankly, none of the parties presented much in the way of argument on the issue of waiver. In view of these circumstances, the best course would be for this Court to remand in order to allow the district court to analyze the issue and, if it deems appropriate, to develop an evidentiary record.
(emphasis supplied). Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 276 F.3d 1227, 1228 (11th Cir.2001).
Because of this strange concession by UAB, the Eleventh Circuit remanded the case to this court with the specific instruction "to consider the argument that defendants [at that time there were consolidated cases involving two separate state agencies] have voluntarily waived their Eleventh Amendment immunity under § 504 of the Rehabilitation Act by their receipt of federal financial assistance conditioned upon such a waiver, and to conduct such further proceedings as may be consistent with this decision." Id., 1229.
After this court received the above-quoted mandate from the Eleventh Circuit, Garrett and the United States were allowed to explore what UAB could not deny, namely, that UAB, and all other State agencies in Alabama, have received federal financial assistance. Unremarkably, UAB filed a motion for summary judgment.
In defense of UAB's motion for summary judgment, Garrett not only relies on waiver by virtue of UAB's and Alabama's having pocketed federal dollars, but she has tried to introduce an alternative argument for waiver based on UAB's litigation conduct. The court respectfully declines to consider Garrett's latter argument. It goes beyond what was contemplated by the Eleventh Circuit, and the court is not tempted at this late date to expand the inquiry beyond the necessary.
There was actually no need for discovery, or to "develop an evidentiary record." It would have been a futile and expensive enterprise. It quickly became obvious that the only remaining issue is purely a question of law, because the only pertinent fact is undisputed. That fact is that UAB, like every other major institution of higher learning in the United States, has received many federal dollars, both before and after the Rehab Act was enacted. The degree to which the decision-makers at UAB, or any other State Agency, actually deliberated over whether to continue to accept federal dollars after the Rehab Act was enacted is unknown. What the governing body of UAB, with or without the help of its lawyers, would have done if they had carefully studied the Rehab Act when it was signed by the President and came off the Government press, is highly speculative. The court guesses that UAB could not have weaned itself from federal dollars, even if, philosophically, it had wanted to. As recently as last week, that great private institution, Harvard University, decided to allow military recruiters back on campus when the only alternative was to lose over $300,000,000 in federal funding. Did Harvard act "voluntarily," or did it act "under duress?" Oppression arises when there is severe inequality in bargaining power. The result of such an imbalance is an absence of meaningful choice, and no real negotiation. Agreements arrived at under *1248 such circumstances are often unconscionable. Does the law of contracts apply to the United States?
This court will reluctantly assume arguendo that UAB knowingly accepted federal dollars, fully understanding that by doing so it was exposing itself to the possibility that it could be sued under the Rehab Act. This is not a valid assumption if the rationale of the Second Circuit in Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir.2001), is accepted. In Garcia, the Second Circuit held:
Because § 504 of the Rehabilitation Act and Title II of the ADA offer essentially the same protections for people with disabilities, see Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir.1999), our conclusion that Title II of the ADA as a whole exceeds Congress's authority under § 5 of the Fourteenth Amendment applies with equal force to § 504 of the Rehabilitation Act. However, unlike Title II of the ADA, § 504 was enacted pursuant to Congress's authority under the Spending Clause of Article I. See U.S. Const. art. I, § 8, cl. 1.
When providing funds from the federal purse, Congress may require as a condition of accepting those funds that a state agree to waive its sovereign immunity from suit in federal court. See College Savings Bank, 527 U.S. at 686-87, 119 S. Ct. 2219, 144 L. Ed. 2d 605; see also South Dakota v. Dole, 483 U.S. 203, 207, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987). Here, Garcia argues that § 2000d-7 of Title 42 operates as such a condition. Section 2000d-7 provides in pertinent part that,
[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of Section 504 of the Rehabilitation Act of 1973.
While we agree with Garcia that this provision constitutes a clear expression of Congress's intent to condition acceptance of federal funds on a state's waiver of its Eleventh Amendment immunity, that conclusion alone is not sufficient for us to find that New York actually waived its sovereign immunity in accepting federal funds for SUNY. But see Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir.2000) (en banc). As the Supreme Court instructed in College Savings Bank.
[t]here is a fundamental difference between a State's expressing unequivocally that it waives its immunity and Congress's expressing unequivocally its intention that if the State takes certain action [e.g., accepting federal funds] it shall be deemed to have waived that immunity.
College Savings Bank, 527 U.S. at 680-81, 119 S. Ct. 2219, 144 L. Ed. 2d 605. As is the case with the waiver of any constitutional right, an effective waiver of sovereign immunity requires an "intentional relinquishment or abandonment of a known right or privilege." Id. at 682, 527 U.S. 666, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)) (emphasis added); See also College Savings Bank, 527 U.S. at 682, 119 S. Ct. 2219, 144 L. Ed. 2d 605 ("State sovereign immunity, no less than the right to trial by jury in criminal cases, is constitutionally protected."); see also McGinty v. New York; 251 F.3d 84, 95 (2d Cir.2001) (noting "stringent" standard for finding waiver of state sovereign immunity). And in assessing whether a state has made a knowing and intentional waiver, the Supreme Court has instructed that "every reasonable presumption against waiver" is to be indulged, College Savings Bank, 527 *1249 U.S. at 682, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (internal quotation marks omitted). Turning to the instant case, we are unable to conclude that New York in fact waived its sovereign immunity against suit under § 504 when it accepted federal funds for SUNY. At the time that New York accepted the conditioned funds, Title II of the ADA was reasonably understood to abrogate New York's sovereign immunity under Congress's Commerce Clause authority. Indeed, the ADA expressly provided that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation...." 42 U.S.C. § 12202. Since, as we have noted, the proscriptions of Title II and § 504 are virtually identical, a state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits, College Savings Bank, 527 U.S. at 682, 119 S. Ct. 2219, 144 L. Ed. 2d 605, since by all reasonable appearances state sovereign immunity had already been lost, see Kilcullen, 205 F.3d at 82.
Accordingly, Garcia's § 504 damage claim against New York fails because New York had not knowingly waived its sovereign immunity from suit.
Id. at 113-15.
The United States, as intervenor, understandably disagrees with the Second Circuit. This court finds Garcia well reasoned and persuasive.
Another approach was taken by the Fifth Circuit in Reickenbacker v. Foster, 274 F.3d 974 (5th Cir.2001). The Fifth Circuit held:
Congress may abrogate state sovereign immunity when it "both unequivocally intends to do so and `act[s] pursuant to a valid grant of constitutional authority.'"
The ADA and Rehabilitation Act indisputably contain unequivocal statements of intent to abrogate. It is now settled that Congress may not act to abrogate state sovereign immunity through any of its Article I enumerated powers, but may abrogate state sovereign immunity through a proper exercise of its powers under § 5 of the Fourteenth Amendment. As a result, States may only be sued under the ADA and Rehabilitation Acts to the extent that those statutes, inasmuch as they are directed at unconstitutional discrimination by the States, are appropriate exercises of the § 5 power.
Id. at 977. (emphasis supplied).
Thus, according to the Fifth Circuit, Congress cannot use the Spending Clause to abrogate a State's immunity, the Spending Clause being in Article I. It is perhaps because of Reickenbacker (although that case is not mentioned by UAB) that Garrett disclaims any intent to argue "abrogation," and only argues "waiver." To this court the distinction is without a difference. Garrett says that while the Spending Clause may not entitle Congress to "abrogate," Congress can take away all federal funds unless a State "waives" its immunity from suit. Because UAB is part of a university system and shares the trustees who govern the University of Alabama at Tuscaloosa, a federal dollar arriving at Tuscaloosa would be just as destructive of Eleventh Amendment immunity as a dollar received at Birmingham, that is, if the Rehab Act accomplishes what Garrett says it does. UAB's decision-makers, if they knew nothing else, knew that the Rehab Act purported to abrogate Eleventh Amendment immunity under the Equal Protection Clause. The fact that the Eleventh Circuit knew the Congressional intent under the Equal Protection Clause convinces this court that UAB was on the same page as the Second Circuit in Garcia *1250 and the Fifth Circuit in Reickenbacker. You cannot voluntarily waive something you have unequivocally been told you do not have.
On June 10, 2002, the very day that UAB submitted its brief in support of its post-mandate motion for summary judgment, the Ninth Circuit decided Vinson, reaffirming its earlier holding that "states are subject to suit in federal court under section 504 of the Rehabilitation Act funds." 288 F.3d 1145, 1151. Why the Ninth Circuit limited the reach of the Rehab Act to state agencies that receive "Rehabilitation Act funds" is beyond this court's comprehension. Section 504 of the Rehab Act (42 U.S.C. § 794), purports to expose state agencies to suit by any and every person who is "subjected to discrimination under any program or activity receiving Federal financial assistance." There is nothing in this language that limits the source or purpose of the "federal financial assistance" that would open the federal courthouse door to a plaintiff against a State. In any event, this court disagrees with the majority in Vinson. Instead, this court agrees with the dissent of Judge O'Scannlain, as well as with Judge O'Scannlain's dissent from the denial of hearing en banc in Douglas v. Cal. Dep't of Youth Auth., 285 F.3d 1226 (9th Cir.2002). The court will not quote or repeat to the point of plagiarism what Judge O'Scannlain so well said in his dissents in Vinson and in Douglas. Suffice it to say that he logically reached the conclusion that the Spending Clause cannot operate as a device for circumventing a State's Eleventh Amendment immunity at the whim of Congress. The traditional presumption against a waiver, reinforced by the Supreme Court's opinion in Garrett, this very case, precludes a successful Congressional override of the Eleventh Amendment in disability discrimination cases.
On June 17, 2002, one week after Vinson was decided, the Supreme Court decided Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097, 153 L. Ed. 2d 230 (2002). If Judge O'Scannlain had had Barnes to work with, he might have been writing the majority opinion in Vinson. In Barnes, the Supreme Court dealt specifically with § 504 of the Rehab Act, although not with the Eleventh Amendment. The Court was there dealing with the efficacy of a litigant's reliance on the reference in the Rehab Act to the Spending Clause as a justification for seeking punitive damages. Speaking for the Court, Justice Scalia said:
Title VI invokes Congress's power under the Spending Clause, U.S. Const., Art. I, § 8, cl. 1, to place conditions on the grant of federal funds. See Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 640, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) (Title IX). We have repeatedly characterized this statute and other Spending Clause legislation as "much in the nature of a contract in return for federal funds, the [recipients] agree to comply with federally imposed conditions." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981) (emphasis added); see also Davis, supra, at 640, 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839; Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 286, 118 S. Ct. 1989, 141 L. Ed. 2d 277, (1998); Guardians Assn. v. Civil Serv. Comm'n of New York, 463 U.S. 582, 599, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983) (opinion of White, J.); id., at 632-633, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (Marshall, J., dissenting); Lau v. Nichols, 414 U.S. 563, 568-569, 94 S. Ct. 786, 39 L. Ed. 2d 1, (1974). Just as a valid contract requires offer and acceptance of its terms, "[t]he legitimacy of Congress' power to legislate under the spending power ... rests on *1251 whether the [recipient] voluntarily and knowingly accepts the terms of the `contract.' ... Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Pennhurst, supra, at 17, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694.
* * * * * *
Some authorities say that reasonably implied contractual terms are those that the parties would have agreed to if they had adverted to the matters in question. See 2 Farnsworth, supra, § 7.16 at 335, and authorities cited. More recent commentary suggests that reasonably implied contractual terms are simply those that "compor[t] with community standards of fairness," Restatement (Second) of Contracts § 204, Comment d.
* * * * * *
And for the same reason of unusual and disproportionate exposure, it can hardly be said that community standards of fairness support such an implication. In sum, it must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages.
(emphasis supplied). Barnes, 536 U.S. 181, 122 S. Ct. 2097, 2100-02, 153 L. Ed. 2d 230.
The court keeps in mind that Garrett in her original complaint sued UAB under the Rehab Act for punitive damages. Barnes would have eliminated Garrett's punitive damages claim if this court had not already done so. But, the rationale of Barnes goes farther than simply to protect a state agency from punitive damages. As a matter of law, the purported waiver terms set forth in § 504 of the Rehab Act do not "comport with community standards of fairness," to use Justice Scalia's phrase. The concept of waiver in the Rehab Act may be fair in the view of some, but in this court's view, it does not meet community standards of fairness.
Lastly, the ambiguity in § 504 stands in the way of a successful waiver. Whether Congress could "unambiguously" impose a waiver of Eleventh Amendment immunity as a condition to a particular federal grant is a question that is not before the court, because Congress in § 504 did not limit the proscriptions of the Rehab Act to State agencies; and it said nothing in the Rehab Act to make it absolutely clear to State agencies that if they continued to accept federal dollars, they would waive their Eleventh Amendment immunity, and the immunity of every other of their fellow State entities. It is theoretically possible that some agency could find a way to get along without a single federal dollar, but to succeed in using withdrawal as a club, the threat must be fully comprehensible. The Rehab Act's threat is hard to get a handle on, particularly when the emphasis was always on the Equal Protection justification. This may explain why nobody tried to get a handle on it sooner in this case.
Conclusion
It is true, as the Eleventh Circuit says, that the Supreme Court in Garrett did not address the question of the Spending Clause's effect on the Rehab Act's application to UAB. This court thinks, however, that Garrett either implicitly ruled on it or obliquely predicted the outcome, and that any remaining doubt evaporated when Barnes was decided. Barnes strongly suggests that the Supreme Court will not allow Garrett to travel a secondary route to get where she could not go in a frontal assault, even with the United States of America at her side. The United States may be even more interested in this case this time around than it was last time, because it probably does not want to lose the Spending Clause as an instrument of *1252 persuasion. If the Supreme Court finds that Congress can do what it has tried to do in the Rehab Act as a back-up means of obtaining compliance, the use of the Spending Clause will expand exponentially.
A separate order granting UAB's motion for summary judgment will be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/239066/ | 231 F.2d 699
Louis WEINSTOCK, Appellant,v.UNITED STATES of America, Appellee.
No. 12656.
United States Court of Appeals District of Columbia Circuit.
Argued October 5, 1955.
Decided January 5, 1956.
Mr. Harry Sacher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Messrs. Joseph Forer and David Rein, Washington, D. C., were on the brief, for appellant.
Mr. John D. Lane, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., Messrs. Lewis Carroll and William Hitz, Asst. U. S. Attys., and Mr. Cecil R. Heflin, Attorney, Dept. of Justice, were on the brief, for appellee.
Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.
PRETTYMAN, Circuit Judge.
1
Appellant was indicted on two counts for making a false statement before an agency of the United States and was convicted on one count. The false statement was alleged to have been made in an affidavit filed by him with the Subversive Activities Control Board.
2
The Attorney General of the United States filed with the Board, on April 22, 1953, a petition against the "United May Day Committee".1 He sought to require the Committee to register as a Communist-front organization. In his petition he alleged: "From in or about 1946 up to and including the date of the filing of this petition and continuing thereafter, there has existed and operated in the United States an organization known by various names, which is now known as the United May Day Committee (hereinafter referred to as the UMDC)." On May 6, 1953, a copy of the petition was served upon appellant, he being described in the marshal's return upon the service as "Chairman, United May Day Committee". Weinstock filed a motion to quash the service. The pertinent part of that motion was:
3
"3. There is no Respondent upon which service can be made or against which the relief prayed for in the petition can be granted for the reason that the United May Day Committee is not in existence, either under that name or any other name, and was not in existence on the date of service of the petition on movant.
4
"Movant submits the annexed affidavit in support of the foregoing motion."
5
The supporting affidavit was in eleven paragraphs. It is long, but in order to understand our position in the case it is necessary that nearly the whole of it be read. We have therefore reproduced paragraphs 4 to 11, inclusive, in an Appendix to this opinion, the first three paragraphs being purely formal. In his affidavit Weinstock set forth in considerable detail facts with reference to the May Day holiday in New York City. He said he had personal knowledge of the manner in which the celebration was conducted from 1935 to and including 1953. He said that in about March of each year, except for the war years, interested individuals would call a meeting for the purpose of organizing a committee to conduct the celebration. This meeting adopted a name for the committee, elected officers, and the celebration was duly held. Shortly thereafter, Weinstock said, a meeting of those who had participated occurred, at which a report of the committee's activities and a final financial report were made and the committee was dissolved. Thus, he said, the committee was organized each year, functioned for approximately six weeks, and then was dissolved.
6
Weinstock said that during the years 1935 to 1953 the names of the committee had varied, as had the identities of the individuals who called the meetings and constituted the committee. He said that "United May Day Committee", "United Front May Day Committee", and "United Labor and Peoples' Committee for May Day" were among the names used for the committee and that the last had been the name by which the committee had been known from 1949 through 1953.
7
Weinstock then described in considerable detail the organization of the committee for 1953 and the manner in which the celebration on May Day of that year had been conducted. He said he had been administrative secretary for that committee. He said that on May 5, 1953, the committee held its final meeting and was dissolved and that at a meeting, held May 11th, of the endorsers of and participants in the celebration the final reports were approved.
8
In the fourth paragraph of the affidavit Weinstock included the sentence, "There has been no committee or organization known as or having the name United May Day Committee since May, 1948." In the indictment upon which he was convicted it was alleged this statement was known by him to be false, in that there was in the years 1950, 1951, 1952 and 1953 a committee known as the United May Day Committee.
9
The situation presented by the Attorney General's petition, the motion to quash, and the affidavit is perfectly clear. The Attorney General claimed that there was on May 6, 1953, and had been since about 1946, an organization known by various names, being in 1953 known as the United May Day Committee. Weinstock took the position that there had been since 1935, except for the war years, a committee annually organized and dissolved; that there had been such a committee in 1953 but that it had dissolved by its own action on May 5, 1953. He said that in prior years the committee had been named "United May Day Committee" but that in the years 1949-1953 it was called "United Labor and Peoples' Committee for May Day". His point, clearly and unequivocally presented, was that on May 6, 1953, the committee was not in existence. He specifically asserted the committee was not in existence under any name. The Attorney General on the contrary asserted the existence of the committee.
10
The crime for which Weinstock was indicted is described in Section 1001, Title 18, of the United States Code.2 That section reads as follows:
11
"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."
12
The first clause of the foregoing statute requires that the statement of the accused be false as to "a material fact", and we held in Freidus v. United States,3 in respect to the whole section, that "this highly penal statute must be construed as requiring a material falsification."
13
The precise crux of the controversy is whether the statement "There has been no committee or organization known as or having the name United May Day Committee since May, 1948" was material to an issue posed either by the motion to quash or by the petition.
14
"Material" when used in respect to evidence is often confused with "relevant", but the two terms have wholly different meanings. To be "relevant" means to relate to the issue. To be "material" means to have probative weight, i. e., reasonably likely to influence the tribunal in making a determination required to be made. A statement may be relevant but not material. Professor Wigmore depicts with some acerbity the difference between relevancy and materiality, "the inaccuracy of our usage" of the terms, and "the harmfulness of this inveterate error".4 Materiality, he maintains, is a matter of substantive law and does not involve the law of evidence. He does not include "materiality" in the topics treated in his volumes on Evidence.
15
The term "material" is used in many fields of law; for example, insurance law, bankruptcy, agency, motions for new trial upon the ground of newly discovered evidence, and in respect to perjury. In respect to materiality in perjury Blackstone said, "* * * for if it only be in some trifling collateral circumstance, to which no regard is paid, it is not penal.5 The meaning of the word appears to be consistent in these various fields. The test is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made.6
16
Materiality must be judged by the facts and circumstances in the particular case. The color of an accused's hair may be totally immaterial in one case, but in other circumstances the color of his hair may be not only material but decisively so.7
17
Since the jury in the case at bar found the accused guilty we may assume it found the statement which is the basis of the indictment false. But we think that in the setting in which it was made the statement was not material. If the one sentence had stood alone it might well have been material. But in context, as merely part of the long affidavit, it was immaterial, wholly without weight or influence in any decision to be made by the Board.
18
The issue posed was whether the committee was a continuous organization or was an annual organization which existed for only six weeks each year, and, more particularly, whether the committee was in existence on May 6, 1953. We think no tribunal, in passing either upon the petition or upon the motion to quash, would have been influenced in the slightest by the name by which the committee was known, either on May 6, 1953, or at any other time, whether the name was United May Day Committee or United Labor and Peoples' Committee for May Day. The Attorney General had said in his petition that the committee had operated under various names; Weinstock agreed, also saying it had had various names. Surely the Board would have paid no attention whatsoever to the insignificant difference between the names under which the committee went. Had it found all the other facts in dispute to be as the Attorney General claimed them to be, surely it would have permitted as a mere formality an amendment to the title of the proceeding.
19
We cannot imagine that Weinstock, in supporting his motion to quash before the Board, would have rested any part of his case upon the minute difference in name; and we cannot conceive of the Attorney General, in opposing that motion or in supporting his petition, conceding the slightest fraction of his position if the Board had found a committee in existence on May 6, 1953, which was known as the United Labor and Peoples' Committee for May Day rather than the United May Day Committee. Thus it is apparent, both from the Attorney General's petition and from Weinstock's affidavit, that no question was intended as to the name of the committee.
20
It may be argued from the Government's point of view that the permanence of the name (the use of the same name) throughout the whole of a long period tends to prove the committee was a permanent organization. So viewed, the sentence, it could be argued, would be material upon the issue posed by the motion to quash. But the Attorney General nowhere alleged that United May Day Committee was the permanent name of the organization. He did not seem to regard the permanence of the name as essential to his position. Of more importance, however, Weinstock himself said in his affidavit that the committee functioned under one name, with only variations as to the year, during the whole of the period from 1949 to 1953. So he admitted substantial identity of the name over a long period. The difference between Weinstock and the Government as to the name is not whether the same name was used over the years but merely what that name was. That difference was wholly immaterial to the issues posed. If it were agreed that the same name was used over a period of years, it is clear that whether the name used was one name or another is totally immaterial.
21
It may well be that the statement as to the current name of the committee would be admitted into evidence as relevant. An accused's name or a witness's name is admissible so far as relevancy is concerned. But we are not dealing with a question of bare relevancy.
22
The issue to which the false statement is material need not be the main issue; it may be a collateral issue. And it need not bear directly upon the issue but may merely augment or diminish the evidence upon some point. But it must have some weight in the process of reaching a decision. We think the sentence here involved had no such weight in the circumstances in which it was made, that is, in the context of the whole affidavit.
23
Of course, as we have indicated, if the statement here involved had been made by Weinstock without anything more being said by him, it might have been material. If he had said simply, "There has been no committee or organization known as or having the name United May Day Committee since May, 1948", and had stopped there, the statement could well be read as an unequivocal denial of the existence of any committee for many years. Such a statement could well have influenced the Board in passing upon the motion to quash or upon the petition. But Weinstock did not do that. He explained that there had been committees; that they had had various names; that there had been such a committee in existence the day before service of the petition; but he insisted that on the day of service no such committee was in existence under the name United May Day Committee or under any other name. It is this context which robs the lone sentence of any materiality — any possible influence upon the Board in reaching its decision. In context the sentence is a parenthetical observation upon what name the committee used from 1949 to 1953. What the name was, so long as it was the same over the period, was immaterial. What might have been material under other facts and circumstances or in another context was inconsequential and of no weight under the circumstances and in the context actually existing.
24
Materiality, the Supreme Court said in Sinclair v. United States,8 is a question for the court. Upon that premise it held pertinency in prosecutions for refusal to answer questions to be a matter for the court to determine.9 The same reasoning necessarily applies in respect to this false statement statute. The trial court should have directed a judgment of acquittal in the present case. Its judgment of conviction must therefore be
25
Reversed.
APPENDIX
SUBVERSIVE ACTIVITIES CONTROL BOARD
No. 111-53
26
Herbert Brownell, Jr., Attorney General of the United States, Petitioner
27
v.
28
United May Day Committee, Respondent.
29
AFFIDAVIT IN SUPPORT OF MOTION TO QUASH SERVICE OF THE PETITION
30
State of New York |
> ss.:
County of New York |
31
Louis Weinstock, being first duly sworn, deposes as follows:
32
* * * * * *
33
4. There has been no committee or organization known as or having the name United May Day Committee since May, 1948. The statement of the Attorney General in Section I of the petition that "from in or about 1946 up to and including the date of the filing of the petition and continuing thereafter, there has existed and operated in the United States an organization known by various names, which is now known as the United May Day Committee" is not true. If, as stated in the verification to the petition, this statement is based on investigative reports of the Federal Bureau of Investigation, that agency is misinformed as to the facts and has misled and misinformed the Attorney General.
34
5. The facts with reference to the celebration of the May Day holiday in New York City and the organization of committees to conduct such celebrations are set forth in the following paragraphs.
35
6. I am informed and believe that May Day has been celebrated as a labor and people's holiday in New York City substantially annually since 1890. The customary manner of celebrating this holiday has been by conducting a parade or open air meeting in the streets of New York in which numerous organizations and individuals have participated. I have personal knowledge of the manner in which the May Day celebration was organized and conducted annually from 1935 to and including 1953, with the exception of the years 1942 to 1945 inclusive, when no outdoor celebration was held by reason of the war.
36
7. Annually, in or about the month of March, from 1935 to 1953 (with the exception of the war years) individuals interested in celebrating May Day and acting on their own behalf or on behalf of trade unions or other organizations have issued a call addressed to all interested individuals and organizations in the city to attend a meeting for the purpose of organizing a committee to sponsor and conduct the May Day celebration for that year. Such meetings were held annually (except for the war years). Those present at the meeting formed a committee for the exclusive purpose of organizing and conducting the May Day celebration for that year. They adopted a name for the committee and elected officers and members of an administrative committee who were authorized to make all necessary arrangements for the celebration, including application to the city authorities in the name of the committee for permission to use the streets. Shortly following May Day of each year, after the committee had conducted the celebration and performed its only function, meetings of the officers and administrative committee and of representatives of organizations which had endorsed and participated in the celebration were held. At these meetings a report of the committee's activities and a final financial report were made and approved and the committee dissolved. Thus, in each year, a committee was organized in the manner and for the purpose described above, functioned for approximately six weeks, and then dissolved, ceasing to carry on any further functions or activities whatsoever.
37
8. During the years 1935-1953, the names of the committees which were organized annually in the manner above described, varied. The identity of the individuals who called the initial organizing meetings as well as the personnel of the officers and executive committees of these committees, likewise varied. "United May Day Committee", "United Front May Day Committee", and "United Labor and Peoples' Committee for May Day" were among the names used. In various years I have been elected to various offices in these committees.
38
9. The committees which sponsored the May Day celebrations and parades in the years 1949 to 1953, inclusive, were called the United Labor and Peoples' Committee for May Day of 1949, 1950, 1951, 1952 and 1953, respectively.
39
10. In March 1953 a group of individuals, including myself, organized themselves as a provisional committee for May Day, 1953 and issued a call for a meeting which was held at the St. Nicholas Sport Center, New York City, on April 4, 1953 for the purpose of organizing a committee to conduct the 1953 May Day celebration. The meeting voted to establish a committee with the name "United Labor and Peoples' Committee for May Day of 1953" for the sole and exclusive purpose of conducting the 1953 May Day celebration. The meeting elected an administrative committee, and officers consisting of three co-chairmen, an executive secretary and an administrative secretary. I was elected to the office of administrative secretary of the committee. The officers and administrative committee elected by the meeting proceeded to make all arrangements for the celebration, including the making of an application in the name of the committee, to the city authorities for a permit to conduct a parade on the streets of the city. The application was denied. However, a permit was issued to the committee for an open-air meeting in Union Square, a public square in New York City. A meeting was held pursuant to this permit and under the auspices of the committee on the afternoon of May 1, 1953, and was addressed by a number of speakers.
40
11. A meeting of the officers and members of the administrative committee of the United Labor and Peoples' Committee for May Day of 1953, having been duly called, was held on May 5, 1953. A report of the committee's activities and a final financial report were presented to and approved by the meeting. Thereupon, a resolution was adopted that, its function having been discharged, the United Labor and People's Committee for May Day of 1953 be dissolved. The meeting further fixed May 11, 1953 as the date of a meeting of those who had endorsed and participated in the celebration for the purpose of making a final report to them. Pursuant to the resolution referred to above, the committee ceased to function or exist after May 5, 1953. The meeting of the endorsers and participants in the celebration was held on May 11, 1953. A report of activities, a final financial report and a report of the action of the officers and executive committee dissolving the United Labor and People's Committee for May Day of 1953 were submitted to the meeting and approved.
41
[Signed] LOUIS WEINSTOCK
Louis Weinstock
Subscribed and sworn to
before me this 3rd
day of June 1953
[Signed] MOSES C. WEINMAN
Notary Public
[SEAL]
Notes:
1
Sec. 13(a), Internal Security Act of 1950, 64 Stat. 998, 50 U.S.C.A. § 792(a)
2
62 Stat. 749 (1948)
3
96 U.S.App.D.C. 133, 223 F.2d 598, 601 (1955)
4
1 Wigmore, Evidence § 2 (3d ed. 1940)
5
4 Bl.Comm. * 137
6
Accord: Carroll v. United States, 16 F.2d 951 (2 Cir., 1927), certiorari denied 273 U.S. 763, 47 S. Ct. 477, 71 L. Ed. 880 (1927); Pyle v. United States, 81 U.S.App.D.C. 209, 156 F.2d 852 (D.C. Cir.1946); Robinson v. United States, 72 App.D.C. 254, 114 F.2d 475 (D.C.Cir. 1940); Blackmon v. United States, 108 F.2d 572 (5 Cir., 1940); Central & S. West Utilities Co. v. Securities & E. Comm., 78 U.S.App.D.C. 37, 136 F.2d 273 (D.C.Cir.1943); Freidus v. United States, supra; Woolley v. United States, 97 F.2d 258 (9 Cir., 1938), certiorari denied 305 U.S. 614, 59 S. Ct. 73, 83 L. Ed. 391 (1938); United States v. Hendrickson, 200 F.2d 137 (7 Cir., 1952), certiorari denied 345 U.S. 926, 73 S. Ct. 785, 97 L. Ed. 1357 (1953); Willoughby v. Jamison, 103 F.2d 821 (8 Cir., 1939), certiorari denied 308 U.S. 588, 60 S. Ct. 111, 84 L. Ed. 492 (1939); Patrick v. Cochise Hotels, 76 Ariz. 136, 259 P.2d 569 (1953); State v. Fasano, 119 Conn. 455, 177 A. 376 (1935); Schloss v. Metropolitan Life Ins. Co., 177 Md. 191, 9 A.2d 244 (1939); New York Life Ins. Co. v. Kuhlenschmidt, 218 Ind. 404, 33 N.E.2d 340, 135 A.L.R. 397 (1941); People v. Kresel, 147 Misc. 241, 264 N.Y.S. 464 (1932); Knight v. Citizens Coach Co., 307 Ill.App. 251, 30 N.E.2d 180 (1940); Arkansas Power & Light Co. v. Mason, 191 Ark. 804, 87 S.W.2d 988 (1935); Sellers v. Harvey, 222 Ark. 804, 263 S.W.2d 86 (1954); 2 Wharton, Criminal Law §§ 1542-1548 (12th ed. 1932); 2 Bishop, Criminal Law § 1032 (9th ed. 1923). Possibly contra: United States v. Slutzky, 79 F.2d 504 (3 Cir., 1935).
7
See discussion in 41 Am.Jur., Perjury § 13
8
279 U.S. 263, 298, 49 S. Ct. 268, 73 L. Ed. 692 (1929)
9
See also the opinions in this court in Bowers v. United States, 92 U.S.App. D.C. 79, 202 F.2d 447 (1953), and Keeney v. United States, 94 U.S.App.D.C. 366, 218 F.2d 843 (1954)
42
DANAHER, Circuit Judge (dissenting).
43
Count I so far as is presently relevant charged that:
44
"The said false and fraudulent material statement contained in the aforementioned affidavit was that there has been no committee or organization known as United May Day Committee since May, 1948.
45
"The said statement was and was then and there known by defendant to be, false and fraudulent, in that in the years [in question] there was a committee and organization known as United May Day Committee." (Emphasis supplied.)
46
Count II differed importantly only in its reference to a "committee and organization having the name United May Day Committee." (Emphasis supplied.) The jury found the appellant guilty on the first count and not guilty on the second.
47
The trial judge carefully instructed the jury as to the difference between an organization which was "known as" United May Day Committee and one "having the name" United May Day Committee. He said, in part: "What is meant by `known as', but in I think quite simple language, is this: Was it a matter of common knowledge? Was it commonly called United May Day Committee; was it generally known, not by a handful of people, but by many people. If it was known by many people as United May Day Committee, then it was an organization which was known as United May Day Committee." Reference also was made to the testimony that business firms, members of the "Committee" and Mr. Weinstock himself referred to the organization or group as United May Day Committee. The trial judge continued: "If you find, beyond a reasonable doubt, that this group, this organization, this unincorporated group, was known as and used itself the term or title `United May Day Committee' then you . . . move to a second question, which is equally essential and which also must be proved beyond a reasonable doubt: Did Mr. Weinstock know that it was generally known as the United May Day Committee?" With admirable care, the trial judge instructed upon each and every properly applicable aspect of the jury's problem, but for present purposes we need refer but briefly to one other portion of the charge:
48
"[`The Attorney General', Mr. Sacher said,] served Mr. Weinstock with a copy of his petition, which had the effect of informing him that this United May Day Committee, as the Attorney General called it, was to be cited before the Board for such action as the Board might take, if any, with respect to it. And he served Mr. Weinstock, on the theory that Mr. Weinstock was a leading member of it, or officer, or what not.
49
"Mr. Weinstock received that; and through his lawyer, and also directly himself — which is the gravamen of the allegation made here — he made an affidavit, [the one here involved] which his lawyer submitted to the . . . Board. . . .
50
"He made his affidavit on or about June 8, 1953. And he moved, through his lawyer, to quash the service upon him, which would have had the effect, temporarily at least, of dismissing the case lodged with the Board against what was known as the United May Day Committee." (J.A. 18.)
51
The jury was told that the statement "be it true or false — which is for you to say — the statement made by the defendant here was material."
52
Examination of the affidavit appearing in the appendix to the majority opinion will reveal that Weinstock swore that "There has been no committee or organization known as . . . United May Day Committee since May 1948" and he further swore to be untrue a statement in the Attorney General's petition that "`there has existed and operated in the United States an organization known by various names, which is now known as the United May Day Committee.'" Such statements were comprehended within the first count, as above set forth. The evidence disclosed that the "Committee" not only identified itself as "United May Day Committee" for various business purposes, but under that name its telephone was listed, pursuant to a contract in the appellant's name for a telephone located in his office. Appellant was shown himself to have addressed various meetings "in the name of the United May Day Committee" and to have been introduced as "the fighting Secretary of the United May Day Committee, Louis Weinstock."
53
After the Attorney General's petition had been served upon appellant, the latter filed with the Subversive Activities Control Board and served upon the Attorney General a motion to quash the petition reading in part:
54
"Louis Weinstock, the person to whom the petition was delivered, moves to quash the service thereof on the following grounds:
55
"1. Service of the petition was not made upon the Respondent (United May Day Committee), as required by the (Internal Security) Act and the (Board's) Regulations.
56
"2. The movant is not an officer of Respondent.
57
"3. There is no Respondent upon which service can be made or against which the relief prayed for in the petition can be granted for the reason that the United May Day Committee is not in existence, either under that name or any other name, and was not in existence on the date of the service of the petition on movant.
58
"Movant submits the annexed affidavit1 in support of the foregoing motion."
59
It is true that the affidavit speciously sets forth purported facts to describe what appellant's counsel called the "amorphous" character of the unincorporated group, but the nature of the organization, whatever it was, was a proper subject for inquiry by the Board. The whole purpose of the motion to quash and the supporting affidavit was to induce the Board, in reliance upon the affidavit, to quash the service and to bring about dismissal of the proceedings. Appellant asked and expected the Board to rely upon his sworn statements. Had the Board accepted and relied upon the Weinstock affidavit, his motion to quash would have been granted. Appellant's whole challenge to the proceedings before the Board as well as to the prosecution of himself depends upon his insistence that these various short-lived committees were not "known as" the "United May Day Committee." Appellant's statements became infused with materiality because he made them material.
60
Another, but not entirely unrelated, ground predicates the correctness of the ruling by the trial judge. The relief sought by the Attorney General from the Board did not depend upon whether the Committee or each of several committees annually came into being for a week or two or more, only then to be dissolved. European May Day demonstrations have been notorious for years, and their importation into New York (as well as other cities in the United States) for the exploitation of Communist aims, the method of their organization, the means taken to promote them, the sources of their finances and comparable fields of inquiry lay properly within the Board's jurisdiction. In United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, was developed a record which was found by the Supreme Court, Dennis v. United States, 1951, 341 U.S. 494, 498, 71 S. Ct. 857, 861, 95 L. Ed. 1137, to support the broad conclusion ". . . that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language . . .." (Emphasis supplied.) Weinstock's tactics as revealed by his "false, fictitious or fraudulent statements or representations," within the language of the statute, were designed to pervert the function of the Board.2 The first count of the indictment charged that: "The said false and fraudulent material statement contained in the aforementioned affidavit was that there has been no committee or organization known as United May Day Committee since May, 1948." The jury agreed, indeed it could have come to no other conclusion than that Weinstock's statement was false, fictitious or fraudulent. The first and chief ground, supra, upon which appellant in his motion sought to quash the petition, vis.: "that service was not made upon the Respondent" (United May Day Committee), when coupled with the supporting affidavit, false in the particulars mentioned, had no other purpose than to cause the Board to take action in reliance upon it. Construing comparable language to that found in the statute applicable here, the Court said:
61
"The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction." United States v. Gilliland, 1941, 312 U.S. 86, 93, 61 S. Ct. 518, 522, 85 L. Ed. 598.
62
Thus, the Weinstock affidavit in the particulars previously considered and his motion to quash constituted an abuse and a perversion of the processes of the Board. That appellant's false statements can be deemed anything but material under the circumstances seems to me beyond acceptation.
63
Finally, even the "amorphous" character of the Committee was in issue, both as to its status as an entity by whatever name known, and at the time when service was accomplished. Every possible effort was made as shown on this record to persuade the Board to accept as fact the various statements appearing in the affidavit. It seems to me quite inconsistent to say that the very statements which can convince the majority and thus influence its decision could have had no such effect upon the Board. The fact that the Board rejected them goes to the question of perspicacity rather than materiality, I respectfully suggest.
64
I believe the trial judge was correct and that the judgment of conviction should be affirmed.
Notes:
1
See appendix to majority opinion
2
His "tactics" are not under fire, to be sure, whether obstructionist and frustrating or not, but it is not without significance that he swore that the "Committee" went out of existencethe very day before process was served on the appellant. As to the pattern of such tactics by counsel in not unrelated circumstances, see United States v. Sacher, 2 Cir., 1950, 182 F.2d 416, 423-425, affirmed, 1952, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/813183/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2012
Elisabeth A. Shumaker
Clerk of Court
WADE COLE,
Petitioner-Appellant,
v. No. 12-1316
(D.C. No. 1:12-CV-00677-LTB)
VANCE EVERETT, Warden, Kit Carson (D. Colo.)
Correctional Center; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Defendants-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before MURPHY, TYMKOVICH, and HOLMES, Circuit Judges.
Petitioner Wade Cole seeks a certificate of appealability (COA) to obtain
review of a district court order dismissing his most recent habeas application as an
unauthorized second or successive application that it lacked jurisdiction to hear under
28 U.S.C. § 2244(b)(3). We may grant a COA only if reasonable jurists could debate
whether (1) the district court’s jurisdictional ruling was correct and (2) the
allegations in the habeas application are sufficient to state a valid constitutional
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claim. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). As explained below,
Mr. Cole cannot satisfy the first requirement. We therefore deny a COA and dismiss
this appeal.
Mr. Cole was convicted after a jury trial in 2001 of enticement of a child,
Colo. Rev. Stat. § 18-3-305, and given an enhanced indeterminate sentence of ten
years to life pursuant to Colorado’s Sex Offender Lifetime Supervision Act of 1998
(SOLSA), id. § 18-1.3-1002 et seq. After a prior unsuccessful 28 U.S.C. § 2254
application, he filed the instant action under 28 U.S.C. § 2241 challenging the
constitutionality of SOLSA and seeking his immediate release. The district court
directed him to amend his application to specify that it was brought under § 2254,
and ultimately determined that it was subject to dismissal as second or successive.
Mr. Cole argued against dismissal on two bases: (1) he should be allowed to
proceed under § 2241 without § 2244(b)(3) authorization, because he is not attacking
his conviction but only challenging the constitutionality of SOLSA and his resultant
sentence; and (2) his claim did not become ripe until recently, after he served the
minimum ten years of his sentence, because the Colorado courts would not have
entertained a challenge to his SOLSA sentence before that time, when he could not
claim a right to immediate release. The district court properly rejected the first
contention, noting that while Mr. Cole was challenging the constitutionality of
SOLSA, he was doing so in order to invalidate his sentence and thereby obtain his
immediate release—relief that is clearly appropriate to a habeas application under
-2-
§ 2254, see, e.g., Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (“To the
extent [a state prisoner] is challenging the validity or legality of the sentence he is
currently serving, his claim should be brought under § 2254.”)1 The court properly
rejected the second contention, noting that challenges to SOLSA sentences may be
brought as early as direct appeal, see, e.g., People v. Clark, 214 P.3d 531, 543-44
(Colo. App. 2009), aff’d, 232 P.3d 1287 (Colo. 2010), and, more specifically, that
post-conviction relief from illegal, illegally-imposed, or constitutionally invalid
SOLSA sentences may be sought under Colo. R. Crim. P. 35(a) and (c) without
regard to whether immediate release will result (indeed, given specified time limits,
some of these challenges must be brought well before release would result). See
People v. Collier, 151 P.3d 668, 672 (Colo. App. 2006) (discussing application of
Rule 35(a) and (c) to various constitutional and statutory challenges to SOLSA
sentence); see also People v. Firth, 205 P.3d 445, 447-48, 452 (Colo. App. 2008)
(reviewing constitutional challenges to SOLSA under Rule 35(c) before defendant
had served minimum six-year term of his indeterminate sentence).2
1
In this same vein, Mr. Cole contends he is not challenging the imposition of
his sentence, but its execution, and thus should have been allowed to proceed under
§ 2241. He misunderstands the imposition/execution distinction. Everything that he
currently objects to about his SOLSA sentence was extant, enforceable, and subject
to challenge when the sentence was imposed; none of his claims concern subsequent
independent unconstitutional actions taken by those charged with its execution.
2
Mr. Cole cites cases holding that actions filed under the state habeas statute
challenging the lawfulness of continued confinement, such as actions involving good
time credits or certain parole matters, cannot be brought until immediate release
would result. As the above authorities reflect, such cases are inapposite in
(continued)
-3-
On appeal, Mr. Cole raises procedural objections to certain post-conviction
decisions of the Colorado courts. These matters are not properly before us. He also
contends that the district court should not have directed him to name his current
warden as the respondent in his amended application under § 2254, because he is
confined in a private prison facility. Given that his habeas action was properly
dismissed for lack of jurisdiction, we need not resolve who would have qualified as
the proper respondent.
The request for COA is DENIED and the appeal is DISMISSED. The pending
motion to proceed in forma pauperis is GRANTED.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
circumstances governed by Rule 35. See generally People v. Wirsching, 30 P.3d 227,
229 (Colo. App. 2000).
-4- | 01-03-2023 | 12-06-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2373489/ | 783 S.W.2d 235 (1989)
William Herman COOPER, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 6-89-049-CR.
Court of Appeals of Texas, Texarkana.
December 5, 1989.
*236 Janet Seymour Morrow, Houston, for appellant.
John B. Holmes, Dist. Atty., Cathy Herasimchuk, Asst. Dist. Atty., Houston, for appellee.
GRANT, Justice.
William Herman Cooper, Jr. appeals his conviction for the offense of murder. The jury assessed punishment at life imprisonment in the Texas Department of Corrections.
Cooper contends that the trial court erred in allowing the prosecutor to comment on his failure to call his mother as a witness and by admitting certain autopsy photographs into evidence.
Cooper was convicted of having shot and killed David Dodge on February 24, 1986, in the Cloverleaf area of Houston. He was accompanied at the time by Connie Shipman and David Hayes. Both Shipman and Hayes testified that Cooper had a .25 caliber pistol that he pointed at Dodge and directed him to get into a van that Dodge had been driving. They further testified that Cooper entered the van along with Dodge and that within moments they heard a shot. Another witness, Robert Ferii, a boyfriend of Cooper's niece, testified that while visiting the niece in Cooper's apartment in February, 1986, he overheard Cooper tell his mother that he had shot a person in the Cloverleaf area. Cooper testified that he had not told his mother that he had killed anyone.
The State interviewed Cooper's mother before the trial and contended that she confirmed that her son had indeed told her that he had killed a man. The State attempted to subpoena Mrs. Cooper for the trial, but the process server was unable to locate her. Cooper did not attempt to subpoena her or to obtain her presence in court as a witness for the defense.
The prosecutor waived opening argument during the guilt-innocence phase of the trial and reserved the right to close. Thereafter, the defense counsel made a closing argument in which he commented on the State's failure to produce witnesses to the shooting, and his remarks included the following:
MR. LIEDTKE [Defense Counsel]: ... Don't you know that if he [a detective investigating the case] was able to get one of the witnesses without a bias, prejudice, fear, criminal record, or any other kind of remote connection to what happened on February 24th 1986 but for they were present and saw what happened? Don't you know that if they could identify William Herman Cooper as being the man who shot the gun who killed David Dodge one of those witnesses would have been presented to you so that he could identify him in the courtroom and said he did it. The absence of that evidence just scares the hell out of me, ladies and gentlemen.
In her closing argument, the prosecutor commented on the fact that Cooper said that he "had to go on the run because he's on parole":
MS. DERBYSHIRE [Prosecutor]: ... Well, use your common sense. If the man didn't do anything, and he's merely standing there his parole is not going to be revoked. All he had to do was stay and tell the police, look, I was here, but I didn't shoot the guy. But he didn't do that. He went home. He packed his bags, oh, and he told his mom he did it because, you know, you just know momma *237 would be down here in a flash if he didn't say that. They would have called her, said Mrs. Cooper
MR. LIEDTKE: She knows why Mrs. Cooper isn't here. She's misrepresenting to the jury.
THE COURT: This is argument, Counsel. Counsel, have a seat.
MS. DERBYSHIRE: May I respond to that, Your Honor?
THE COURT: Yes, you may.
MS. DERBYSHIRE: You though (sic) without a doubt that Mrs. Cooper would be here, and she would be telling you everything, and you know that this man could put her on the witness stand. And there's nothing she could do because he's got the same subpoena powers as me and can bring anybody here and, therefore, there's only one reason that she's not here and that's because it's true.
MR. LIEDTKE: That is outside the record, Your Honor. And it's also a misrepresentation of known facts, prosecutory misconduct.
THE COURT: Overruled. And I don't know anything to support your position on that, Counsel.
MR. LIEDTKE: Can we have a hearing now?
THE COURT: No. We can hear it as soon as the jury is gone.
MR. LIEDTKE: It's too late, Judge.
THE COURT: No, it isn't. It can be corrected if it is.
Later, after the jury retired to deliberate, the trial court granted the defense a hearing on the objection, during which the defense counsel requested a mistrial:
MR. LIEDTKE: Ms. Derbyshire knew full well prior to her making her closing argument that Mrs. Cooper, the defendant's mother, was not available to the court, that she had been subpoenaed. And there's really even a question as to whether she had been subpoenaed, but that she wasn't available to the Court. She knew that the process server had gone out there to try to bring them in, the niece and the mother and that Ray reported back to her and to me there wasn't anybody out there. She misrepresented to the jury we could call Mrs. Cooper, but she knew full well Mrs. Cooper was not available. We'd ask for a mistrial on that ground.
. . . .
THE COURT: Overruled....
Cooper argues that the trial court erred in overruling his objection to the prosecutor's argument concerning his failure to call his mother as a witness. He contends that the comment was improper because his mother was not available to testify.
The general rule is that the State may comment in argument on the failure of a defendant to call competent and material witnesses, and the State may also argue that the reason for such failure is that any such testimony would be unfavorable to his defense. Carrillo v. State, 566 S.W.2d 902 (Tex.Crim.App. [Panel Op.] 1978); Torres v. State, 552 S.W.2d 821 (Tex.Crim.App. 1977) (failure to call sister); Fisher v. State, 511 S.W.2d 506 (Tex.Crim.App.1974) (failure to call wife); Benjamin v. State, 109 Tex. Crim. 108, 3 S.W.2d 91 (1927). An exception to this rule is when the witness, through no fault of the defendant, is not available to testify on behalf of the defendant. Where the defendant complains about such comments, he must show that the witness was not available or within his subpoena power. Mutscher v. State, 514 S.W.2d 905 (Tex.Crim.App.1974).
In the present case, Cooper contends that as a matter of law, the fact that the State had not been able to serve the witness with a subpoena showed that the witness was not available to him. The trial judge had before him the fact that the missing witness was a close relative of Cooper, the fact that Cooper had talked with his mother before the trial, and the fact that Cooper had not subpoenaed this witness or sought a continuance on the basis of her unavailability. Under the circumstances, the trial court could properly determine that the fact that this witness was unavailable to the State did not prove that the witness would not be available to her son.
*238 Cooper next urges that the trial court erred in admitting two autopsy photographs of the victim, Exhibits 2 and 12, because their prejudicial value outweighed their probative value. Exhibit 2 is a facial view of the decedent's upper torso. It shows a nasal gastric suction tube, a tracheal airway, and lateral chest stitches and vertical torso stitches on the body. Exhibit 12 is a side view of the torso from below the neck to a few inches below the genital area.
Dr. Jordan, an assistant medical examiner for Harris County, testified that he had performed an autopsy on the victim's body. He further testified that Exhibits 2 and 12 fairly and accurately depict the condition of the body at the time of the autopsy, that Exhibit 2 fairly represents the decedent and the condition in which he arrived at the Harris County morgue, and that the photograph contains the autopsy case number and the date on which the autopsy was performed. Defense counsel objected to these two and one other photograph of decedent's body on the ground that they were prejudicial and not probative of any issue, although he conceded that Exhibit 12 showed the entry wound on the body. In a colloquy among the trial judge, prosecutor, and defense counsel, the judge asked the purpose of the photographs. The prosecutor replied that one of the photographs was needed to show the number of the autopsy (recorded on the photograph) and that the other was needed to show the entry wound. The defense counsel offered to stipulate that the autopsy was performed on the victim David Dodge, but the prosecutor declined the offer. The trial judge admitted two of the photographs, Exhibits 2 and 12, and refused to admit the third.
The autopsy report was entered into evidence without objection. Thereafter, Dr. Jordan read from it a description of the body as it appeared in the admitted photographs, and he also used the photographs in testimony to indicate the path of the bullet through the decedent's body. This testimony was also without objection.
Cooper contends that the Court of Criminal Appeals has abandoned the long-standing rule that if a verbal description of the scene depicted in a photograph is admissible, the photograph depicting the same scene is admissible. See Martin v. State, 475 S.W.2d 265 (Tex.Crim.App.1972). He cites language from Burdine v. State, 719 S.W.2d 309, 316-17 (Tex.Crim.App.1986), in which that court stated that the controlling factor in determining whether the trial court erred in admitting photographs is whether the probative value of the photographs was outweighed by their prejudicial effect. In Burdine, however, the court admitted photographs of a murder victim even though they were grisly, detailed views of the body covered in blood and were cumulative of other evidence, holding that their probative value was not outweighed by their prejudicial effect. In Reimer v. State, 657 S.W.2d 894 (Tex. App.Corpus Christi 1983, no pet.), also cited by Cooper, the court stated that it was unable to hypothesize a homicide situation where the descriptions of the body or the scene are inadmissible since such descriptions normally provide essential information about the issues involved in a homicide. That court also noted that it had not found a case in which an appellate court in Texas had reversed a conviction because the prejudicial effect of the admitted photographs outweighed their probative value.
In Losada v. State, 721 S.W.2d 305 (Tex. Crim.App.1986), the court reiterated its holding in Martin v. State, 475 S.W.2d 265, that even though a photograph was gruesome it would be admissible if a verbal description of the scene was admissible. More recently, that court again reiterated its holding in Martin in the case of Jackson v. State, 745 S.W.2d 4 (Tex.Crim.App. 1988). In that case, the defendant objected to admission of photographs showing a deceased person prior to the autopsy, claiming it was gruesome, inflammatory, and prejudicial. The court held that the photographs demonstrated the condition of the body or clearly showed the fatal wound and was relevant as to its location, and they illustrated the facts which led the medical examiner to his conclusions.
In a recent case, Lucas v. State, No. 69,325 (Tex.Crim.App., March 22, 1989) (not *239 yet published), the court once again cited its decision in Martin and held that "[t]he standard today, of course, is if a verbal description of the scene depicted in the photogragh (sic) would be admissible, a photograph depicting the same content is also admissible," also citing Jackson v. State, 745 S.W.2d 4, and Losada v. State, 721 S.W.2d 305.
Cooper's argument that the Court of Criminal Appeals has moved away from its rule set forth in Martin is belied by that court's holdings in Lucas, Jackson, and Losada affirming the rule in Martin.
In the present case, Dr. Jordan testified without objection from Cooper as to the condition of the body and described its appearance as shown by the photographs. We conclude that under the rule laid down by the Court of Criminal Appeals the two photographs in question were competent, material, and relevant to issues raised at trial and that the trial court did not abuse its discretion in admitting them.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2373507/ | 783 S.W.2d 1 (1989)
Phuong Van NGUYEN, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-88-00960-CR.
Court of Appeals of Texas, Dallas.
September 14, 1989.
Noel Portnoy, Dallas, for appellant.
Teresa Tolle, Dallas, for appellee.
Before HOWELL, BAKER and OVARD, JJ.
OPINION
HOWELL, Justice.
Phuong Van Nguyen appeals a jury conviction for aggravated robbery in which the court assessed punishment at forty years' confinement. In his sole point of error, appellant maintains that the evidence is insufficient to support his conviction. We disagree and affirm.
In the present case, complainant Stephen Smith testified that at 4 a.m. July 11, 1986, he was awakened to find four masked men in his bedroom, one of whom was pointing a gun two feet from his face. The gunman, who was wearing a bandanna, said to complainant, "You move, you die." Complainant was then forced to lie on the floor where his hands and feet were tied with telephone cord and his head covered with a towel. Although the men spoke English, complainant said that they had an oriental accent.
Immediately thereafter, complainant's Vietnamese wife, Hoa Smith, was brought into the bedroom. She was made to lie face down on the floor, tied up, and her head covered. He also sensed from the sounds he heard that his wife's sister, Huong Phan, had also been brought into the bedroom. He tried to tell the men where their valuables were located, but was struck twice in the head with a hard object, which he assumed was the gun.
Soon thereafter, complainant's wife and her sister were taken to another bedroom. He heard the sounds of drawers opening and closing. He testified that the men took five or six rings, a number of bracelets, some earrings, a cassette recorder, a revolver, and $500 in cash. Complainant estimated the value of the stolen property at $20,000.
Complainant and his wife both testified that the men had used a gun or a knife and had threatened their lives. Both said that they feared the men would injure or kill them. The wife's sister, who spoke little English, did not testify. After the intruders left, complainant freed himself and summoned the police.
Officer Eugene Fuller, a board certified fingerprint expert, testified that he found several identifiable prints at the residence. He lifted a fingerprint from the front point-of-entry window, a palm print from the glass sliding door at the back of the house, and various fingerprints and palm prints from other windows in the back of the house where the perpetrators had apparently attempted to enter. Fuller said he compared the latent prints taken from complainant's residence to appellant's fingerprints and palm prints, which were also taken by Fuller. He found ten points of *2 comparison on the fingers and twenty-five points of comparison on the palms. Based on this, Fuller concluded that the latent fingerprints from the residence matched the known prints of appellant. In fact, Fuller said, "Having investigated probably over 8,000 burglaries, this wasthere was an awful lot of latent prints.... I made numerous lifts and saw that they were the same prints and that this was the largest number of prints I have ever investigated on a burglary that matched one subject."
Appellant asserts in his sole point of error that the fingerprint evidence alone is insufficient to support his conviction. In reviewing the sufficiency of the evidence, our inquiry is limited to determining whether, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App.1988). The same standard applies in both direct and circumstantial evidence cases. Livingston v. State, 739 S.W.2d 311, 329 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988). The jury's task is to determine the credibility and weight to be given to the witnesses' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984); Foster v. State, 687 S.W.2d 65, 66 (Tex.App.Dallas 1985, pet. ref'd).
A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except the defendant's guilt; proof amounting to only a strong suspicion or mere probability is insufficient. Guiton v. State, 742 S.W.2d 5, 10 (Tex.Crim.App.1987). Yet every fact need not point directly and independently to the defendant's guilt. It is enough if the verdict of guilty is warranted by the combined and cumulative force of all incriminating circumstances. Livingston, 739 S.W.2d at 330; Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App.1987).
Specifically, in burglary cases hinging on proof of identification by fingerprints, a key factor we must consider is the extent to which the fingerprinted object was accessible to the defendant. Phelps v. State, 594 S.W.2d 434, 436 (Tex.Crim.App. [Panel Op.] 1980). Where the evidence indicates that the fingerprint may have been left at a time other than the burglary, then the fingerprint evidence is insufficient to exclude every other reasonable hypothesis than the defendant's guilt. See, e.g., Dues v. State, 456 S.W.2d 116, 117-18 (Tex.Crim.App. 1970) (defendant previously employed at burglarized restaurant); Caudillo v. State, 167 Tex. Crim. 147, 318 S.W.2d 891, 892 (App.1958) (defendant had painted house and had access to house); Young v. State, 731 S.W.2d 172, 176 (Tex.App.Dallas 1987, no pet.) (defendant had done yard work and had access to house). However, the mere possibility that a defendant's fingerprints may have been left at a time other than the burglary does not necessarily render the evidence insufficient. See, e.g., Phelps, 594 S.W.2d at 436; Wheat v. State, 666 S.W.2d 594, 596 (Tex.App. Houston [1st Dist.] 1984, pet. ref'd); Walker v. State, 652 S.W.2d 438, 440 (Tex.App. Tyler 1983, pet. ref'd). Thus, each case must be reviewed on its own facts.
In Phelps, the Texas Court of Criminal Appeals specifically recognized that no evidence showed that appellant had been on the premises prior to the offense or that the premises had previously been burglarized. Phelps, 594 S.W.2d at 436. These circumstances, said the court, negated any reasonable probability that the defendant had left the fingerprints prior to the night of the offense. Id. Conversely, the cases reversed because of insufficient evidence contained some proof of prior contact or prior relationship between a defendant and a victim, which raised a reasonable hypothesis other than defendant's guilt. See Dues, 456 S.W.2d at 117; Caudillo, 318 S.W.2d at 892; Young, 731 S.W.2d at 174.
In the present case, both complainant and his wife testified that they had never met, or even seen, appellant or the other perpetrators prior to the night of the burglary, nor had they seen appellant prior to *3 trial. Admittedly, the victims were not able to make eyewitness identifications of appellant because he was wearing a mask. Based on small build, dark hair, and oriental accent, however, the victims concluded that the robbers were Asian; appellant is an ethnic Asian.
We find no evidence that complainant's home was ever burglarized previously. The record reflects no showing that appellant ever had any prior access to complainant's residence. We acknowledge that the front point-of-entry window was somewhat accessible to the public, but the evidence suggests no reason that appellant might have ever entered complainant's front yard and placed his hands on complainant's window. In addition, his fingerprints were also found on the glass sliding door and windows on the back of the house, areas even less accessible to the public. Thus, with no prior relationship between complainant and appellant, and no proof of prior access, we conclude that the circumstantial fingerprint evidence excludes every reasonable hypothesis except the appellant's guilt. The fact that all fingerprints identified as those of appellant were on the outside of the house is not controlling. The fact that appellant had never been seen in complainant's yard plus the fact that appellant had no reason to be in complainant's yard on any other occasion is sufficient. Under these circumstances, a rational fact finder could have found all of the essential elements of the crime beyond a reasonable doubt. Therefore, the evidence is sufficient to support the conviction. We overrule appellant's point of error and affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2374083/ | 470 S.W.2d 608 (1971)
Gary William DAILEY, Petitioner,
v.
STATE of Tennessee, Respondent.
Supreme Court of Tennessee.
September 7, 1971.
Edward C. Freeman, Knoxville, for petitioner.
David M. Pack, Atty. Gen., Lance D. Evans, Asst. Atty. Gen., Nashville, Heiskell H. Winstead, Dist. Atty. Gen., Rogersville, for respondent.
OPINION
DYER, Chief Justice.
This case presents the issue of whether Chapter 475, Section 1, Public Acts of 1970, amending T.C.A. § 27-111, operates retrospectively. This statute which became effective February 20, 1970, reads as follows:
Notwithstanding the foregoing time limitations, in criminal cases the Court of Criminal Appeals or the Supreme Court, upon application of the defendant or the state and for good cause shown, shall be empowered at any time to order the filing of the bill of exceptions or any portion thereof in the appropriate appellate court, so as to give the appellate court jurisdiction to consider the same. Upon the receipt of such an order from the appellate court, the trial judge shall see to it that the bill of exceptions or the relevant portion thereof is signed, filed in the trial court and promptly forwarded to the appropriate appellate court for filing therein.
Petitioner, while represented by retained counsel, was convicted of malicious shooting. The motion for a new trial was overruled on April 22, 1969, and ninety days allowed to prepare and file the bill of exceptions. On July 14, 1969, after a hearing, the trial court found petitioner to be indigent and in accord with such finding appointed counsel to represent petitioner on appeal and directed the bill of exceptions to be prepared at the expense of the State. The bill of exceptions was prepared and promptly authenticated and filed on July 22, 1969, one day past the ninety days allowed for such filing. The Court of Criminal Appeals held the bill of exceptions having been filed late could not be considered, and examining only the technical record affirmed the judgment.
On the issue of a statute operating retrospectively, this Court in Collins v. East Tenn., Va. & Ga. Railroad Co., 56 Tenn. 841 (1872), said:
It is a general rule, that a Statute is to operate prospectively, unless upon its face it imports a retrospective operation; but it is not every retrospective law that is objectionable in a Constitutional sense. *609 It is said that a vested right of action is property, just as tangible things are, and is protected from any arbitrary interference by the Legislature; but this doctrine is referable to such rights of action as spring from contracts or from the Common Law. * * * But the right to a particular remedy, says the same authority, is not a vested right. * * * The State has complete control over the remedies of its citizens in the Courts. It may give a new and additional remedy for a right already in existence or may abolish old and substitute new remedies. * * *. It may modify an existing remedy or remove an impediment in the way of judicial proceedings. Thus it is said by this Court, that retrospective laws may be made when they do not impair the obligation of contracts, or divest or impair vested rights: such as, laws providing new and additional remedies for a just right already in being, laws modifying or changing remedies, and all other strictly remedial laws; and there are many other laws that are retrospective according to the letter, yet not prohibited by the Bill of Rights. Wynne v. Wynne, 2 Swan, 405, 410. The doctrine has no reference to laws which merely add cumulative remedies to a right already in existence. (Citing cases). 56 Tenn. at 847-848.
In Dowlen v. Fitch, 196 Tenn. 206, 264 S.W.2d 824, 266 S.W.2d 357 (1954), the Court on this issue cited with approval the language from 50 Am.Jur., § 482, as follows:
"* * * remedial statutes, or statutes relating to remedies or modes of procedures, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. To the contrary statutes or amendments pertaining to procedure are generally held to operate retrospectively, where the statute or amendment does not contain language clearly showing a contrary intention. Indeed, in the absence of any savings clause, a new law changing a rule of practice is generally regarded as applicable to all cases then pending. A fortiori, a statute or amendment which furnishes a new remedy, but does not impair or affect any contractual obligations or disturb any vested rights, is applicable to proceedings begun after its passage, though relating to acts done previously thereto. Sometimes, the rule is stated in the form that, when a new statute deals with procedure only, prima facie, it applies to all actions those which have accrued or are pending and future actions." 196 Tenn. at 211-212, 264 S.W.2d at 826.
In Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408 (1955), this Court held a statute remedial in nature applied to an action pending at the time the statute was enacted.
Under T.C.A. § 27-111, prior to this 1970 amendment, this Court had consistently held a bill of exceptions not filed within the time limitations set out in the statute was, in effect, a nullity and could not be considered on appeal. This 1970 amendment, applicable only to criminal cases, simply empowers the appellate courts to order the filing of a bill of exceptions without regard to time limitations. As stated in Collins v. East Tenn., Va. & Ga. Railroad Co., supra, the effect of such amendment is to "remove an impediment in the way of judicial proceedings." In the case at bar an impediment is the right of full appellate review. The statute in no way creates any new rights nor does it take away any vested rights.
The factual situation existing prior to and at the time of the enactment of this 1970 amendment is indicative of the legislative intent that this amending statute operate as remedial legislation.
The United States Supreme Court, in opinions released prior to this 1970 amendment *610 to T.C.A. § 27-111, held that any time a defendant was denied full appellate review due to "state action" such was error requiring a new trial. The failure to timely file bills of exceptions in cases involving indigent defendants, denying such defendants a full appellate review, was deemed to be the result of "state action." This generally resulted in the indigent defendant so denied his full appellate review filing a post-conviction proceeding to have the judgment against him declared void and being successful the State was required to again put him to trial. This resulted in three separate proceedings when, in most cases, one should have been sufficient, which not only put the State to extra expense, but further clogged the already clogged appellate and trial court dockets. These were substantially the facts when the Legislature enacted this 1970 amendment, and it is obvious such was intended to remedy this situation.
A remedial statute should be liberally construed in furtherance of its purpose. Bryant v. Mulder, 163 Tenn. 600, 45 S.W.2d 48 (1932).
We hold this 1970 amendment to T.C.A. § 27-111 is remedial legislation operating retrospectively. The statute empowers the appellate courts, exercising their discretion, to order the filing of a late bill of exceptions for good cause shown on motion of the defendant or the State, and in the interest of justice by the court on its own motion.
In the case at bar we order the bill of exceptions filed to give the appellate court jurisdiction. The case was not considered by the Court of Criminal Appeals on its merits and for this purpose the cause is remanded to the Court of Criminal Appeals.
CRESON and McCANLESS, JJ., and McAMIS and JENKINS, Special Justices, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2374087/ | 186 F. Supp. 19 (1960)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
C. H. ABRAHAM & CO., Inc., and Carl Henry Abraham, Defendants.
United States District Court S. D. New York.
July 20, 1960.
*20 Paul Windels, Jr., John J. Devaney, Jr., Bernard M. Krakower, New York City, for plaintiff.
John Cye Cheasty, New York City, for defendants.
RYAN, District Judge.
This is a motion for a preliminary injunction to enjoin the defendants from further violating Section 15(c) (1) and (3) of the Securities Exchange Act of 1934, 15 U.S.C.A. 78o(c) (1) and (3), and Rules 17 C.F.R. 240.15c1-2 and 240.15c3-1 promulgated thereunder. The Commission alleges continuing violations of the Act between November 30, 1959 to the present. Jurisdiction is vested in this Court by Section 21(e) of the Act, 15 U.S.C.A. § 78u(e).
Section 15(c) (1) provides that the use of the mails or any instrument of interstate commerce to effect a transaction or induce a purchase or sale by means of a manipulative, deceptive or other fraudulent device is a violation of the Act. Rule 240.15c1-2 further defines those actions which are considered manipulative, deceptive or a fraudulent device.
Section 15(c)(3), and Rule 240.15c3-1 promulgated thereunder, provide that the aggregate indebtedness of a broker or dealer may not exceed 2000 per centum of his net capital and for purposes of determining such ratio, the rule defines net capital and aggregate indebtedness. This is commonly referred to as the "twenty to one" rule.
The relevant facts are not in dispute.
On February 26, 1960, defendant C. H. Abraham & Co., Inc., pursuant to Rule 17 CFR 240.15a-5 promulgated under the 1934 Act, filed a statement of its financial condition as of November 30, 1959, with the regional office of the Securities and Exchange Commission.
An analysis of this financial statement by the Securities and Exchange Commission disclosed a net capital deficiency of $4,700 and showed that the corporate defendant was in violation of the "twenty to one" rule. The corporate defendant was notified of this deficiency and was requested to take appropriate action to bring the capital position within the ratio of the rule. The defendant Carl H. Abraham in a letter dated March 8, 1960, replied: "Please be assured that any further capital which is required can be promptly introduced."
At the request of the Commission, the corporate defendant furnished a trial balance showing its financial condition as of March 4, 1960. On that occasion the additional capital required to obtain compliance with the rule was $67,599.02. Further correspondence was exchanged and other trial balances were submitted as of March 21, 1960, at which time the capital deficit was $43,946.60 and March 31, 1960, at which time the capital deficit was $36,574.82. This suit was filed on April 11, 1960.
At the direction of the Court, the Commission attempted to ascertain the financial condition of defendant corporation on June 7, 1960, but found it impossible *21 to do so since the corporate books were not being kept. It appears the corporation is no longer transacting business.
It is contended by defendants that the computation of "net capital" was erroneous because the Commission failed to include certain stock owned by the corporation, having a stated market value. That is the crux of the controversy.
No value was ascribed, for purposes of computing the defendants' net capital, to securities of defendant corporation for which no published market quotations were contained in the National Daily Quotation sheets on the dates of the respective trial balances. These securities were deemed to be "assets which cannot be readily converted into cash" within 240.15c3-1. Defendants contest this determination and cite transfer of these securities at various prices during the period in question. If the values allotted to such securities by the corporation are accepted in toto, the firm's net capital position would have been satisfactory.
Defendants do not dispute the power of the Commission to make such a determination or the test which the Commission sets up (Cf. Securities and Exchange Commission v. Peerless-New York, Inc., D.C., 157 F. Supp. 328, 330) but claim that transactions occurred during the period in question which would, even under the Commission's test, ascribe to the stock in defendants' possession a value which has been withheld.
The Commission did find a few transactions during this period but all involved the corporate defendant, which bought blocks of stock from various brokers. These self-serving purchases are advanced by defendants as evidence of an active market in the stock. We cannot agree! The Commission's rule requires an independent quotation and we need not labor the point that purchases by an interested party do not constitute an independent market. The Commission's requirement of independence is both logical and reasonable and it would be most illogical if transactions of the type described above were used by the Commission. Defendants also allege a sale during this period. The records and affidavits of the Commission allege neither a sale nor an offer to sell by defendants. Under the rules set up by the Commission, which we find reasonable and calculated to carry out the intent of Congress, there were no independent bids and offers involving the stock in question after January 6, 1960. Defendants have offered no credible evidence to refute this finding and we adopt it.
The Commission also alleges violation of Section 15(c) (1) of the Act and the rule promulgated thereunder in that the corporate and individual defendants used manipulative, deceptive and fraudulent devices in interstate commerce to induce purchases and sales. The corporate defendant with the knowledge and active assent of the individual defendant operated while the liabilities of the company exceeded the current assets and the firm was insolvent, without disclosing that fact to those concerned. (This has consistently been held by the Commission to constitute a violation of Section 15(c) (1). Batkin & Co., Securities Exchange Act release No. 5822 (1958); Joseph Wilensky & Co., Securities Exchange Act release No. 6032 (1959); and releases cited therein.) Defendants also purchased securities from customers giving checks signed by the individual defendant which could not be honored because of insufficient funds. The sellers of the securities have as yet not been paid. The Section 15(c) (1) charge is not alluded to or even mentioned in defendants' papers. We feel that a violation of Section 15(c) (1) has been established.
The violations of the Act have been continuing ones. Defendants were repeatedly warned by the Commission but took no action to rectify the situation. There is adequate and sufficient ground to find that without injunctive relief these acts may continue or if discontinued may be resumed and we, therefore, grant the temporary injunction as to both defendants.
Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630365/ | 191 P.3d 754 (2008)
221 Or. App. 567
STATE of Oregon, Plaintiff-Respondent,
v.
Terri Lynn McFARLAND, Defendant-Appellant.
032017MI; A126562.
Court of Appeals of Oregon.
Argued and Submitted July 20, 2007.
Decided August 13, 2008.
*755 Michael A. Breiling, Portland, argued the cause and filed the brief for appellant.
Joanna Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.
WOLLHEIM, J.
Defendant appeals her conviction for driving under the influence of intoxicants. ORS 813.010(4). Defendant argues that the trial court erred in permitting a drug recognition expert (DRE) trainee who was not *756 certified as a DRE officer to testify about the administration and results of a DRE protocol that he administered. We review for errors of law, Jennings v. Baxter Healthcare Corp., 331 Or. 285, 299, 14 P.3d 596 (2000), and we hold that a DRE trainee is not qualified to provide expert testimony regarding his assessment of the DRE protocol. Accordingly, we reverse and remand.
The relevant facts are not in dispute. Around noon on the day in question, defendant was driving her car when she struck a parked car. Medford Police Officer Jackson was the first officer on the scene. Upon Jackson's arrival, he watched defendant get out of her car. Jackson testified that "she seemed disoriented, kind of dazed and confused and was having trouble walking steadily." Shortly thereafter, Officer Kirkpatrick approached defendant. Kirkpatrick observed that
"[defendant's] pupils were slightly constricted. She had a slow and slurred speech. She was having extreme trouble maintaining her balance and was leaning on the car to keep her balance. Her speech was, like I said, slow and confused. I did not note an odor of alcoholic beverage.
"And at that time, I felt that she was under the influence of some sort ofsome sort of substance just based on the impairment I was seeing."
Defendant explained to Kirkpatrick that she was ill, had back trouble, and had taken medication. Based on his observations, Kirkpatrick suspected defendant was under the influence of intoxicants and began a DUII investigation. Defendant consented to take a horizontal gaze nystagmus (HGN) testone type of field sobriety test.[1] Based on defendant's appearance and behavior, as well as her performance on the field sobriety test, Kirkpatrick placed defendant under arrest for DUII. At the police station, defendant's Intoxilizer test resulted in a reading of.00 percent blood alcohol content, indicating that she had not consumed alcohol. Kirkpatrick requested a DRE evaluation to gain more information about defendant's apparent impairment. Officer Furst, a certified DRE officer and Kirkpatrick's training officer, was the supervisor on duty. Furst asked Officer Lane to conduct a DRE evaluation on defendant. At that time, Lane had completed the DRE training, however, he had not taken the final written exam and was thus only a DRE trainee and not a certified DRE officer.
In performing the DRE evaluation, Lane testified that he followed the 12 steps on the DRE protocol form.[2] Lane interviewed *757 Kirkpatrick, the arresting officer, and confirmed that defendant's Intoxilizer test indicated that she had not consumed alcohol. Lane asked defendant if she had any medical conditions and defendant responded that she had taken two Vicodin pills and two "Soma" pills.[3] Next, Lane administered the physical tests required by the DRE protocol, and he also checked defendant's clinical indicators at the required intervals.
At the conclusion of the DRE protocol, Lane determined that defendant was impaired and that she was under the combined influence of the prescription medications that she had admitted taking. At that point, pursuant to the DRE protocol, defendant provided a urine sample that Lane submitted to the Oregon State Police crime lab for testing. Defendant's urine analysis came back positive for Hydrocodone (i.e. Vicodin), Methadone a narcotic analgesic, and Carisoprodol (i.e. Soma); all of which are controlled substances.[4] Additionally, at the conclusion of defendant's DRE protocol, Lane telephoned his DRE instructor, Sergeant Selby. Lane described to Selby the procedures that he followed. Lane testified that Selby agreed with his assessment that defendant was under the combined influence of the prescription medications that she had admitted taking. Lane also testified that Selby did not personally observe Lane administer defendant's DRE protocol and that Selby's agreement with Lane's assessment was based on information that Lane provided to Selby during their telephone conversation.
Prior to trial, defendant moved to exclude the DRE protocol results on the ground that, at the time Lane administered defendant's DRE protocol, he was not a certified DRE officer and was thus not qualified to testify regarding his assessment. The trial court denied defendant's motion, and the case proceeded to trial.
At trial, defendant renewed her objection to Lane's testimony. The trial court responded to defendant's objection and questioned Lane about his training outside the presence of the jury. Lane informed the court that at the time he conducted defendant's DRE evaluation: (1) he was a trainee in DRE protocol; (2) he had completed the classroom portion of the training; (3) he had conducted more than the minimum number of supervised evaluations required for certification; however, (4) he had neither taken and passed the final written test nor completed the necessary paperwork for certification; and (5) he had conferred with Selby, his DRE training officer, at the end of defendant's DRE protocol. The trial court overruled defendant's objection and permitted Lane to testify as an expert about his assessment of defendant's DRE protocol results.
After the trial reconvened, Furst provided a detailed explanation of DRE protocol in general. Furst also testified that he observed Lane administer defendant's DRE evaluation in its entirety. However, Furst did not testify whether he agreed with *758 Lane's assessment of defendant's DRE protocol.
The only other testimony regarding defendant's DRE evaluation was offered by Lane, who opined that, based on his observations and defendant's performance on the DRE protocol, defendant "was unsafe to operate a motor vehicle." Selby, Lane's DRE training officer, did not testify.
Defendant testified regarding her behavior and performance on the field sobriety test and portions of the DRE protocol. She testified that prior to the accident she had taken prescription medication for back pain. Additionally, she explained that she typically relies on a walker to help her ambulate and that, because she did not have her walker with her on the day of the accident, she was less steady in her movements. Finally, she testified that the reason she struck the parked car was that she had been adjusting her car radio. The jury found defendant guilty of driving under the influence of intoxicants.
On appeal, defendant assigns error to the trial court's admission of the scientific DRE evidence offered by Lane. Defendant argues that, pursuant to State v. Sampson, 167 Or. App. 489, 6 P.3d 543, rev. den., 331 Or. 361, 19 P.3d 354 (2000), (1) DRE protocol results are scientific evidence only when all of the protocol's requirements are satisfied; (2) that one of the protocol's requirements is that the administering officer is certified as a DRE officer; (3) that because Lane had not taken and passed the required written examination he was not a certified "DRE officer;" and (4) as a result, the trial court erred in admitting Lane's testimony as an expert about defendant's DRE evaluation results. We agree with defendant.
To begin, it is helpful to discuss the admission of scientific evidence generally and DRE evidence in particular. To aid our discussion we cite extensively from Sampson, a case in which this court first considered whether DRE protocol evidence is admissible in a DUII trial and under what circumstances. 167 Or.App. at 493, 6 P.3d 543. In Sampson, we stated:
"To qualify as a DRE officer, an officer must have experience in traffic enforcement. The first part of DRE training is a 16-hour preschool that teaches the officer to recognize the effects of drugs on the eyes, take vital signs, and administer FSTs. That is followed by a 56-hour training course, covering the 12 steps of the protocol, the eye exams used in steps 3 and 7, taking vital signs, recognizing the symptoms of various drugs, performing parts of the protocol on volunteer drinkers, interpreting the DRE form, instruction on recognizing multiple drug use, and role-playing. Candidates are tested on all material. To obtain certification, the officer must conduct 12 DRE evaluations (involving at least three drug categories) and obtain nine toxicology screens; there must be a 75 percent corroboration rate between the toxicology result and the DRE candidate's opinion. The DRE candidate's opinion is considered correct if it identifies one drug in the subject's system correctly and not more than one drug incorrectly. The candidate must also pass an exam that tests the ability to recognize multiple drug use. The IACP [International Association of Chiefs of Police] must give final approval for certification, which is valid for two years and requires ongoing training."
Id. at 495, 6 P.3d 543 (emphases added).
Also, in Sampson, we considered whether DRE testimony was scientific evidence in light of the Supreme Court's decisions, State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), and State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). Sampson, 167 Or.App. at 495-511, 6 P.3d 543. We answered that question affirmatively and observed that:
"In determining whether evidence is scientific, we also consider whether its scientific assertions have the potential to exert a significantly greater influence on the factfinder than nonscientific evidence. * * * DRE testimony, with its highly specialized certification procedure, battery of medicalized tests, and complicated end-stage analysis, does carry that potential * * *. Although the protocol is a mosaic of scientific and observational techniques, their blending means that a juror's perception of the validity of each component will *759 likely be enhanced by the scientific imprimatur of the whole. We conclude that, to the extent a DRE protocol is convincing on the issue of whether a defendant was under the influence of a controlled substance, that persuasive force emanates predominantly from the substance and the aura of the scientific principles on which its methodology is based. Consequently, we hold that DRE testimony is scientific evidence."
Id. at 496-97, 6 P.3d 543 (citations omitted; some emphases added).
In Sampson we also considered DRE evidence in light of the seven factors discussed in Brown and O'Key regarding the admission of scientific evidence.[5] Two factors in particular have a heightened significance to the matter at hand: First, "[t]he expert's qualifications and stature;" and second, "[t]he existence of operational standards controlling the technique and the potential rate of error[.]"
As to the expert's qualifications and stature, we stated that "[t]he reliability of the [DRE] protocol's results depends on the ability of the officer who administers it." We then concluded that the DRE certification suffices to qualify a DRE officer to testify about the administration and results of the protocol. Sampson, 167 Or.App. at 503, 6 P.3d 543.
As to the existence of operational standards, we stated:
"DRE programs are certified and regulated by the IACP [International Association of Chiefs of Police]. The NHTSA [National Highway Traffic Safety Administration] sets standards for the HGN test that the O'Key court held were sufficient for admissibility * * *. DRE officers must submit a record of all their evaluations to the IACP every two years. If the DRE officer consistently performs poorly, he or she can be decertified * * *. Based on this oversight of the officer's actual performance and O'Key's ratification of the NHTSA standards for the HGN portion of the test, we conclude that the DRE standards are sufficiently strict to ensure the protocol's reliability."
Id. at 505, 6 P.3d 543.
Our decision in State v. Aman, 194 Or.App. 463, 95 P.3d 244 (2004), rev. dismissed as improvidently allowed, 339 Or. 281, 120 P.3d 1224 (2005) also informs our discussion. In Aman, the question before this court was "whether the results of an incompletely administered 12-step Drug Recognition Expert (DRE) protocol are admissible as scientific evidence to prove that a defendant was under the influence of a controlled substance." 194 Or.App. at 465, 95 P.3d 244. Under the circumstances of that case, the final step in the protocol, the urinalysis, had not been completed. Id. at 468-69, 95 P.3d 244. The state argued that, because the officer administering the DRE protocol had a very high accuracy rate, the corroboration provided by the urinalysis was effectively substituted. We rejected that argument and stated in Sampson that we approved the DRE 12-step protocol because "its complete administration by a competent examiner" met the qualifications in O'Key to be admitted as scientific evidence. Id. at 472, 95 P.3d 244. We concluded that "an incompletely administered DRE protocol is not, itself, admissible as scientific evidence" without an evidentiary showing that the methodology employed in an 11-step DRE protocol met the O'Key requirements. Id. at 473, 95 P.3d 244.
With that general understanding of scientific evidence, and DRE evidence in particular, we turn to the parties' contentions in this case. Defendant argues that under Sampson "the DRE protocol is scientific evidence; therefore, the person offering it must meet the requirements of OEC 702 to be admitted."[6]*760 In the case of DRE evidence, defendant argues, all 12 steps of the protocol must be performed by a qualified person to be admitted as scientific evidence without having to prove its admissibility under the Brown/O'Key test. Defendant reasons that because Lane was not qualifiedthat is, not certifiedthe state was required to lay a foundation for the admissibility of the DRE evidence if the state wanted to admit the DRE protocol as scientific evidence.
The state responds that "the trial court was correct in concluding that, although Officer Lane technically did not have his certification at the time he performed the DRE [protocol], he was nonetheless qualified to testify under OEC 702." The state posits that the "actual issue presented by this case is whether the trial court correctly ruled that the expert, i.e., the DRE officer, was qualified to testify and give his opinion on the DRE."
The state's argument is unavailing because its theory of the case rests on an improper amalgam of the facts and the applicable law. The state asserts that Lane was qualified to testify based on his experience and training, notwithstanding his lack of certification. The state characterizes Lane's incomplete credentials, specifically his lack of certification and the pending status of his final examination, as merely a technical matter. We disagree. Certification as a DRE officer is essential to qualify an officer to testify, as an expert, about scientific DRE evidence: "The reliability of the [DRE] protocol's results depends on the ability of the officer who administers it. * * * We conclude that DRE certification suffices to qualify a DRE officer to testify about the administration and results of the protocol." Sampson, 167 Or.App. at 503-04, 6 P.3d 543 (emphases added).
In this case, Lane was not a certified DRE officer. Thus, Lane was not qualified to testify, as an expert, regarding the administration of defendant's DRE protocol or his interpretation of the results. Pursuant to the 12 DRE protocol steps, certification as a DRE officer is a prerequisite to qualify a police officer to give expert testimony about the scientific evidence of DRE protocol. Sampson, 167 Or.App. at 493-95, 6 P.3d 543. Without certification, an officer is not qualified to testify as an expert, and without a qualified expert to testify regarding the proper administration and assessment of a defendant's DRE protocol, DRE evidence cannot be admitted as scientific evidence.
In this case, the only police officers who testified about DREs were Furst, a certified DRE officer, who described DRE protocols in general but did not validate Lane's administration of defendant's DRE protocol or Lane's assessment,[7] and Lane, who was not qualified to testify because he was not a certified DRE officer when he administered defendant's protocol.
As we explained in Aman, "[W]e approved the 12-step DRE protocol as scientific evidence because its complete administration by a competent examiner qualified for admission as scientific evidence under O'Key." 194 Or.App. at 472, 95 P.3d 244 (emphasis added). Again, here, there is uncontroverted evidence that Lane was not certified as a DRE officer at the time he administered defendant's DRE protocol. Accordingly, Lane was not qualified to testify about the administration and assessment of defendant's DRE protocol. Thus, on this record the trial court erred in allowing Lane to testify about his administration and assessment of defendant's DRE protocol.
Our analysis does not end there, however. If we conclude that the trial court erred in admitting the evidence, as we do here, we *761 will not reverse the conviction if "there is little likelihood that the error affected the verdict." State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003).
Here, the state presented other evidence of defendant's behavior and condition indicating defendant's impairment when she struck the parked car. That evidence could support the inference that she drove under the influence of controlled substances. However, defendant testified at the trial and explained that her poor performance on the DRE protocol's physical tests were due, in part, to her back problems and difficulty ambulating without her walker.
After reviewing the record, we understand that much of the state's case focused on the evidence of DREs generally, as explained by Furst, and the specific evidence of defendant's DRE protocol assessment, as provided by Lane. As we explained in Aman, "[t]he potential for scientifically based evidence to exert influence on a jury is manifest." 194 Or.App. at 474, 95 P.3d 244. When the source of erroneously admitted testimony is a witness presented to the jury as an expert on matters that are scientifically based, it weighs heavily against a determination that an error is harmless. See State v. Norby, 218 Or.App. 609, 180 P.3d 752 (2008). Given defendant's contrary testimony, the emphasis of Furst's testimony on the detailed and careful administration of DREs in general, and Lane's testimony detailing specifically each step of the protocol and his conclusions based on that protocol, we cannot say that there is little likelihood that the error in admitting the DRE protocol evidence affected the verdict.
Reversed and remanded.
NOTES
[1] It is helpful to have a general understanding of the laws and rules governing the tests for driver impairment. ORS 801.272 provides:
"`Field sobriety test' means a physical or mental test, approved by the Department of State Police by rule after consultation with the Department of Public Safety Standards and Training, that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance, an inhalant or any combination of intoxicating liquor, an inhalant and a controlled substance."
OAR XXX-XXX-XXXX instructs that:
"ORS 801.272 generally provides that the Oregon State Police approve by rule, after consultation with the Board on Public Safety Standards and Training (BPSST), physical and/or mental tests that enable a police officer or trier of fact to screen for or detect evidence of physical condition that indicates probable impairment from intoxicating liquor, a controlled substance or a combination of intoxicating liquor and controlled substance. Tests meeting the requirements of ORS 801.272 are defined as field sobriety tests and are listed and described in OAR XXX-XXX-XXXX and OAR XXX-XXX-XXXX."
OAR XXX-XXX-XXXX includes a list of approved tests for all sworn police officers and additional tests to be performed only by officers who have met certain criteria. Section three of that rule provides a list of additional tests utilized by an officer "trained and approved by the Oregon State Police as a Drug Recognition Expert (DRE)" and "upon successful completion of the 72-hours of DRE training * * *."
[2] As set forth in State v. Sampson, 167 Or.App. 489, 494-95, 6 P.3d 543, rev den, 331 Or. 361, 19 P.3d 354 (2000), the 12 DRE protocol steps described in the National Highway Traffic Safety Administration publication, "Drug Evaluation and Classification Training Student Manual" IV-3 to IV-22 (1993), are as follows:
1. A blood alcohol content (BAC) analysis is done. If the subject's BAC exceeds 0.08 percent, the DRE protocol ends.
2. The DRE officer interviews the arresting officer to elicit information about the subject's behavioral and physical symptoms.
3. The DRE officer conducts a preliminary physical examination by checking the subject's eyes for synchronization and pupil size, checking the pulse, and asking general health questions. This step determines whether the subject is impaired by a medical condition.
4. The DRE officer conducts four standard eye examinations developed to detect intoxication: horizontal gaze nystagmus (HGN), vertical gaze nystagmus (VGN), and lack of convergence (LOC).
5. The DRE officer conducts four field sobriety tests: the Romberg balance test, the walk and turn test, the one leg stand test, and the finger-to-nose test.
6. The DRE officer checks the subject's pulse, blood pressure, and body temperature.
7. The DRE officer measures the subject's pupil size under three light conditions (near total darkness, indirect light, and direct light), and inspects the nose and mouth for signs of drug ingestion.
8. The DRE officer checks the subject's muscle tone for extreme flaccidity or rigidity.
9. The DRE officer inspects for injection sites.
10. The DRE officer conducts a focused interrogation and observation of the subject's behavior.
11. Considering the results of all the foregoing procedures, the DRE officer develops a formal opinion identifying the drug that the subject took.
12. The DRE officer obtains a urine sample for toxicological testing. The test is used to corroborate the DRE officer's opinion and to provide a learning tool for the officer.
[3] Vicodin is a narcotic analgesic, and Soma is a central nervous system depressant.
[4] The lab report established that the three controlled substances were present in defendant's urine. However, the lab report is silent regarding the effect, if any, that those substances had on defendant's ability to drive.
[5] As set forth in Sampson, 167 Or.App. at 500, 6 P.3d 543, the Brown/O'Key factors for scientific evidence are:
"(1) The technique's general acceptance in the field;
"(2) The expert's qualifications and stature;
"(3) The use which has been made of the technique;
"(4) The potential rate of error;
"(5) The existence of specialized literature;
"(6) The novelty of the invention; and
"(7) The extent to which the technique relies on the subjective interpretation of the expert."
(Citations and footnotes omitted.)
[6] OEC 702 provides:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."
[7] We express no opinion in this case as to whether testimony by Furst, confirming Lane's administration and assessment of defendant's DRE protocol, would have been sufficient foundation to allow the admission of Lane's testimony. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2374415/ | 470 S.W.2d 775 (1971)
Walter L. O'NEIL et al., Appellants,
v.
Grace Irene POWELL et al., Appellees.
No. 17240.
Court of Civil Appeals of Texas, Fort Worth.
June 25, 1971.
Rehearing Denied September 24, 1971.
*776 Eastland & Fly, Inc., Hillsboro, Small, Herring, Craig & Werkenthin, and C. C. Small, Jr., Austin, for appellants.
Carl E. Mason, Waco, and Nat J. Harben, Fort Worth, for appellees.
OPINION
LANGDON, Justice.
This suit was initiated by the buyers, Walter O'Neil, Austin O'Neil, Jr. and Ted O'Neil, appellants, against the sellers, Grace Irene Powell and Patti Powell Phillips, appellees, for the specific performance of a contract for the sale of real property and alternatively for the breach of such contract.
Except for the formal parts the contract here involved reads as follows:
"This Contract of Sale, made and entered into on this the 23rd day of April, 1968, by and between Mrs. Grace Powell and Patti Powell Phillips, both of Tarrant County, Texas, as Seller, and Austin O'Neil, Jr., of Hale County, Texas, Ted O'Neil of Hill County, Texas, and Walter O'Neil of Tarrant County, Texas as Buyer. WITNESSETH:
"That for the consideration herein mentioned the Seller agrees to sell and convey *777 unto the Buyer by a good and sufficient Warranty Deed the following described land, to-wit:
"Section #2 is composed of 600 acres more or less and is known as Section No. 2 C.C.S.D. & R.G. N.R.R. Certificate No. 65 on the Brazos River, about 18 miles No. 80 W. of Hillsboro, from The State of Texas, to W. G. Powell, Assignee of J. F. Benson, by Patent No. 390, Vol. 20, Abstract No. 1132. Included in this conveyance is three-fourths (¾) of the mineral and leasing rights presently owned by Seller.
"The consideration agreed to be paid for said land, and at which it is agreed to be sold is the sum of Ninety-five dollars ($95.00) per acre.
"The 1967 and all prior taxes are to be paid by the Seller. The 1968 taxes shall be prorated. The Seller shall furnish a Title Policy or Abstract for the land to be conveyed under this agreement.
"It is called to the Seller's attention, that the Buyer, being Texas veterans, propose to use a loan that will be granted by the General Land Board, in a combined amount of $30,000 toward the purchase of the above described land. Thus, the land shall be surveyed and marked by a licensed surveyor, the cost of said survey shall be at the Seller's expense. Furthermore, at no expense to the Seller, the land must be appraised by an authorized Appraiser of the General Land Board, prior to loan approval.
"The Seller agrees to finance the balance of payment above $37,500.00 over a period of twenty (20) years at five and one-half percent (5½%) per annum. The first payment on the balance of payment shall be due one year after purchase and payments shall be made each subsequent year thereafter until full payment is satisfied. It is further understood that the land to be conveyed must appraise for as much as eighty-five dollars ($85.00) per acre, or this contract becomes null and void.
"The Buyer agrees to put in escrow with a copy of this contract in the Ridglea State Bank of Fort Worth, Texas, the sum of $1,000 as earnest money to guarantee faithful performance of this contract and should they fail or refuse to perform for any reason, except as stated in the preceeding paragraph, or a defect in title, or disapproval of the purchase by the General Land Board, then said money shall be turned over to Seller as liquidated damages for said breach. The Buyer may use said escrow money as part of his cash requirement for the purposes of closing the purchase of the land described herein. The Ridglea State Bank shall not be held liable for its reasonable interpretation of this contract, and its compliance therewith. In consideration of the earnest money, the Buyer shall have the right to sue for specific performance.
"This contract is executed in triplicate at Arlington, Texas, each having the force and effect of an original on the day first above written."
The trial court rendered judgment denying appellants' motion for summary judgment and granted appellees' motion for summary judgment directing that appellants take nothing by their suit.
The judgment of the court above described contained the following recitations:
"* * * the contract sued upon herein is deficient to the extent that it prevents its enforcement by specific performance for the reason that there is an uncertainty with respect to the provision for the payment of deferred payments in that the amount of the annual installments are not shown, nor is the method of calculating and paying the interest set forth, and it does not provide when the interest payments are to be made, and contains no provision with respect to securing the deferred payments, and the contract is further deficient in that it does not provide any time limit for closing the sale, and that the tender of performance eighteen months after the date of the contract was not within a reasonable time for performance.
"There is also a deficiency in parties to the contract and the proceeding."
*778 This appeal from such judgment, based upon three points of error, asserts that the trial court erred (1) in holding as a matter of law that the contract for the sale of realty could not be enforced by a judgment for specific performance and (2) in denying specific performance of the contract since it had been substantially performed by both parties. By the third point it is contended the court erred in holding as a matter of law that appellants had no cause of action for damages for breach of the contract for the sale of realty.
We affirm.
An examination of the terms and provisions of the contract above set out will, standing alone, constitute adequate support for the trial court's findings of uncertainty with respect to the deferred payments. The contract does not specify the amount of the annual installments or the manner by which interest is to be calculated and paid. The contract is silent as to when and where such interest payments are to be made. It contains no provision with respect to security for the deferred payments.
We find and hold that a decision in this case is controlled by Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962). See also Goode v. Westside Developers, Inc., 258 S.W.2d 844 (Waco, Tex.Civ.App., 1953, ref., n. r. e.); Williams v. Manchester Building Supply Company, 213 Ga. 99, 97 S.E.2d 129 (1957). The latter case was cited with approval in the Bryant case.
In Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944) the Texas Supreme Court said:
"It is essential to the validity of a contract that it be sufficiently certain to define the nature and extent of its obligations. If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforcible contract."
See also Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Hume v. Bogle, 204 S.W. 673 (Austin, Tex.Civ.App., 1918, no writ hist.) and Nash v. Conatser, 410 S.W.2d 512 (Dallas, Tex.Civ.App., 1966, no writ hist.) and 52 Tex.Jur.2d, "Specific Performance," § 24, pages 545-546. See also § 72, p. 612 of same text. See also cases cited under these texts. Restatement, Contracts, Sec. 370.
Under the authorities above cited we are of the opinion that the contract in question is too indefinite and uncertain to authorize a judgment of specific performance.
The court correctly found that the contract in question did not provide a time limit for closing. In 52 Tex.Jur.2d 582, § 49, it is said that in cases where the contract does not fix the time that performance is due within a reasonable time to be determined by the circumstances of the case. All parties to a contract are required to do their part in satisfying and meeting the requirements of a contract. Under the facts of this case involving loans, surveys, etc., it is our opinion that a question of fact was presented as to whether performance was attempted or commenced within a reasonable time under the circumstances of the case. In view of our holding above that the contract is not specifically enforceable under the Bryant case the fact question as to performance time becomes moot. The same is true as to the court's finding of a deficiency in parties. In a similar case for specific performance this court holding that the Veterans' Land Board was a necessary and indispensable party said in Barnes v. Bryan, 363 S.W.2d 867 (Fort Worth, Tex. Civ.App., 1962, no writ hist.):
"All parties are necessary to a proceeding in equity that may be directly or indirectly involved in order that full and complete relief may be accorded the plaintiff or to enable the defendant thereto to present his defense so as to secure the full benefit thereof in resisting the relief sought by the plaintiff. Montgomery v. Owen, Tex.Civ.App., 37 S.W.2d 1107, 32 Tex.Jur., p. 19, § 11." In view of our affirmance of the judgment of the trial court the deficiency *779 of parties becomes unimportant and is moot.
The appellants in their amended pleadings pray that warranty deeds be executed conveying the land covered by the contract to them and to the Veterans' Land Board. Further, the record reflects that the survey partitioned the land into four separate tracts. This is not explained but it would appear to call for four separate deeds. The contract in question requires only one deed. There is no requirement of a deed to the Veterans' Land Board or to the buyers individually. The appellees may not be compelled to execute deeds by specific performance of a contract which does not require such deeds.
It is also contended that Grace Irene Powell, as the independent executrix and trustee under the will of Guy E. Powell, has full power and authority to convey the land in question. This may be true, however, she signed the contract in her individual capacity and was sued herein in her individual capacity. She cannot be compelled to execute a deed in any other capacity. A deed signed by her in her individual capacity would not pass title.
"Equity will not do a vain and useless thing. Hence, specific performance will not be decreed where it appears that performance of the contract by the defendant is impossible. Accordingly, a decree will not be granted to compel a person to perform a contract to convey land that he does not own. This is true even though the want of title is due to the defendant's own act." 52 Tex.Jur.2d 610, § 71.
The trial court correctly held that as a matter of law the appellants had no cause of action for damages for breach of the contract. The pleadings with reference to damages will not support same. Further, the pleadings and supporting data as to damages were filed too late. Green v. Smart, 333 S.W.2d 880 (Dallas, Tex.Civ.App., 1960, no writ hist.); Oaxaca v. Lowman, 297 S.W.2d 729 (El Paso, Tex.Civ. App., 1956, ref., n. r. e.); Rountree v. Bridwell, 269 S.W.2d 824 (San Antonio, Tex. Civ.App., 1954, ref., n. r. e.).
A review of the terms and provisions of the contract here involved clearly show that the contract is incomplete because many of the essential terms thereof had not been resolved by the parties to it and because of the lack of essential parties to the contract. There was no meeting of the minds of such parties on material matters. The agreement left such material matters open for future adjustment and agreement.
It is settled law that such a contract is not binding upon the parties to it and therefore it cannot be enforced. Gasperson v. Madill National Bank, 455 S.W.2d 381, 387 (Fort Worth, Tex.Civ.App., 1970, ref., n. r. e.) and authorities cited.
While mindful of the concurring opinion of Justice Greenhill in Wheeler v. White, 398 S.W.2d 93, 98 (Tex.Sup., 1965) regarding damages in such cases as this we are of the opinion and hold that the contract in this case is not sufficiently definite to be either specifically enforced or to support an action for damages.
All points of error are overruled and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2375374/ | 432 S.W.2d 882 (1968)
Alice Joy WOOLEY
v.
James D. PARKER, Administrator, etc.
Melissa Joy WOOLEY by next friend
v.
James D. PARKER, Administrator, etc.
Supreme Court of Tennessee.
October 11, 1968.
Eaves & McColpin, Chattanooga, for plaintiffs in error.
James D. Robinson, Goins, Gammon, Baker & Robinson, Chattanooga, for defendant in error; Denny E. Mobbs, Chattanooga, of counsel.
OPINION
BURNETT, Chief Justice.
In the first of the above captioned actions the plaintiff, Alice Joy Wooley, the surviving widow of Frank M. Wooley, deceased, brought suit against his estate for personal injuries received by her on June 1, 1964, as a result of an automobile accident in which her husband, Frank M. Wooley, was driving his car in an alleged negligent, reckless and careless manner in that he drove his automobile over the center line of a main highway and into the path of an oncoming truck, thus killing himself and inflicting the injuries for which his widow sues.
The second of the above captioned actions is a suit by Melissa Joy Wooley through her next friend, which is brought for damages for personal injuries received by her in this same accident in which her mother sues for injuries and which it is alleged *883 was the result of the negligence of her father in driving his automobile as alleged in her mother's action wherein he was killed and in which it is alleged he injured this plaintiff.
The defendant, James D. Parker, Administrator of the estate of Frank M. Wooley, deceased, demurred to each declaration, setting forth the fact that the declaration failed to state a cause of action. This demurrer was sustained and the action dismissed and an appeal has been seasonably perfected to this Court wherein arguments have been heard and exceptionally able briefs filed on both sides. After fully considering all authorities, reading the briefs, we have reached a satisfactory, as far as we are concerned, determination thereof.
The suit of Melissa Joy Wooley, the child, is fully determined and the reasons therefor are fully given by an opinion this day released of Railway Express, Inc., et al. v. Leona Campbell b/n/f, et al, from the Circuit Court of Greene County, wherein we have adopted the opinion of the Court of Appeals in that case as our opinion. Thus it is, it would be a foolish duplication for us again to restate our reasons for affirming the action of the trial court in sustaining the demurrer in this suit, and as a result thereof we fully adopt the reasons again in the present suit which were given for such a dismissal in the Railway Express case, supra.
In addition to the distinction made in the Railway Express case, supra, to Logan v. Reaves, 209 Tenn. 631, 635, 354 S.W.2d 789, we would add that this child succeeds to such rights only against her father as she had at the time of the accident, and for her to have any right against him after he died there must be some right in existence which survives his death. No such right we now think exists. Certain statements made in Logan v. Reaves, supra, are primarily the basis for the appeal on behalf of the daughter of the deceased Wooley.
The other lawsuit, that of Alice Joy Wooley against the estate of her deceased husband, is a tort action brought by a wife against the husband's estate for personal injuries, etc., by reason of an automobile accident which it is alleged resulted from the negligence of her deceased husband. This suit is in a way new in Tennessee but in principle and from reason it is controlled by previous decisions of this Court, which hold that no cause of action arises for torts from one spouse against the other which occurred while the parties were married. In 1915, this Court had before it Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628, L.R.A. 1916B, 881, the basic question. In that case this Court said:
"It has been held in this state that neither spouse could maintain an action against the other for torts committed by one against the other during coverture. The holding was said to rest in part upon their unity by virtue of the marriage, which was said to preclude one from suing the other at law, and in part it was said to rest upon the respective rights and duties involved in the marriage relation."
In this case the Court for the first time had before it the woman's emancipation act (Chapter 26, Public Acts of 1913, codified as § 36-601, T.C.A.) and in considering that question we said:
"We must assume that the Legislature had in mind in the passage of the act the fundamental doctrine of the unity of husband and wife under the common law, and the correlative duties of husband and wife to each other, and to the well-being of the social order growing out of the marriage relation, and that, if it had been the purpose of the Legislature to alter these further than as indicated in the act, that purpose would have been clearly expressed. * * *
"We are not warranted in ascribing to the Legislature by anything appearing in this act a purpose to empower a wife to bring an action against her husband for *884 injuries to her person occurring during the coverture, thereby making public scandal of family discord, to the hurt of the reputation of husband and wife, their families and connections, unless such purpose clearly appears by the express terms of the act. It results that, in our opinion, there is no error in the judgment of the Court of Civil Appeals, and the same is therefore affirmed."
This case was reaffirmed about fifteen years later in Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058. In the Tobin case the demurrer was sustained to a declaration of an administrator of a deceased wife who had filed a negligent action against her husband before her death. We held that the action could not be maintained and cited what we thought were respectable authorities therefor, and said among other things that Tennessee was in accord with the common law rule and that the married woman's emancipation act had not abrogated this common law rule. This statement and reasoning there is likewise applicable in the present case to the effect that the Legislature of the State for obvious reasons sets the public policy of the State by their Acts, and we have held time and time again that the common law is applicable in Tennessee unless the Legislature enacts a statute otherwise, therefore in the present case the Legislature not having enacted any Act allowing one spouse to sue the other for tort or to sue the estate of the other for tort, then we as a Court should not enter this legislative field.
This Court again considered the question in Prince v. Prince, 205 Tenn. 451, 326 S.W.2d 908. In this case the wife was injured in an accident in which she was a guest passenger in a car driven by her husband and in her suit against the husband we, after reviewing the decisions following the married woman's emancipation act, supra, held that this act did not abrogate the common law rule which disallowed such a suit and we denied that the suit could be maintained. It seems to us by long legislative history it is shown that we are firmly entrenched and we have reaffirmed time and again the principle of the common law rule of disallowing suits between spouses for torts which occurred during coverture and as said above we are unable to find anywhere that the Legislature has changed such a rule. The reason why is obvious to us and is shown to a large extent to be the same reasons as given by the Court of Appeals in the case of Railway Express, Inc., supra, which we have held applies to a child suing an estate of a deceased parent.
We again reaffirmed this same principle in Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25, wherein there was a different state of facts involved but the principle is the same and it will be noticed that in applying this rule in various cases we have done so "because there is no civil right to be redressed." In other words, it goes back to the same proposition as said above in Logan v. Reaves, supra, that it should be further distinguished from a state of facts applicable to a child and the same is true and applicable to a man and woman. If the woman had no right against her husband during his lifetime for torts committed against her certainly when he died none would survive, she not having any before. Just because her husband died doesn't create a right.
Lastly, we have reiterated this identical principle under another state of facts in Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621 (1965), in one of the last opinions that Mr. Justice White prepared for this Court. This is a well reasoned opinion and the reasoning therein is applicable here. Among other things it was said:
"It is argued here that Tennessee should adopt the minority rule that the Married Woman's Act changes the common law rule and makes it possible for a wife to sue her husband for tort. This Court has always adhered to the rule that we should not construe said Act as abrogating an established common law doctrine unless the legislative intent to make such a change in the law was explicitly stated."
*885 Then Mr. Justice White ended the Hance opinion thus:
"As said in the recent case of Rush v. Great American Ins. Co., 213 Tenn. 506, 376 S.W.2d 454 (1964), the courts will not run a race of opinions with the Legislature to create a new action which was unknown at the common law."
For the reasons herein expressed we must affirm the judgment of the trial court in these two cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2375401/ | 621 S.W.2d 324 (1981)
STATE of Missouri, Respondent,
v.
Arthur G. PEOPLES, Appellant.
No. WD 31540.
Missouri Court of Appeals, Western District.
July 21, 1981.
Motion for Rehearing and/or Transfer Denied August 25, 1981.
Application to Transfer Denied October 13, 1981.
*325 William E. Shull, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Darrel Panethiere, Asst. Atty. Gen., Kansas City, for respondent.
Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 25, 1981.
SHANGLER, Judge.
The defendant Peoples was charged with murder in the second degree, was found by a jury guilty of manslaughter [§ 565.005, RSMo 1978] and was sentenced to a term of imprisonment for four years. There was evidence that Peoples acted in self-defense and that issue was submitted to the jury. The appeal contends error in that submission and also that other decisions of the court prejudiced the trial.
*326 The defendant Peoples was a forklift operator for a pallet company. He was a recent employee and there was dissatisfaction with his work performance. On the day of the event, the defendant was called to the company office to meet with Jones [the victim], his immediate supervisor, plant superintendent McCurter and company president Rozell. The defendant was told that supervisor Jones and superintendent McCurter were not satisfied with his work, and that Peoples could accept a demotion to pallet assembler or quit the work. The defendant Peoples informed president Rozell that he would return to pick up his check, and left the office. The victim Jones left the office soon after. This sequence of events, then unfolded: the victim Jones encountered the defendant Peoples still on the company premises, they exchanged words, Jones struck Peoples down to the ground with a blow of the fist, Peoples got up and the two grappled, Peoples removed a knife from a pocket and stabbed Jones, and Jones then died from the wound.
The details of the sequence, as garnered from the prosecution evidence, were that Rozell and McCurterstill in the office were drawn to the window by the shout "T" [the sobriquet for victim Theoplis Jones]. McCurter recognized the shout as the voice of defendant Peoples. There they saw Jones and Peoples, close together, in conversation but could not hear what was spoken. There was no appearance of a hostility. An employee then came to report trouble on the dock. McCurter testified that when he arrived there, Peoples was on the ground and Jones was upright, the two men about a foot-and-a-half apart. Another witness on the scene, Klug, intersticed the events from the report of trouble and arrival of McCurter. As he stood nearby, he saw the defendant Peoples move towards the ramp exit from the dock followed by the victim Jones some six feet behind. The defendant turned to the victim and spoke: "Don't walk behind me, man." Then both men stopped and Jones struck the defendant to the ground with his right hand. The defendant came off the ground and began to grapple with Jones. McCurter came between them, and at that time witness Klug saw a knife in the hand of defendant Peoples. McCurter then pinned Peoples to the ground, knife in hand, and Jones piled on top of them to secure Peoples to the ground. Jones was jostled off the heap, however, and went to fetch a two-by-four board. In the interim, Peoples became extricated and was last seen as he fled the premises. McCurter also saw the knife in the hand of Peoples and saw the defendant draw the weapon out of the body of the victim.
The evidence does not show when Jones was wounded. The knife stab pierced the lower heart so that he bled massively. The medical examiner explained that the victim may have been unaware of the wound during the period of excitement. The victim was taken to the hospital and collapsed en route. His thick clothes were drenched with blood. The victim died at the hospital within hours.
The defendant admitted that he stabbed Jones. He testified that after he met with president Rozell, plant superintendent McCurter and supervisor Jones that morning, he left that office with intention to get into his car and leave the premises. Jones followed and said: "get out of here and don't come back." Jones repeated the instruction. Jones was close behind and Peoples told him not to follow. Jones struck Peoples down and took a step towards Peoples with a hand in the pocket. Peoples feared that Jones had a weapon and so pulled out a pocket-knife, held it up and "somehow Jones jumped into the knife." Peoples recalled that McCurter pulled him to the ground and that Jones piled upon them both.
The court submitted self-defense by Instruction No. 7 on the model of MAI-CR2d 2.41.1. Conformably to the model, Paragraph 3 of Instruction No. 7 submitted:
In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.
*327 That paragraph of the MAI-CR2d self-defense form, however, prescribes other components for further direction to the jury as the evidence may show. Among them, are
If [name of victim] prior to the encounter made threats which were known by or communicated to the defendant, you may consider such threats as explaining the conduct or apprehensions of the defendant at the time of the encounter and for the further purpose of determining who was the aggressor.
And,
If [name of victim] prior to the encounter assaulted or directed any specific acts of violence against the defendant, you may consider them as explaining the conduct or apprehension of the defendant at the time of the encounter and for the further purpose of determining who was the aggressor. [emphasis added]
These components are for submission when the evidence supports such a direction. MAI-CR2d 2.41.1, Notes on Use 6.
The defendant Peoples requested those component instructions, formulated them in the terms of the models, and tendered them as Paragraph 3 of Instruction A but was refused. He contends that the exclusion of these components from Instruction No. 7 was error.
The prosecution contends there was no evidence, from any source, that the deceased Jones threatened or committed violence upon the defendant Peoples prior to the encounter and therefore those components of the model instruction were not submissible. That contention assumes that the encounter within the sense of the instruction can mean only acts other than that which provoked Peoples to self-defensein this case [so the argument conceives], the battery to the face.[1] Thus [the argument continues], only acts of threat and violence by the victim against the defendant prior to the blow by Jones upon Peoples was submissible under the components, a proof the evidence lacked altogether. The prosecution does not contest that there were words directed by Jones to Peoples before the blow or that Jones reached into the pocket after the blow. The prosecution merely objects, without other rationale, that a single evidence [the blow to the face] may not prove that the victim was the aggressor and at the same time prove the apprehension of danger to the person to justify the act of self-defense. That, however, is the precise effect the law and the rules of instruction ascribe to such evidence.[2]
The developed law of self-defense requires the especial attention of the jury to evidence of prior threats, reputation of the turbulent disposition of the victim, and described acts of violence by the victim upon the defendant as those incidents may bear to prove the basic elements of the defense. State v. Hemphill, 504 S.W.2d 62, 63[1] (Mo.1974); State v. Ruffin, 535 S.W.2d 135, 138[6] (Mo.App.1976). A mere direction to the jury to consider such proofs does not suffice. That is because those aspects of evidence are "the very heart of self-defense" [State v. Finn, 243 S.W.2d 67, 74[16] (Mo.1951)] they tend to explain the conduct of the defendant "at the time of the act of [defense]." State v. Forsythe, 251 S.W.2d 17, 19[4] (Mo.1952). In a word: *328 such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. State v. Laspy 298 S.W.2d 357, 361[5, 6] (Mo.1957); State v. Bundy, 44 S.W.2d 121, 123[4] (Mo.1931); MAI-CR2d 2.41.1. That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component to the basic self-defense instruction. State v. Carter, 585 S.W.2d 215, 219[6] (Mo.App.1979); State v. Laspy, 298 S.W.2d 357, 360[5, 6] (Mo.1957). Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense, and not at the time of a determined provocation by the victim. They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. State v. Hemphill, 504 S.W.2d 62, 63 (Mo.1974); State v. Bounds, 305 S.W.2d 487, 490[5] (Mo.1957); State v. Cole, 377 S.W.2d 306, 311[3] (Mo.1964).
These principles of substantive law and jury instruction were transposed, in those very terms, into MAI-CR 2.40, the immediate precursor of MAI-CR2d 2.41.1. Thus, paragraph 4 of MAI-CR 2.40 [as does paragraph 4 of MAI-CR2d 2.41.1] submits:
In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.
Then, that paragraph of MAI-CR 2.40 prescribes four model components for special direction to the jury as the evidence may show, among them, the components to submit prior threats and described acts of violence by the victim against the defendant. The four components were transposed from paragraph 4 of MAI-CR 2.40 into paragraph 4 of MAI-CR2d 2.41.1. The two components of our concernthose which submit prior threats and acts of violenceare rescripted exactly from MAI-CR 2.40 into MAI-CR2d 2.41.1 except that prior to the killing [as was in MAI-CR 2.40] becomes prior to the encounter [in MAI-CR2d 2.41.1].[3] The reason for that altered expression becomes evident at once: MAI-CR 2.40 was formulated for self-defense in homicides. [See MAI-CR 2.40, Notes on Use 1]. MAI-CR2d 2.41.1 was formulated for self-defense by nondeadly force as well as when the defense results in homicide. [See, MAI-CR2d 2.41.1, Notes on Use 4]. Thus, the encounter describes the act of defense whether by deadly or nondeadly force and not the act of aggression or provocation by the victim. The term encounter in the threats and violence components of paragraph 4 of MAI-CR2d 2.41.1, therefore, alters no dimension of these substantive submissions under paragraph 4 of MAI-CR 2.40. The evidence relevant to those component submissions remains, as before, threats and acts of violence by the victim upon the defendant antecedent to the act of defense.
The substantive law formulated first in MAI-CR 2.40 and now in MAI-CR2d 2.41.1 constitute evidence of self-defense an element of the law of the case. State v. Boyd, 498 S.W.2d 532, 534[2, 3] (Mo.1973). As such, where the evidence shows self-defense, the issue must be submitted to the jury by instruction whether requested or not. State v. Carter, 585 S.W.2d 215, 219[6] (Mo.App.1979); Rule 28.02(a). Where the evidence of self-defense shows antecedent threat or violence by the victim upon the defendant, the court must instruct the jury how to consider that evidence as those acts may bear on self-defensewhether requested or not. State v. Finn, 243 S.W.2d 67, 74[16] (Mo.1951); State v. Cole, 377 S.W.2d 306, 311[3] (Mo.1964); MAI-CR 2.04 [Notes on Use 3]; MAI-CR2d 2.41.1 [Notes on Use 6]; Committee Comments on MAI-CR Instructions, Self-Defense pp. 40, 45-6, 72-3. There was evidence of threat [the gesture *329 by Jones into the pocket while Peoples was still on the ground] and of an act of violence by the victim upon the face of the defendant prior to the act of self-defense by Peoples. These incidents of evidence were requested for submission by tendered Instruction A. They were elements of the law of the case and the neglect to submit the evidence was error, even absent request. Rule 28.02(a); MAI-CR2d 2.41.1, paragraph 4, Components 1 and 4. Moreover, the error was prejudicial, as the precedents judicially determine. State v. Finn, 243 S.W.2d 67, 73[16] (Mo.1951); State v. Bounds, 305 S.W.2d 487, 491[6] (Mo.1957); State v. Phillips, 583 S.W.2d 526, 531[5] (Mo. banc 1979). Rule 28.02(e).
The judgment is reversed and remanded.
All concur.
NOTES
[1] The thesis of the prosecution that the blow by Jones was the proximate inducement to resort by Peoples to defense by deadly force simply does not reflect the evidence. Peoples testified that after the blow upon him and while he was still on the ground, Jones approached him hand in pocketand it was that apparent menace of a weapon which provoked Peoples to reach for his knife in defense. That inadvertent misdescription of the evidence, albeit innocent, demonstrates how artificial and improbable is a rule which requires the court to determine as a matter of law the precise act which constitutes the inducement to self-defense [the "encounter"] and then limits the special attention of the jury to only those threats and acts of violence by the victim which preceded that "encounter."
[2] The evidence of threats or acts of violence directed by the victim against the defendant submitted under the two components of Paragraph 4 of self-defense MAI-CR 2d 2.41.1 [Paragraph 3 of Instruction No. 3], by the express terms of the model instruction, bear on the jury determinations of who was the aggressor and the apprehension to justify resort to defense.
[3] MAI-CR 2.40, paragraph 4, Component I:
(If [name of victim] prior to the killing made threats, etc.)
MAI-CR 2d 2.41.1, paragraph 4, Component 1: (If [name of victim] prior to the encounter made threats, etc.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376114/ | 785 A.2d 25 (2001)
345 N.J. Super. 294
Lorraine L. HOLDSWORTH, Executrix and Administratrix Ad Prosequendum of the Estate of Joseph J. Lazarich, Deceased, Plaintiff-Appellant,
v.
Dr. Leonard GALLER, Defendant-Respondent, and
Dr. M. Troum, and A. Horstman, Defendants.
Superior Court of New Jersey, Appellate Division.
Argued October 17, 2001.
Decided November 20, 2001.
*27 Donald G. Targan, Atlantic City, argued the cause for appellant (Mr. Targan, attorney; Michael J. Pender, on the brief).
Jay J. Blumberg, Absecon, argued the cause for respondent (Blumberg & Linder, attorneys; Michael D. Lindner, Jr., Woodbury, on the brief).
Before Judges RODRIGUEZ, LEFELT and LISA.
*26 The opinion of the court was delivered by
LEFELT, J.A.D.
Joseph Lazarich had a two-centimeter cancerous tumor on the left side of his colon. Unfortunately, defendant surgeon Leonard Galler erroneously performed right-sided colon surgery to remove the tumor. Once the doctor recognized the error, he performed the required left-sided abdominal surgery three days later. Lazarich developed complications and died six weeks thereafter.
Plaintiff Lorraine Holdsworth, individually and on behalf of her father's estate, sued Dr. Galler; Dr. Richard Troum, the treating gastroenterologist; and nurse Ann Horstman. The jury found the nurse not negligent but rendered a verdict in favor of plaintiff and against Dr. Galler and Dr. Troum. Plaintiff appealed, contending that Scafidi v. Seiler, 119 N.J. 93, 108-09, 574 A.2d 398 (1990), should not have been charged by the trial judge and should not have been applied to reduce the damages. We agree and reverse and remand.
I.
These are the relevant facts and pertinent procedural history. At the first surgery on the patient's right side, Dr. Galler removed the end of Lazarich's small intestine, his entire right colon and the majority of his transverse colon. Approximately forty to forty-five percent, or over two feet, of the colon was removed by Dr. Galler. The first surgery was performed on the patient's wrong side. Consequently, three days later Lazarich had to undergo another surgery, this time on his left side, after which he was left with approximately twenty-percent of his colon. Because of swelling from the first surgery, Dr. Befeler, plaintiff's medical expert, explained that the second surgery was more difficult and time consuming. The first operation took approximately fiftytwo minutes, and the second surgery approximately an hour and forty minutes. Lazarich's wound was never completely closed after the second surgery and the nurses reported seeing a portion of his bowel through the wound. Lazarich never left the hospital and died six weeks after the second surgery.
The jury awarded plaintiff $40,000 for Lazarich's three days of pain and suffering related to the first unnecessary surgery. This portion of the verdict is not challenged on appeal. The jury also awarded plaintiff $250,000 in survival act damages, N.J.S.A. 2A:15-3, for Lazarich's pain and suffering from the second surgery until his death. The jury also awarded $35,000 wrongful death damages to Lazarich's estate for the pecuniary loss to his son and daughter. N.J.S.A. 2A:31-1 to -6. Because the jury found under Scafidi that Dr. Galler's negligence reduced by fortypercent Lazarich's chances of survival, the judge reduced by sixty-percent all of plaintiff's damages relating to the second surgery. It is this reduction, ostensibly because of Scafidi, that plaintiff claims was error.
II.
Lazarich's cancerous tumor, while not very large, had grown through the wall of *28 his large intestine and had invaded two lymph glands in that area. The tumor had to be surgically removed, and Lazarich was a candidate for chemotherapy after the surgery. According to Dr. Befeler, had Lazarich received proper treatment, Lazarich would have had a "sixty to seventy-five percent chance of surviving five years" and a "better than even chance of living ten years."
One would assume, based on this testimony, that Lazarich's tumor would qualify as a preexisting condition under Scafidi. "[W]hen defendant's negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury." Id. at 102, 574 A.2d 398. Consequently, in such cases, plaintiffs need only prove that defendants' negligence increased the risk of harm and that the increased risk was a substantial factor in producing the ultimate injury. Id. at 104, 574 A.2d 398.
However, the defendants did not argue that Lazarich's tumor was the preexisting condition under Scafidi. No one asserted that the tumor played any role in causing the surgery complications or Lazarich's death. Instead, defendants argued that possible complications associated with the colon surgery constituted a preexisting condition under Scafidi.
Defendants' Scafidi argument is based solely on the cross-examination of plaintiff's expert, Dr. Befeler. Dr. Befeler testified that the left-sided surgery to remove the cancer from Lazarich had less than ten-percent known risk of complications, including pulmonary embolism, infection, scarring, bleeding, leakage from the anastomosis (small bowel reconnected to the large bowel), ileus (a paralyzed bowel) and wound infection. Dr. Befeler explained that some complications might have occurred anyway even if there had only been one left-sided surgery. The performance of the second abdominal surgery three days after the prior abdominal surgery, according to Dr. Befeler, increased the risk of these known complications by "at least 20-40%". Defendants argued that this testimony justified the Scafidi jury instruction and the consequent verdict reduction. We disagree.
III.
A preexisting condition is "one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant." Anderson v. Picciotti, 144 N.J. 195, 211, 676 A.2d 127 (1996)(citing Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353, 1357 (1981)). In other words, it is where "the patient [seeks] treatment from a physician with the express purpose to obtain treatment which would alter or delay the outcome attributable to the condition." Golinski v. Hackensack Med. Ctr., 298 N.J.Super. 650, 655, 690 A.2d 147 (App.Div.1997).
Thus, in Scafidi situations there is a likelihood of adverse consequences based on the preexisting condition alone, and the physician's negligence hastens or otherwise fails to stem the patient's downward course caused by the preexisting condition. Scafidi thus deals with cases in which a "defendant's negligence combines with a preexistent condition to cause harmas distinguished from cases in which the deviation alone is the cause of the harm." Scafidi, supra, 119 N.J. at 108-09, 574 A.2d 398.
Here, plaintiff died. It cannot logically be said that the surgery risks *29 combined with the surgeon's negligence to cause the ultimate harm. No doctor testified that any preexisting condition, in this case, could have, without the unnecessary first surgery, caused any of plaintiff's injuries or his death. Such testimony is required for Scafidi to be applicable. Tindal v. Smith, 299 N.J.Super. 123, 135, 690 A.2d 674 (App.Div.1997).
In this case, the jury was asked "By what percentage did the negligence of one or more Defendants decrease Mr. Lazarich's chance of survival?" The jury answered, forty-percent, and defendants argue that this reflects plaintiff expert's opinion that the first surgery enhanced the possibility of complications in the second surgery by approximately forty-percent. However, the only evidence relating to Lazarich's chance of survival pertained to his colon cancer. No doctor linked the surgery complications to any chance of death or survival. In fact, no autopsy was performed and it was not known precisely what caused Lazarich's death.
The only negligence claimed in this case related to Dr. Galler's first unnecessary surgery and the post-operative care he rendered. No one argued that the second surgery was performed negligently. Thus, if Dr. Galler's negligence decreased Lazarich's chance of survival by fortypercent, there would have been a sixtypercent chance that possible surgery complications associated with the first surgery alone would have, without the second surgery, caused plaintiff's demise. There was absolutely no testimony supporting such a conclusion. The only testimony indicated that Lazarich faced less than ten-percent chance of complications associated with the first surgery, and the enhanced risk of the second surgery was caused by the unnecessary first surgery.
Both plaintiff and defense experts agreed that colon surgery has specific complications. But the complications in this case were associated with the surgery, and were only possible consequences. They did not preexist in Lazarich. They did not precede the surgeon's work and did not constitute the reason that brought the patient to the doctor. Every preexisting condition that has been thus far recognized as warranting Scafidi's application has had a probable adverse consequence inherent in the condition and has been present in the patient's body. In addition, the condition has constituted at least one of the reasons that brought the patient to the doctor or has manifested itself during the patient's treatment. Eg., Lynch v. Scheininger, 162 N.J. 209, 215, 744 A.2d 113 (2000) (RH isoimmunization); Gardner v. Pawliw, 150 N.J. 359, 367, 696 A.2d 599 (1997) (defective umbilical cord); Fischer v. Canario, 143 N.J. 235, 239, 670 A.2d 516 (1996) (chest tumor); Lanzet v. Greenberg, 126 N.J. 168, 170, 594 A.2d 1309 (1991) (patient had cataract surgery during which a cardiac episode went unnoticed); Olah v. Slobodian, 119 N.J. 119, 122, 574 A.2d 411 (1990) (pancreatic pseudo-cyst); Scafidi, supra, 119 N.J. at 98, 574 A.2d 398 (premature labor); Velazquez ex. rel. v. Jiminez, 336 N.J.Super. 10, 23, 763 A.2d 753 (App.Div.2000) (abnormally large fetus); Hutchinson v. Atlantic City Medical Center-Mainland, 314 N.J.Super. 468, 472, 715 A.2d 348 (App.Div.1998) (E-coli infection); Arenas v. Gari, 309 N.J.Super. 1, 11, 706 A.2d 736 (App.Div.1998) (obstructive pneumonia); Greene v. Mem'l Hosp. of Burlington County, 299 N.J.Super. 372, 381, 691 A.2d 369 (App.Div.1997)(myocarditis); Ginsberg v. St. Michael's Hosp., 292 N.J.Super. 21, 26, 678 A.2d 271 (App.Div. 1996) (congestive heart failure); Roses v. Feldman, 257 N.J.Super. 214, 215, 608 A.2d 383 (App.Div.1992) (lung cancer); Battenfeld v. Gregory, 247 N.J.Super. 538, 543, 589 A.2d 1059 (App.Div.1991) (ruptured appendix).
*30 In this case, no doctor could have predicted with certainty that Lazarich would definitely suffer one or more of the specific complications that were, after all, only possible. Dr. Befeler explained that there was no way of knowing whether Lazarich would suffer any specific complication from either surgery, though his chances rose significantly in the second surgery because of the first surgery.
Indeed, Dr. Befeler explained how he believed the first surgery and the postoperative care made the second surgery much more difficult and risky for Lazarich and why Dr. Galler's erroneous first surgery proximately caused Lazarich's death. The Dr. explained that Lazarich
"had a history of bad clotting in the veins. Clotting to such a point that he had to have a special filter put in that he wouldn't have passed huge clots into his system but that doesn't protect the patient from little clots which means that when you are in a post-operative status with this patient, you have to do one of several things. Either thin the blood by giving the patient heparin or things like heparin, or put the compression boots which go around the lower leg of the patient, above the ankle to below the knee....
Initially, with the first operation that he did on the 24th, Dr. Galler ordered both, the heparin and the compression stockings. With the second operation that he did three days later, he ordered compression stockings for three days and the heparin was, it was discontinued on the second of February. So that from the second of February on, and the patient who, at that point, was, had a wound infection, who was essentially bed bound, who was about to split his wound openhe had what is called a dehiscence, where the abdomen, actually the wall opens up, and the bowel was actually seen by several nurses in the bottom of the wound.... And during that period of time, he threw, in my opinion, embolisms to the right lung which were defined. And probably they were small embolisms, because the big ones would ordinarily be trapped by the filter, but the little ones get through ...
It was a sufficient problem with the embolism to the lung that they actually could not repair this wound when it fell apart. He had been planned to go to the operating room on the day that he threw the embolism, and the surgery was cancelled and never took place. So from there on, for the remainder of the time that Mr. Lazarich lived, he had an open wound that required dressing changes that was obviously weeping during this entire period of time.
In addition, because of the nature of the surgery and the way it was performed three days after the first operation,... the anastomosis that was done the second time around, and that's a connection between the two pieces of intestine, had to be done two times in the operating room. It was done once, and then it leaked. And the fact that it leaked is a result of having been operated on just three days before that because the bowel doesn't connect well when you've just previously done the same operation. So it leaked. He had to take it out again, and that's a result it was almost twice the time to do the second operation as the first.... And all of that resulted in an increased risk of clotting, which he did; an increased risk of sepsis which is an infection in the body, which he had. He had positive blood cultures in the immediate period before he died. A wound that failed and actually could never be closed.
He was a man who came into the hospital without cardiac problems. He *31 had a minor bundle branch block, which is almost a normal occurrence in a 75 year old patient, but is on no medication when he came to the hospital. And he ended up with cardiac problems, pulmonary problems and infectious problems that brought him down. That's the story."
Finally, the doctor was asked "Doctor, ... do you have an opinion, as to whether the deviations that Dr. Galler did were a proximate cause of the injuries and the resultant death that you've described to us?" The doctor answered: "absent the deviations of Dr. Galler, not only would Mr. Lazarich be alive, but the, we wouldn't be here."
This testimony by Dr. Befeler rendered Scafidi inapplicable because it indicated that Dr. Galler's negligent conduct alone was a proximate cause of the patient's death. Ginsberg v. St. Michael's Hosp., 292 N.J.Super. 21, 30, 678 A.2d 271 (App. Div.1996). Scafidi has not totally eliminated in all cases the well settled principle "that a tortfeasor is liable for the natural and probable consequences of the tortious act." Id. at 35, 678 A.2d 271 (citing Ciluffo v. Middlesex General Hosp., 146 N.J.Super. 476, 482, 370 A.2d 57 (App.Div.1977)).
Because all surgery has complications, if we were to consider normal surgical risks to be preexisting conditions, then any surgical procedure which was negligently performed would be a Scafidi case. For example, assume stomach surgery had a tenpercent risk of infection. If the surgeon then left a sponge in the patient's body, causing an infection, could it be said that the doctor's negligence increased the risk of infection. Is that a Scafidi situation? One would think not because the surgeon's initial negligence was a proximate cause of the actual infection.
In Golinski, supra, 298 N.J.Super. at 652, 690 A.2d 147, we concluded that defendant was not entitled to an increased risk of harm instruction. We found that defendant had not established a preexisting condition, but rather that the plaintiff had the propensity to develop adhesions if surgical procedures were required. Id. at 657, 690 A.2d 147. However, further surgery would not have been required if the defendant had not negligently left a laparotomy pad inside plaintiff's abdomen following a cesarean section. Ibid. Thus, "[i]t was [defendant's] negligence which set other causes in motion and was a substantial factor in bringing about the two subsequent surgical interventions." Ibid.
Here also, based on Dr. Befeler's testimony, plaintiff's death can be traced to a single cause, Dr. Galler's unnecessary first surgery, and the standard proximate cause requirement applies. The record contains evidence supporting the proposition that the first surgery was a cause which necessarily set other causes in motion and was a substantial factor in bringing about plaintiff's death. Ginsberg, supra, 292 N.J.Super. at 29, 678 A.2d 271 (citing Catto v. Schnepp, 121 N.J.Super. 506, 511, 298 A.2d 74 (App.Div.), aff'd o.b., 62 N.J. 20, 297 A.2d 841 (1972)). The jury interrogatory asking whether any negligence decreased Lazarich's survival chances should not have been utilized because Scafidi was not applicable.
IV.
Because Scafidi should not have been charged in this case, we must reverse the judgment awarding wrongful death and survival damages. There is a further complication in that the judge did not instruct the jury on ultimate outcome, which is generally required in a Scafidi case, Fischer v. Canario, supra, 143 N.J. at 254, 670 A.2d 516, and the jury did not specifically determine proximate cause for the patient's death. Without either an ultimate *32 outcome charge or a proximate cause determination, we address whether a new trial on liability and damages is necessary.
The jury was asked by special interrogatory "Did Plaintiff prove that the complications which arose after the second surgery were connected because either (1)there was a first surgery or (2) the first and second surgeries were close in time?" In explaining this question to the jury, the judge told them "Essentially, this is going to ask you to determine whether you accept the opinion of Dr. Befeler, or you accept the opinion of Dr. Flynn. That's the issue." We have already explained how Dr. Befeler believed the two surgeries were related and that Dr. Galler's negligence was a proximate cause of plaintiff's death.
According to Dr. Flynn, defendant's medical expert, the two surgeries were completely unrelated. Dr. Flynn explained that plaintiff's argument relating the first and second surgeries made no sense to him. Dr. Flynn testified that the main problem was the left side surgery "and the fact they did the right side three days earlier, which was a very simple and quick operation, that in my mind had no connection whatsoever." Dr. Flynn believed that the complications in this case that caused Lazarich's death arose solely as a result of the second operation, and thus were not caused by any negligence.
The jury answered the special interrogatory on whether the surgeries were related affirmatively by an eight to zero vote. The jury also ascribed one-hundred percent to Dr. Galler for decreasing plaintiff's chance of survival. The jury must have believed that the complications which arose after the second surgery were connected to the first surgery because of the first surgery or because the first and second surgeries were close in time. Given these responses, we are confident that the jury in essence determined that Dr. Galler's negligence was a proximate cause of plaintiff's death, and a new trial on liability is not necessary.
Defendants never attempted to apportion the damages for Lazarich's death between the negligence and the surgery complications. There was no evidence ascribing what percentage any preexisting condition and negligence contributed to Lazarich's death. Even assuming Scafidi applied, we would conclude that defendants failed to apportion the injuries and consequently are liable for the full damages. Anderson v. Picciotti, 144 N.J. 195, 211, 676 A.2d 127 (1996).
Without the ultimate outcome charge, however, we are uncertain whether the jury provided full damages or reduced the verdict to account for the lost chance percentage they assessed against the doctor. There are indications that the verdict in favor of plaintiff and against Dr. Galler was not reduced, but we cannot know for certain how the jury reached its damage figures.
To resolve this conundrum fairly, and in the hope of eliminating the need for a new trial on damages, we give plaintiff an option. Plaintiff may either accept the verdict on the survival and wrongful death damages unreduced by Scafidi, or elect a new trial on these damages only. The case will be remanded to permit plaintiff to make this choice.
Reversed and remanded for further proceedings consistent with this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376189/ | 785 A.2d 913 (2001)
170 N.J. 223
HARLEYSVILLE INSURANCE COMPANIES, Plaintiff-Appellant,
v.
David GARITTA, Stephen Garitta and Joseph Licata, Defendants,
and
Albert C. Sabatelli, III, Administrator Ad Prosequendum and General Administrator of the Estate of Albert C. Sabatelli, IV, Deceased, Mildred M. Rafferty and Kristy Marie Ferrizzi, Defendants-Respondents.
Supreme Court of New Jersey.
Argued September 17, 2001.
Decided December 17, 2001.
*914 Betsy G. Liebman argued the cause for appellant (Capehart & Scatchard, Mt. Laurel, attorneys).
James F. Zaccaria argued the cause for respondents (Morrison & Trimble, attorneys; William E. Reynolds, on the letter in lieu of brief).
The opinion of the Court was delivered by VERNIERO, J.
This is a declaratory judgment action. Plaintiff insurer seeks a declaration that the homeowner's policy purchased by the insured does not provide liability coverage for certain conduct of the insured's son, also an insured person under the policy. Specifically, the son stabbed a third party during an altercation on the insured premises, and the victim died. The trial court granted summary judgment in favor of the insurer, concluding that the son's actions fell within the policy's provision excluding coverage for "`bodily injury' ... [w]hich is expected or intended by the `insured'[.]" The Appellate Division disagreed. The panel concluded that the circumstances of the stabbing, together with the son's intent or expectation in wielding the knife that killed the victim, are sufficiently unclear that a trial is warranted. We agree with the trial court and reverse.
I.
We consider the facts in a light most favorable to the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). On September 15, 1996, David Garitta and five of his friends were socializing at David's father's house in Greentown, Pennsylvania. Joseph Licata was among those gathered with David. At approximately 1:15 a.m., Albert Sabatelli arrived at the house unexpectedly. David and Albert had been friends, and Albert's mother, Mildred Rafferty, was the girlfriend of David's father. David, however, did not approve of his father's relationship with Rafferty. To express that disapproval in the preceding week, David had taken Rafferty's clothing and some personal effects from his father's house and had placed them in a bag on the porch. When Rafferty arrived the day after David had removed her belongings, he refused to let her enter the house.
Unbeknownst to David, his actions in respect of Albert's mother had infuriated Albert, who came to the Garitta house to confront him. According to David, Albert immediately began assaulting him. Albert pushed David, then grabbed his arm and took him into one of the bedrooms. David stated that Albert "was throwing me pretty hard against the wall." During the assault Albert cried out to David, "You're not respecting my mother, you owe her an apology." According to David's version of events, he did not want a physical confrontation and informed Albert that he did not want to fight.
*915 The fight eventually spilled over into another room and Albert placed David in a choke hold. Albert then cocked his fist to punch David. When asked if he had been frightened by those actions, David testified that he was "terrified." At that juncture two of David's friends interceded, telling David and Albert that they should take their fight "outside." Albert responded, "Come on I'll take you outside, I'll fight you outside ... let's finish this outside." David also quoted Albert as saying, "Remember, no cops no matter how bad I hurt you." Albert stated, "Okay, I'm going outside," and then he proceeded outside to the deck.
David testified that he believed that he had no choice but to go outside and confront Albert. He then went to his bedroom to put on his sneakers. When asked what he was planning to do next, David responded, "Going outside to get beat up. Maybe try to talk him out of it. Just, I didn't want to fight. I was thinking I didn't know why I was fighting in the first place."
David also explained that his intention was to "[j]ust go [ ] outside ... [because] [i]f I didn't go outside he would've [come] back inside." David testified that he did not try to lock the door after Albert went outside because the door to the deck was glass. He feared that Albert would try to break the glass door if he attempted to lock him out. David also expressed his view that Albert was the bigger and stronger of the two men.
Albert stood outside the house, allegedly shouting vulgarities at David. As David walked toward the end of the hallway, Joseph Licata handed him a knife that Licata had removed from the kitchen. We note, however, that in one of his early statements to the authorities, as reflected in the police reports prepared after the incident, David indicated that "he put on his sneakers and was walking out when he saw the fillet knife on the breakfast table." He told the police that he "picked up the knife[,] took it out of its sheath[,] and then walked out the door." He later clarified those comments by indicating that he "was given the knife by [Licata]" and that Licata "told him [what] to do with [the] knife." For purposes of this appeal, we accept David's assertion that Licata handed him the knife.
After giving him the knife, Licata purportedly stated to David, "[D]o what you gotta do.... Cut him like we do in New Jersey." David then put the knife in the back of his pants and went onto the deck. According to David, Albert was waiting for him and came towards him. David also testified, "I just got really scared and I took the knife behind my back and I stabbed him."
David stabbed Albert twice, puncturing his heart and stomach. He acknowledged that Albert was unarmed. The record indicates that Albert had removed his shirt prior to moving onto the deck. Albert's bare chest and stomach presumably enhanced the ability of the knife to puncture the victim's flesh, thus intensifying his injuries. David also acknowledged that he did not ask Albert to leave the property, nor did he tell Albert that he had a knife or warn him that he would cut him if Albert approached.
David stated that Albert "didn't give me a chance, he just came right at me," and that the victim's hands were "clenched." David indicated that he was more terrified at that juncture than he had been earlier. When asked whether he went onto the deck with the intention of killing the victim, David responded, "No." He testified that rather than wanting to hurt or stab Albert, he had hoped to persuade him to leave the premises. David repeated several *916 times that he was "really scared" and "terrified."
David further indicated that he was not aiming to stab Albert in "a vital part of his body," and that the two thrusts were close in time, "[o]ne right after the other, like really fast[.]" He indicated that he knew he had cut Albert but did not know that he had inflicted a knife wound to the victim's heart. David purportedly told Albert to go to the hospital. David then walked back into the house, washed the knife, and put it back in the kitchen. David claimed that only then, when one of his friends screamed, did he notice that Albert had collapsed and was injured seriously. David testified that he attempted to administer CPR to Albert and said to him, "I didn't mean for this to happen." A short time later, Albert was pronounced dead at the scene.
As a result of the altercation, Pennsylvania law enforcement authorities charged David with criminal homicide. Under the statutes in that jurisdiction, "[a] person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa. Cons. Stat. Ann. § 2501(a) (1998). Criminal homicide, in turn, is classified as "murder, voluntary manslaughter, or involuntary manslaughter." Id. at § 2501(b). In March 1997, David pled guilty to third degree murder (a degree of murder not recognized in New Jersey) and was sentenced to five years in prison.
The authorities also filed criminal charges against Joseph Licata, who had given David the knife used in killing the victim. Those charges were tried. Although the record does not indicate the results of that trial, at the time of the filing of this action Licata was serving a prison sentence presumably arising out of the incident. (Much of the factual recitation contained in this opinion is derived from testimony at the Licata trial.)
In September 1998, Albert's father, as administrator of his son's estate, filed a wrongful death action in the Law Division against David, David's father, and Joseph Licata. Mildred Rafferty, Albert's mother, and Kristy Marie Ferrizzi, the mother of Albert's child and his fiancee at the time of the incident, are also plaintiffs. The complaint alleges that David and Licata "instigated" the altercation in which Albert "was attacked and assaulted." The complaint also alleges that
[t]he recklessness, negligence and carelessness of the defendant, David Garitta, consisted of his use of a weapon without due regard to the dangerousness of said weapon or concern for the potential consequences of the use of said weapon, and his failure to recognize the danger presented by the introduction of said weapon into the altercation.
Plaintiffs seek compensatory and punitive damages.
Shortly after the filing of that complaint, Harleysville Insurance Companies (Harleysville) filed this action, seeking a declaration that the homeowner's policy it issued to David's father, which also covers David as a member of his father's household, provided no coverage to David for the injuries or death of Albert. The insurer named two groups of defendants in that action: (1) Albert's father and the other family members who are plaintiffs in the wrongful death action (defendants), and (2) David, David's father (the two insureds), and Joseph Licata.
The policy at issue provides liability coverage for "bodily injury" caused by an "occurrence" for which the insured is responsible. The policy defines an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, *917 which results, during the policy period, in ... `[b]odily injury'[.]" The policy defines "bodily injury" to mean "bodily harm, sickness or disease, including required care, loss of services and death that results."
At the heart of this appeal is the policy's provision that states that the insurer will not provide coverage for bodily injury "[w]hich is expected or intended by the `insured'[.]" Based on that exclusion, the insurer asserts that it is not obligated to provide coverage to David for the wrongful death of Albert or to undertake the defense of that action on David's behalf. (Although the altercation took place in Pennsylvania, plaintiffs filed their wrongful death complaint in New Jersey because two of the named defendants in that suit reside in this jurisdiction. Hence, the insurer commenced its declaratory judgment action here as well.)
The parties in Harleysville's action filed respective motions for summary judgment. In December 1999, the trial court granted the insurer's motion, concluding that the act of stabbing Albert itself demonstrated that David intended to cause him bodily injury within the meaning of the policy. The trial court stated:
I find that when you intendwhen you stab someone, you intend to harm them. And when you stab them twice[,] not once[,] you intend to kill them.... I think the intent is there and it can be gleaned from the actions taken. Not one stab[,] but two stabs[,] and, therefore, I find there's no coverage under the Harleysville policy.
Based on that same rationale, the trial court also determined that the insurer had no obligation to undertake the defense of the wrongful death action on David's behalf.
In an unreported opinion, the Appellate Division reversed. While expressing its view that "this is a close case[,]" the panel held that summary judgment was an improper disposition on the record presented. More specifically, the panel concluded that "a trial is required to determine what took place on the evening in question, how [Albert's] wounds were inflicted, and what David's intentions and expectations were in using the knife given [to] him by Licata." We granted the insurer's petition for certification, 167 N.J. 629, 772 A.2d 931 (2001), and now reverse.
II.
We note at the outset two wellestablished tenets that serve as a backdrop to our decision. First, "the words of an insurance policy are to be given their plain, ordinary meaning. `In the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased.'" Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595, 775 A.2d 1262 (2001) (quoting Gibson v. Callaghan, 158 N.J. 662, 670, 730 A.2d 1278 (1999)). Second, "[p]olicy provisions that exclude coverage resulting from intentional wrongful acts are `common,' are `accepted as valid limitations,' and are consistent with public policy." Allstate Ins. Co. v. Malec, 104 N.J. 1, 6, 514 A.2d 832 (1986) (citing Ruvolo v. Am. Cas. Co., 39 N.J. 490, 496, 189 A.2d 204 (1963)).
Within that broad framework, disposition of this appeal turns largely on the application of the principles articulated in SL Industries, Inc. v. American Motorists Insurance Co., 128 N.J. 188, 607 A.2d 1266 (1992), and Prudential Property & Casualty Insurance Co. v. Karlinski, 251 N.J.Super. 457, 598 A.2d 918 (App.Div.1991). In Karlinski, the insured's minor son, James, Jr. (also a named insured), had participated in a "pre-arranged voluntary physical confrontation" with another young man, Mark, in which Mark suffered a fractured *918 hip. Karlinski, supra, 251 N.J.Super. at 459, 461, 598 A.2d 918. The insured's homeowner's policy contained a provision excluding coverage for "`bodily injury ... which is expected or intended by the insured.' "Id. at 459, 460, 598 A.2d 918. Based on that exclusion, the insurer sought a declaration that it was not required to defend or indemnify James, Jr. in respect of Mark's injuries. Id. at 459, 598 A.2d 918.
The trial court granted summary judgment in favor of the insurer, concluding that James, Jr. had "instigated the fight and threw the first blow and started the fight." Id. at 460, 598 A.2d 918. The trial court based its decision on its reading of depositions and other information obtained through discovery. Ibid. The court further concluded: "As far as I am concerned, it is intentional conduct and the coverage doesn't apply." Ibid.
The Appellate Division reversed. Surveying the case law, the panel observed that "it is difficult to ascertain a clear weight of authority on the subject of liability insurance coverage for unintended results of intentional acts." Id. at 464, 598 A.2d 918. With that observation in mind, the court adopted the following standard:
[W]hen a coverage exclusion is expressed in terms of bodily injury expected or intended by the insured, and where the intentional act does not have an inherent probability of causing the degree of injury actually inflicted, a factual inquiry into actual intent of the actor to cause the injury is necessary.
[Ibid.]
Based on that standard, the panel determined that a factual dispute existed regarding "whether Mark's broken hip was expected or intended by James, Jr." Id. at 465, 598 A.2d 918. Thus, a trial was necessary. In so concluding, the court also observed "that young teenagers today, no less than their forebearers, are prone to engage in mutually accepted tests of dominance and prowess, involving physical contact. These may take the form of ... king-of-the-hill assaults ... in which, physicality notwithstanding, there is no intent to cause more than passing discomfort." Id. at 465 n. 3, 598 A.2d 918.
This Court adopted the Karlinski standard in SL Industries, supra, 128 N.J. at 212, 607 A.2d 1266. In SL Industries, an employee had filed an employment discrimination suit against his employer, asserting age discrimination and commonlaw fraud arising out of the employer's elimination of the employee's position. Id. at 194, 607 A.2d 1266. The employee alleged that he had suffered bodily and personal injury as manifested by "loss of sleep, loss of self-esteem, humiliation and irritability." Id. at 195, 607 A.2d 1266. The employer settled the suit and then sought a declaration that its insurer was obligated to indemnify it for the settlement. Id. at 195-96, 607 A.2d 1266.
The policy required the insurer to indemnify and defend the employer for all damages resulting from "bodily injury" caused by an "occurrence." Id. at 194, 607 A.2d 1266. The policy defined "occurrence" to mean an "`accident ... which results in bodily injury ... neither expected nor intended from the standpoint of the insured.'" Ibid. The trial court granted summary judgment in favor of the insurer. Id. at 196, 607 A.2d 1266. The Appellate Division reversed, remanding the case to the Law Division for determination of whether the employee's asserted emotional distress was intended or unexpected by the employer. Id. at 196-97, 607 A.2d 1266.
In affirming the Appellate Division's judgment, this Court disposed of a number of issues, only one of which is relevant *919 here. Specifically, we addressed "whether any intent to injure [on the part of the insured] will render the resulting injury intentional, whether the wrongdoer must intend the specific injury that results, or whether there is some middle ground between the two approaches." Id. at 209, 607 A.2d 1266. Reviewing the same competing authorities considered by the Karlinski court, we concluded that that court had adopted the appropriate standard.
We explained:
[T]he [Karlinski] court held that under normal circumstances, when the result of an action conforms to that which one would predict, the demonstration of a subjective intent to injure is sufficient to preclude coverage without further inquiry into the intent to cause the actual injury that resulted. However, in those circumstances in which the facts indicate that the acts in which the insured engaged were unlikely to result in the degree or type of injury that in fact occurred, an inquiry into the subjective intent to cause the resulting injury is in order.
We believe the Karlinski test presents the most reasonable approach. It conforms to an insured's objectively-reasonable expectations and provides the victim with the greatest possibility of additional compensation consistent with the goal of deterring intentional wrongdoing. Assuming the wrongdoer subjectively intends or expects to cause some sort of injury, that intent will generally preclude coverage. If there is evidence that the extent of the injuries was improbable, however, then the court must inquire as to whether the insured subjectively intended or expected to cause that injury. Lacking that intent, the injury [is] "accidental" and coverage will be provided.
[Id. at 210, 212, 607 A.2d 1266.]
On the same day we issued our opinion in SL Industries, this Court also decided Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165, 607 A.2d 1255 (1992). The insurance clause at issue in Voorhees excluded coverage for "`liability ... caused intentionally.'" Id. at 171, 607 A.2d 1255. In discussing how courts should approach such provisions, we observed: "The key issue is whether the court must find a subjective intent to injure, or whether it can presume an intent to injure from the objective circumstances." Id. at 184, 607 A.2d 1255. In the underlying suit, a teacher alleged wrongful conduct against a parent (the insured), who had purportedly damaged the teacher's reputation and caused her emotional distress accompanied by certain physical symptoms. Id. at 169-71, 607 A.2d 1255.
In affirming the Appellate Division's determination that summary judgment in favor of the insurer was not appropriate, the Court reiterated that the "general trend" in the case law "requir[ed] an inquiry into the actor's subjective intent to cause injury." Id. at 184, 607 A.2d 1255. The Court, however, described a narrow but critical departure from that trend:
When the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor's subjective intent to injure. That objective approach focuses on the likelihood that an injury will result from an actor's behavior rather than on the wrongdoer's subjective state of mind.
[Ibid.]
As a general rule, then, policy exclusions of the type at issue here represent enforceable limitations to an insurance contract when free of ambiguity. Courts *920 ordinarily should refrain from summary judgment in respect of whether an insured intended or expected to cause the actual injury to a third party unless the record undisputedly demonstrates that such injury was an inherently probable consequence of the insured's conduct. In that latter circumstance, a trial may not be necessary to determine the applicability of the exclusion, provided that there has been a sufficient demonstration of the insured's subjective intent to cause some degree of injury. When the insured's conduct is particularly reprehensible, courts may presume an intent to injure without inquiring into the actor's actual intent.
III.
Applying those tenets, we hold that the trial court correctly granted summary judgment in favor of the insurer. The undisputed facts indicate that David exited the house with a knife hidden in the back of his pants and met Albert, who was unarmed. Shortly before the deadly encounter, Licata had urged David to "[c]ut [Albert] like we do in New Jersey." Without warning, David then thrust the knife into Albert's bare torso, twice. The insured acknowledged those acts, stating that the thrusts were close in time, "[o]ne right after the other[.]"
Under those circumstances, a trier of fact need not determine David's actual intent. The insurer has demonstrated that the insured intended to cause some injury, and that the actual injury that led to Albert's death was an inherently probable consequence of the insured's actions. Thus, the trial court properly determined the insured's intention or expectation, within the meaning of the exclusionary clause, as a matter of law. Consistent with SL Industries and Voorhees, no further factual inquiry is necessary to resolve this dispute.
Courts in other jurisdictions have ruled similarly in analogous contexts. See, e.g., Econ. Fire & Cas. Ins. Co. v. Meyer, 427 N.W.2d 742, 744-45 (Minn.Ct.App.1988) (affirming summary judgment in favor of insurer when insured used kitchen knife to stab man found in girlfriend's bed, even accepting fact that insured was presented with "provocative situation," because conduct was of such nature that "`common sense require[d] ... an inference that insured intended ... to injure'") (internal citation omitted); Yother v. McCrimmon, 147 Mich.App. 130, 383 N.W.2d 126, 128 (1985) (affirming summary judgment in favor of insurer when insured struck victim with tire iron because injury was natural, foreseeable, and "expected" result of insured's actions, notwithstanding insured's claim that he acted solely in self defense); Hanover Ins. Co. v. Newcomer, 585 S.W.2d 285, 289 (Mo.Ct.App.1979) (affirming declaratory judgment in favor of insurer when insured, while under influence of alcohol and marijuana, swung machete, striking victim in groin and leg).
Defendants urge a contrary conclusion, contending that David's plea arrangement in Pennsylvania evinces that he did not possess the specific intent to kill Albert. Alternatively, they argue that the allegations of "recklessness, negligence and carelessness" contained in the wrongful death complaint trigger a duty on the part of Harleysville to defend that action, irrespective of David's intent. In support of that latter contention, defendants cite a passage from Voorhees in which this Court noted that an insurer's duty to defend "is determined by comparing the allegations in the complaint with the language of the policy. When the two correspond, the duty to defend arises, irrespective of the claim's actual merit." Voorhees, supra, 128 N.J. at 173, 607 A.2d 1255.
*921 Although there is some support for defendants' contentions, neither argument is persuasive. First, David's criminal plea, although helpful in putting his actions in context, is not dispositive in respect of whether the policy exclusion applies in this instance. We assume that David's pleading to third degree murder reflected his refusal to admit to intentional wrongdoing. See 18 Pa. Cons. Stat. Ann. § 2502(c) (1998) (providing that murder in third degree excludes homicides committed by intentional killing). That said, we are not bound by the implications of that criminal plea agreement when determining whether the insureds' policy exclusion should apply in this purely civil context. Cf. Bittner v. Harleysville Ins. Co., 338 N.J.Super. 447, 455-57, 769 A.2d 1085 (App.Div.2001) (explaining that some forms of conduct, such as acts of domestic violence, are so reprehensible that public policy compels that wrongdoers be denied insurance coverage, even when they are found to have possessed only reckless mental state).
In so concluding, we adopt the same approach that was used in State Farm Fire & Casualty Co. v. Gorospe, 106 F.Supp.2d 1028 (D.Haw.2000). In Gorospe, the federal district court considered whether the insured's manslaughter plea established triable issues of fact in respect of whether the insured intended to kill his victim. More specifically, the insured shot the victim six times in the head and body, and he later pled no contest to the charge of manslaughter. Id. at 1029. The applicable state statute provided that a "person commits the offense of manslaughter if ... [h]e recklessly causes the death of another person[.]" Ibid. The plaintiff insurer sought a declaration that it was not obligated to indemnify the insured for his criminal acts on the basis of the homeowner's insurance policy's exclusion for bodily injury that was "expected or intended[.]" Id. at 1030.
Like defendants here, the defendants in Gorospe had argued that the policy's exclusion for intentional acts did not apply because, as reflected in the plea arrangement, the insured "[could] only be said to have killed [the victim] `recklessly,' not `intentionally.'" Id. at 1033. The district court granted summary judgment in favor of the insurer, concluding:
Defendants in criminal cases often plead guilty to lesser charges to avoid the risks associated with trial. By the same token, prosecutors are willing to accept pleas to lesser charges to avoid the difficulty, risk, and expense of trial. That [the insured] pled guilty to the lesser crime of manslaughter does not mean that [the insurer] is precluded from arguing that [the insured] expected to inflict [the victim's] injuries. The court is unpersuaded that [the insured's] no contest plea renders the "intentional act" exclusion inapplicable.
The undisputed evidence in this case demonstrates that [the insured's] shooting of [the victim] resulted in injuries that were, at the very least, "expected." Coverage for expected injuries is clearly excluded under the [applicable policy].
[Id. at 1034.]
We reason similarly in this case. We cannot know why the Pennsylvania prosecutors accepted David's plea to third degree murder, why David considered that plea, or why his friend, Licata, refused to plead at all. Those questions, however, do not control the analysis. Notwithstanding the plea, we are convinced that the undisputed facts demonstrate that David's stabbing of Albert resulted in injuries leading ultimately to the victim's death, and that death was an inherently probable consequence of David's conduct. Thus, the exclusion applies in this setting.
*922 Defendants' second contention is equally unavailing. As noted, the wrongful death complaint makes a brief reference to David's purported "recklessness, negligence, and carelessness[.]" For purposes of the exclusion, however, we are persuaded that the gravamen of the wrongful death action from David's standpoint is that a single course of conduct resulted in liability. The heart of that action, as stated plainly in the complaint, is that David and Licata "instigated" the altercation "in which [Albert] was attacked and assaulted." Therefore, in this unique circumstance, the Voorhees requirement of considering separate allegations when determining an insurer's duty to defend has been satisfied.
To conclude otherwise would require us to assume that David's conduct in taking the knife was negligent or reckless, but that his act of thrusting it into Albert was intentional. Such fine parsing of facts may be appropriate in some settings. For our limited purposes, however, we view the insured's conduct to be a single act comprised of both the taking and thrusting of the knife into the victim. Because the probable consequences of that act inhere from the act itself, there is no coverage. Notwithstanding our conclusion that the exclusion applies irrespective of the disposition of the wrongful death action, we do not decide or suggest what issues or allegations remain to be tried in that action in respect of any party. We decide issues of coverage only.
Further, we note that David's father, also an insured, is in a different position. In addition to allegations against David, the wrongful death complaint also alleges that David's father was negligent and careless in his supervision of both his son and the insured premises on the night of Albert's death. Because Harleysville's action seeks a declaration concerning its responsibilities to David only, our disposition does not implicate the insurer's obligations in respect of any allegations against David's father.
Again, our approach has been replicated in other jurisdictions. One case, Economy Fire & Casualty Insurance Co. v. Meyer, supra, 427 N.W.2d 742, is particularly instructive. In that case, the insured, who had been "drinking heavily," visited his girfriend's house and found another man sleeping in her bed. Ibid. The insured took a knife and fork from his girlfriend's kitchen, then proceeded to the bedroom and stabbed the man. Ibid. The insured explained his conduct as follows:
I walked into the bedroom and there was the guy, laying in her bed. And I guess it got the better of me. I went nuts. I ran into the kitchen and I opened up the kitchen drawer. I don't know what, which drawer it was. I grabbed whatever was in there. And I ran in and I hit him with it. I didn't know if it was a fork, spoon, knife, I didn't know what it was. But, I was just so mad and I just hit him with it. And after I did that I ran out of the room.
[Id. at 743.]
The victim of the attack sued the insured for damages. As part of the settlement of that suit, the insured admitted negligence. Ibid. Notwithstanding that admission and the insured's explanation of his conduct, the trial court granted summary judgment in favor of the insurer, concluding that the insured's actions fell within the intentional-acts exclusion of his policy. Ibid. The court stated:
To excuse [the insured's] conduct in this situation as an instinctive reflex in a provocative situation, a naked man in his girlfriend's bed, would in effect, legitimize lawlessness .... Similarly, [the insured's] return to the kitchen to arm himself to return to confront the naked *923 man and stab him is not conduct an insured could reasonably expect to be covered by insurance.
[Ibid.]
The victim appealed, and the appellate court affirmed. Id. at 742, 745. See also Hanover Ins. Co. v. Newcomer, supra, 585 S .W.2d at 287, 289 (enforcing exclusionary clause notwithstanding that one count of victim's complaint sought damages from insured "for wanton and reckless conduct without presence of mind").
Here, we accept as true David's repeated testimony that he did not intend Albert's death. That testimony, however, does not alter the reality that the insured affirmatively stabbed Albert with a knife, an inherently dangerous object, given to him by Licata for the purpose of cutting or harming the victim. See N.J.S.A. 2C:391r (defining weapons capable of lethal use to include certain knives). We are not confronted with a "king-of-the-hill assault" in which two teenagers caused no more "than passing discomfort." Karlinski, supra, 251 N.J.Super. at 465 n. 3, 598 A.2d 918. Instead, as previously stated, the record demonstrates that the insured's conduct in taking and wielding the knife resulted in bodily injury leading to death, an inherently probable consequence of that action.
Further, that the record might suggest that David acted in self defense or was a reluctant combatant is not dispositive. We were informed at oral argument that although a self-defense exception to the intentional-wrong exclusion is available to policyholders, one was not procured for the policy here. We cannot, therefore, write for the insureds a better insurance policy than the one bargained for and purchased. Zacarias, supra, 168 N.J. at 595, 775 A.2d 1262; cf. Aviation Charters, Inc. v. Avemco Ins. Co., 170 N.J. 76, 79, 784 A.2d 712 (2001) (cautioning that requiring causal connection between cause of accident at issue in that case and policy's unambiguous exclusionary clause would amount to "`an unbargained-for expansion of coverage, gratis, resulting in the insurance company's exposure to a risk substantially broader than that expressly insured against in the policy.'" (quoting Zuckerman v. Nat'l Union Fire Ins. Co., 100 N.J. 304, 324, 495 A.2d 395 (1985))).
Moreover, we are not presented with a situation in which insureds have claimed that they reasonably expected coverage for defense of themselves, their home, or family members when a burglar or stranger has broken into the insured premises. Whether coverage would apply in that instance would depend partly on the body of case law pertaining to the doctrine of reasonable expectations. See Zacarias, supra, 168 N.J. at 594-601, 775 A.2d 1262 (outlining contours of doctrine and relevant case law). Accordingly, our holding is not intended to address the situation in which a burglar unlawfully enters an insured's residence. That situation would be governed in part by principles not implicated in this appeal.
Additionally, our holding is not to be understood as establishing a per se rule of excluding coverage whenever a knife or similar instrument is used by an insured and results in injury or death. For example, if David and Albert had wrestled over control of the knife and David inadvertently had cut into Albert, summary judgment might not have been appropriate. In any event, that another person may have handed David the knife, or implanted the thought of its use in his mind, does not alter the inherently probable consequences of the insured's conduct.
In the last analysis, our holding is compelled not only by a sensible application of prior case law, but by simple common sense. See, e.g., Dynasty v. Princeton Ins. *924 Co., 165 N.J. 1, 19, 754 A.2d 1137 (2000) (emphasizing that Court's decision in respect of increase-in-hazard exclusion in insurance policy was "dictated as much by common sense as by straightforward reading of the [insurance] statute"); Vornado, Inc. v. Hyland, 77 N.J. 347, 365, 390 A.2d 606 (1978) (Pashman, J., dissenting) (extolling virtue of "test of common sense" in resolving disputes). Logically, a person in David's position would have expected that serious injury or even death would have resulted from a heated altercation in which one party, armed with a knife, thrusts it quickly into an unarmed adversary. In short, we are persuaded that Harleysville did not assume the risk of liability on the record presented.
IV.
In sum, we resolve this dispute by applying the principles articulated in Voorhees and SL Industries. If the insured's conduct is particularly reprehensible, then the insured's intent may be presumed as a matter of law, without further inquiry by a trier of fact into whether the insured intended to cause the actual injury that resulted. Absent such exceptional circumstances, further inquiry still may be unnecessary if the actual injury inflicted was an inherently probable consequence of the insured's conduct. Arguably, in this case, the fact that David initially hid the knife from Albert, and then thrust it twice into the victim's bare flesh, may be considered particularly reprehensible. Even if we assume that David's conduct did not rise to that level, the mortal injury inflicted on Albert was an inherently probable consequence of the insured's actions. Therefore, David's intent for purposes of the exclusion may be found as a matter of law, without further inquiry by a trier of fact.
V.
The judgment of the Appellate Division is reversed. The trial court's grant of summary judgment in favor of the insurer is reinstated.
LONG, J., dissenting.
Like the Appellate Division, I would reverse the grant of summary judgment in favor of Harleysville. I do not view this as a case in which David's intent can be presumed as a matter of law nor do I consider his essentially uncontroverted version of the events to warrant application of the "particularly reprehensible" conduct principle enunciated in Voorhees, supra, 128 N.J. at 184, 607 A.2d 1255. Indeed, the Appellate Division's statement of the facts relevant to an inquiry under Brill, supra, 142 N.J. 520, 666 A.2d 146, reveal that they are equivocal at best on the critical matter of intent and that the majority's view requires us to
ignore David's testimony as to his state of mind, his claimed desperate attempt to protect himself, everything that preceded the stabbing, and even the actual stabbing itself. As to that last point the infliction of the knife woundsit is significant that David described a swinging motion, with no attempt to stab and certainly no intent to stab in the heart or the stomach. Indeed, he says he thought he had cut Sabatelli's wrist, and only learned of Sabatelli's serious injury when someone else screamed and called it to his attention.
None of that evidence is refuted. There is no medical evidence describing the stab wounds, or any expert testimony indicating how the wounds were inflicted, their depth, the amount of force necessary to inflict them, or anything else which would contradict David's version of the incident. (footnote omitted).
*925 Similarly, nothing has been presented to contradict defendant's version of Sabatelli's aggression, the beating Sabatelli was inflicting on David, David's being "terrified" of Sabatelli, and the practical impossibility of his avoiding the further confrontation which Sabatelli demanded. Under those circumstances, David's swinging the knife as he described, for the purpose of warding off Sabatelli's attack, could represent self-defense with no intention of expectation of inflicting an injury of any significant magnitude.
We do not, of course, hold that David's version of the incident must be accepted. But we do conclude (particularly with no conflicting testimony or other evidence), that his story is not so improbable or unacceptable as to warrant rejection under the standard of Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). If David's description of Sabatelli's aggressiveness is accepted, then David's state of mind is not difficult to comprehend, and if both those propositions are accepted, then David's version of the actual stabbing is not so unlikely that a court must reject it and conclude that no rational jury could accept it. And finally, if David's description of the incident is accepted, then the S.L. Industries and Karlinski tests do not necessarily lead to the conclusion that Sabatelli's death was the "expected or intended" result of David's actions.
I fully agree with that analysis and subscribe to the Appellate Division's determination that "a trial is required to determine what took place on the evening in question, how Sabatelli's wounds were inflicted, and what David's intentions and expectations were in using the knife given him by Licata." Coverage should depend on the outcome of that trial.
I also subscribe to the Appellate Division's reversal of the summary judgment entered in favor of Harleysville on the duty to defend. The sole basis for the summary judgment was that there is no duty to defend in the absence of a duty to indemnify. Because I believe resolution of the duty to indemnify should await the outcome of the trial, the duty to defend should not be disposed of in such a way. Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 389-90, 267 A.2d 7 (1970). For those reasons, I respectfully dissent.
Justice COLEMAN joins in this opinion.
For reversal and reinstatementChief Justice PORITZ and Justices STEIN, VERNIERO, LaVECCHIA, and ZAZZALI5.
For affirmanceJustices COLEMAN and LONG2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376427/ | 530 S.W.2d 714 (1975)
STATE of Missouri, Plaintiff-Respondent,
v.
James Lee GRANBERRY, Defendant-Appellant.
No. 36183.
Missouri Court of Appeals, St. Louis District, Division Three.
October 28, 1975.
Motion for Rehearing or Transfer Denied December 10, 1975.
Application to Transfer Denied January 12, 1976.
*717 Slonim & Ross, Arthur H. Slonim, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Lucia Leggette, Jefferson City, Gene McNary, Pros. Atty., George Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
GUNN, Judge.
Defendant-appellant James Granberry appeals from his second conviction for the first degree murder of University City police officer Wilber Downey. In 1971, defendant was convicted of the murder of Officer Downey and his punishment assessed at death, but on appeal to the Missouri Supreme Court the judgment of conviction was reversed and the cause remanded for a new trial.[1] On the second trial, defendant was again convicted of the first degree murder of Officer Downey and sentenced to life imprisonment. On this appeal of his second conviction, defendant raises six points of alleged error. He contends: 1) that the trial court was without jurisdiction to try his case as the trial was held on a suspended indictment; 2) that the trial court erroneously admitted evidence of other crimes for which defendant was not on trial; 3) that the trial court erred in overruling defendant's motion to suppress certain evidence alleged to be the product of an illegal arrest; 4) that various comments and arguments of the prosecuting attorney regarding defendant were so vituperate and vitriolic as to deprive him of a fair trial; 5) that defendant was materially prejudiced by the admission of alleged inadmissible testimony by a police officer investigating the case; 6) that fingerprint evidence was admitted without proper foundation. We find no reversible error and affirm the judgment.
The facts are these. During the early morning of December 12, 1969around 1:30 a. m.a brown Pontiac carrying five young men entered a Clark service station on Olive Street Road in University City. After being served by the station attendant two of the men from the car ordered the attendant into the back room of the station and forced him to lie down on the floor. The two men took the attendant's money from his pockets and pried open a cabinet. While the robbery was in progress, several customers drove into the station for service, and some of the customers noticing suspicious activity placed a call for police. University City police, including Officer Downey, responded to the call. Officer Downey entered the station and shots were heard. The station area was raked with an enfilade of gun fire, and the customers at the station scurried to lie doggo for safety. Two men, later identified as defendant and his cousin Darryl Granberry, were observed firing pistols and fleeing from the back room of the station. The identification of defendant was made by University City Police *718 Officer Edward Steinmeyer who had responded to the call and who was involved in an exchange of gun fire with the Granberrys.
Subsequent to defendant's first trial and prior to his second trial, Officer Steinmeyer died of natural causes, and his testimony from the first trial was read to the jury. Officer Steinmeyer testified that he fired his revolver until empty at the fleeing defendant and Darryl Granberry, wounding Darryl and halting his flight; that defendant with a revolver in his hand ran to the Pontiac pursued by Officer Steinmeyer. Defendant was able to enter the Pontiac, and Officer Steinmeyer reached through the open car window and struck defendant on the top of the head three or four times with his empty revolver in an effort to subdue defendant. However, defendant was able to escape in the Pontiac. Officer Steinmeyer testified that he had a good look at defendant's face and positively identified defendant as the person he had observed running from the station with a gun in his hand and who he had struck on the head and who had escaped in the Pontiac.
The pistol which Officer Steinmeyer observed defendant carrying as he was fleeing from the station back room was found on the Clark station lot at the point where the Pontiac had been parked before defendant's escape. The pistol which Officer Steinmeyer had seen defendant carrying and which was found on the ground after defendant had escaped was identified as belonging to Officer Downey. Ballistics established that Officer Downey had been fatally shot in the back by his own pistol.
Four of the participants in the incursion into the Clark station were arrested at the scene on December 12. Defendant was arrested in the afternoon of December 12 by St. Louis police. Police examination of defendant's scalp shortly after his arrest revealed a running wound and bump. The brown Pontiac was found abandoned within a mile of the Clark station. A thumbprint lifted from the Pontiac on December 12 after the robbery was identified as defendant's; a black leather jacket with a check stub made out to "T. A. Reinert" in a pocket was found near the abandoned Pontiac. Defendant's defense was that he was elsewhere at the time of the robbery.
I
Defendant first argues that his conviction and sentence are void on the ground that the indictment upon which he was tried had been suspended by operation of § 545.110 RSMo 1969 and Rule 24.14. Section 545.110 provides:
"If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed."
On July 9, 1970, an indictment (herein after the first indictment) was filed charging defendant with the first degree murder of Officer Downey. As previously mentioned, judgment of conviction on the first indictment was reversed and remanded by the Missouri Supreme Court. After the cause was remanded, the prosecuting attorney sought and obtained a second indictment, filed on October 12, 1973, containing two counts. The first count charged the defendant with the same crime charged in the first indictmentthe first degree murder of Officer Downey. The second count added the charge of first degree robbery.
Prior to trial and with substantial persuasion by the judge of the criminal assignment division and entreatment of defendant's counsel, an agreement was made in open court by the prosecutor and defendant's counsel to try the case under the first indictment with the prosecutor agreeing to the nolle prosequi of the second indictment in its entirety. The trial then proceeded pursuant to the agreementunder the first indictment, and a formal nolle prosequi of the second indictment was filed four days after the conclusion of the trial. The defendant *719 now argues that the second indictment was in effect throughout the trial and that the first indictment upon which he was tried and convicted at the second trial had no force or validity under § 545.110. Defendant thus suggests that the chasm of imperfection of trial under a suspended indictment is too wide and deep for the State to leap. If the defendant's contention is correct, the circuit court would not have had jurisdiction to try the case, since "there can be no trial, conviction or punishment for a crime without a formal and sufficient accusation. . . . [T]he complete absence of a formal charge is jurisdictional." State v. Harrison, 276 S.W.2d 222, 224, (Mo. 1955), cert. denied, Harrison v. State, 353 U.S. 942, 77 S. Ct. 822, 1 L. Ed. 2d 763 (1957). See also Montgomery v. State, 454 S.W.2d 571 (Mo.1970); State v. Hasler, 449 S.W.2d 881 (Mo.App.1969); 21 Am.Jur.2d Criminal Law § 390 (1965). It also should be noted that there can be no waiver of formal and sufficient accusation. Montgomery v. State, supra; State v. Gladies, 456 S.W.2d 23 (Mo.1970); 21 Am.Jur.2d Criminal Law § 390 (1965): "A criminal prosecution necessarily implies the existence of an accusation charging the commission of a criminal offense, as the basis thereof. . . . Such an accusation, in some form, is an essential requisite of jurisdiction which cannot be waived."
Section 545.110 has been construed to be self-executing. State v. Brown, 364 Mo. 759, 267 S.W.2d 682 (1954). Thus, if there are two indictments filed for the same offense, the first is automatically suspended. State v. Payne, 223 Mo. 112, 122 S.W. 1062 (1909); State v. Vincent, 91 Mo. 662, 4 S.W. 430 (1887). And while the second indictment is in effect, the first indictment is considered as having no force or vitality. State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908); State v. Williams, 191 Mo. 205, 90 S.W. 448 (1905); State v. Melvin, 166 Mo. 565, 66 S.W. 534 (1902). However, the validity of an earlier indictment can be revitalized and can be used to prosecute the defendant if the later indictment is no longer pending against him. In State v. Melvin, supra, where the second indictment was quashed prior to the trial on the first indictment, the court stated that:
"The first [indictment] is merely suspended but new life and validity may be imparted to it by the removal of the obstacle which caused the suspension, to wit, the second indictment, as was done in this case, by quashing it on the record. . . . [T]he statute requires the first indictment to remain suspended pending the period the second is in force, unless actually quashed by the court on the record; but, if the second is itself quashed without the first having been quashed, the first is restored to all its vigor. . . ." State v. Melvin, supra at 535-536. (Emphasis added.)
The question for us to determine is whether the "obstacle" of the second indictment had been removed prior to the defendant's trial thus making trial on the first indictment correct.[2]
The defendant contends that the second indictment was pending throughout the trial as evidenced by the filing of the nolle *720 prosequi after the conclusion of the trial. If this contention is correct, then State v. Mayer, supra, is controlling and a reversal of the conviction would be required. In State v. Mayer, supra, two informations charging the same offense were pending against the defendant. Trial was had on the first despite the fact that the second remained pending throughout the trial. The Missouri Supreme Court found that trial on the first indictment was improper and reversed the conviction.[3] In the case before us there is no dispute concerning when the nolle prosequi of the second indictment was filed. However, we find that there was an agreement entered into by all the parties prior to the commencement of the trial which was sufficient to dispose of the second indictment and thereby revive the first. The evidence of such an agreement, binding upon both parties is palpable.[4]
*721 Counsel for the defendant readily admitted that he had strenuously urged the prosecutor not to seek the second, two count indictment. After the second indictment was obtained, defense counsel continually requested that the prosecutor go to trial on the first indictment. Judge Schaaf, the criminal assignment judge, also attempted to dissuade the State from going to trial on the second indictment. Both Judge Schaaf and counsel for the defendant strongly expressed that it would be unfair to add a new charge four years after the crime. Defense counsel also argued that there would be problems with obtaining testimony on the new count, since one of the officers involved had died after the first trial. Defendant's counsel stressed that the addition of the new count would in effect punish the defendant for winning his appeal of his first conviction. Judge Schaaf testified on the motion for new trial that he was responsible for convincing the prosecuting attorney to try the case on the first indictment. Although reluctant at first, the prosecuting attorney finally did agree to go to trial on the first indictment with the consideration that defendant would agree to a continuance of the case to a later setting. He also agreed to a nolle prosequi of the second indictment. The record is conclusive that a binding agreement was made to try the case on the first indictment thereby voiding and terminating the *722 second; that all were fully aware that the defendant was going to be tried on the first indictment. In ruling on this point, after the hearing on the defendant's motion for a new trial, the trial court made the following findings of fact:
"1. Defendant sought and secured trial on the less hazardous (to him) charge.
2. And obtained an agreement in the presence of the Court that that State would nol-pros the later two count indictment."
We find that the open court agreement was sufficient in itself to dispose of the second indictment and thereby revive the vitality of the first indictment. It is manifest from the record that an agreement to dismiss the second indictment had been made in open court under court supervision. The agreement was binding on both parties. The State by the agreement was, before trial, precluded from trying a case under the second indictment whether or not the ritual of a formal nolle prosequi had been performed. The impediment to trying the first case had been removed by the agreement of the parties, and the first indictment was the properand onlyindictment upon which the State could proceed against the defendant. The first indictment was not dead, merely suspended, and its vestiges were fully resurrected and restored to life by the agreement which had the effect of putting the second indictment to death. The agreement of the parties was an accomplished fact and binding at the time it was made in open court upon both State and defendant's counsel. Pierson v. Allen, 409 S.W.2d 127 (Mo.1966); Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751 (1949); Landers v. Smith, 379 S.W.2d 884 (Mo.App.1964). We hold that in light of the agreement made by the parties, with the knowledge and approval of the court, the filing of memorandum of nolle prosequi was not necessary. We view the formal nolle prosequi of the second indictment after the trial was completed as merely ministerial and having no bearing on the validity of the first indictment. Since we find that the second indictment was sufficiently disposed of by virtue of the agreement, this case falls squarely within the holding of State v. Melvin, supra. The defendant was properly tried on a valid indictment.
II
The defendant claims that he was denied a fair trial by the testimony of a witness concerning the commission of another crime for which the defendant was not charged nor standing trial. The witness, Terry Reinert, testified that between midnight and one o'clock on the morning of December 12, 1969, he drove to a Phillips 66 service station near Lindbergh and Interstate 70. Upon entering the station lot, he saw a car parked in front of the station's office and saw five males, one by the car and the other four inside the building. He stated that he got a good look at three of the men and positively identified them in subsequent lineups and photographs. One of the three men so identified was the defendant. Reinert also made an in-court identification of the defendant. The other two men he identified were arrested by University City police officers during the course of the robbery at the Clark station. Reinert identified a jacket which he had worn when he had entered the Phillips station and a check stub made out to him. The jacket and check stub were found by police near the abandoned Pontiac. Reinert also identified the automobile, shotgun and metal box which he had seen at the Phillips station and which were recovered in the aftermath of the Clark station robbery.
Defendant asserts that it could be inferred from Reinert's testimony that defendant was involved in a robbery of the Phillips station, a crime for which he was not charged, and that, therefore, the testimony should not have been admitted.
"[P]roof of the commission of separate and distinct crimes generally is not admissible unless proof thereof has a legitimate *723 tendency to establish the defendant's guilt of the particular charge for which he is on trial. If improperly related to the cause on trial, testimony of other crimes for which defendant may be guilty violates his right to be fairly tried on the offense for which he is charged." State v. McElroy, 518 S.W.2d 459, 460-461 (Mo.App.1975). See also State v. Lee, 486 S.W.2d 412 (Mo.1972).
But evidence concerning separate and distinct crimes can be admissible when it tends to prove or establish: 1) motive; 2) intent; 3) absence of mistake or accident; 4) common scheme embracing commission of two or more crimes related to each otherthe proof of one tending to establish the other; and 5) the identity of the accused. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Gay, 523 S.W.2d 138 (Mo. App.1975); State v. Morris, 523 S.W.2d 329 (Mo.App.1975).
The State contends that the testimony was necessary in placing Granberry at the Clark station and in refuting his alibi. It should be noted that the defendant was the only one of the five participants not arrested at the scene of the crime. The State also points to the fact that there was only one eye witness that could identify James Granberry as the man escaping from the Clark stationOfficer Steinmeyer; since Officer Steinmeyer had died between the defendant's first and second trial, the State was required to read into the record the police officer's identification made at the first trial. It was the State's position that Officer Steinmeyer's testimony should be corroborated. Thus, through Reinert's testimony, the State attempted to prove that approximately one hour prior to the Clark station incident, the defendant was with four other men at the Phillips 66 service station. By tying Reinert's testimony in with other facts in evidence, the State sought to establish that the five men Reinert saw at the Phillips station were in fact the same men involved in the robbery of the Clark station and the murder of Officer Downey. Reinert identified two men other than the defendant as being at the Phillips station. The car that Reinert saw at the Phillips station and later identified by Reinert at the University City police lot was shown to be the car used by the five men at the Clark station as well as the car used by the defendant in his escape.
The shotgun found by the police at the Clark station was identified by Reinert as being similar to the one he saw at the Phillips station. Darryl Granberry's (defendant's cousin) fingerprint was lifted off the white cash box found at the Phillips station and identified by Reinert. From Reinert's testimony, it is logically inferable that the group at the Phillips station was the same group that robbed the Clark station and murdered Officer Downey one hour later. Since the defendant was identified as being a part of the group at the Phillips station, Reinert's testimony tends to prove that the defendant was present at the Clark station. Thus, we find that Reinert's testimony concerning what he saw at the Phillips station was properly admitted under the "identity" exception despite the fact that it tended to show the commission of another crime for which the defendant was not standing trial. But we also note that there was absolutely no reference by Reinert or any witness to any robbery occurring at the Phillips 66 station, although it would be somewhat fatuous to suggest that a jury could not infer that some type of crime had taken place at the Phillips station.
Our inquiry does not stop here. We must examine the testimony to determine whether or not it went beyond what was legitimately necessary to prove a material fact in issue. Since there exists a strong possibility of prejudice from such testimony, it has been held that reference to details of the uncharged crime, not logically relevant to the issue in question, is impermissible. State v. Lunsford, 338 S.W.2d 868 (Mo.1960); State v. Griffin, 336 S.W.2d 364 (Mo.1960); State v. Reese, supra. We find that Reinert's testimony was properly admissible. *724 The witness never expressly stated that he witnessed a robbery at the Phillips 66 station. Although it could be inferred from his testimony that the five men were in the process of robbing the station, this in itself does not make his testimony inadmissible. "[T]he fact that this testimony tended to show commission of other crimes (not gone into in detail) did not make it inadmissible." State v. Lunsford, supra, at 872. With the exception of one instance, Reinert's testimony did not go beyond relating details necessary to refute the defendant's alibi and establish his presence at the Clark station. The one instance mentioned occurred when Reinert was testifying about the shotgun one of the men was holding. In response to the question asked by the prosecutor: "Where did you see that (the shotgun)?", the witness answered: "Pointed at me." This response related a fact not relevant to refuting the defendant's alibi or placing him at the scene of the murder. However, it appears from the record that the witness volunteered this answer and that it was not really responsive to the question asked. The defense counsel's motion for mistrial was denied. The court did, however, instruct the jury that "with reference to this witness' testimony, his comment that in regard to the shotgun whether it was pointed at anyone or not is irrelevant to this proceeding and that comment of the witness may be stricken and you may disregard." Under these circumstances, the language in State v. Parker, 476 S.W.2d 513, 516 (Mo.1972) is particularly appropriate:
"The remarks objected to were volunteered by the witnesses. Errors of this nature cannot always be avoided, but when they do occur it is the duty of the trial court, who has observed the incident and is in a better position than an appellate court to evaluate the prejudicial effect, if any, to determine the possibility of its removal by action short of a mistrial. In this respect the trial court necessarily must be vested with broad discretion."
We hold that the trial court did not abuse its discretion in denying the drastic remedy of a mistrial. For the reasons stated above we find that Reinert's testimony was properly admitted[5] and particularly relevant to placing defendant in the car used in the robbery. State v. Gay, supra.
III
The defendant asserts that the trial court erred in overruling part of his motion to suppress evidence obtained as a result of an allegedly illegal arrest. He contends that the arrest was illegal because it was made without probable cause. The defendant was arrested in the city of St. Louis at 3:30 p.m. on December 12, 1969, the day of the robbery. The arrest was made without warrant by Officer Franklin of the St. Louis city police. Prior to going on duty, Officer Franklin was informed at a police roll call that James Granberry was wanted by the University City police in connection with a robbery and homicide. While on patrol, Franklin recognized the defendant and arrested him based on the roll call information. Once arrested, the defendant was searched and some money was found on his person. At 4:00 p.m. on the same afternoon, Officer Steinmeyer, who had grappled with the defendant at the Clark station, was shown and identified the defendant's picture. After this identification was made, the University City police *725 learned that Granberry was being held by the St. Louis police, and two officers were sent to the city to interview him. By parting defendant's hair, the officers found a scalp wound. The defendant's fingerprints were taken and later blood samples obtained. In his motion to suppress, the defendant moved to exclude the money, fingerprints and blood samples, as well as any testimony concerning the discovery of the scalp wound, as fruits of an illegal arrest. The court sustained the motion as to the money and overruled it as to the other evidence. We find that Officer Franklin's arrest, based on the roll call information, was made with sufficient probable cause.
In the hearing on the motion to suppress Officer Twillman of the University City police testified that while at the Clark station, Darryl Granberry, defendant's cousin who had been wounded, identified defendant as the person who had fled from the station. Officer Twillman related that information to other police.
Based on the identification of defendant by Darryl Granberry, Officer Twillman would have had sufficient probable cause to personally arrest the defendant.
"Information possessed by an officer that a felony has been committed and sufficient identification of the suspect as the perpetrator of the felony constitutes probable cause to believe that the offense was committed by the suspect, justifying arrest without a warrant and reasonable search and seizure as an incident to the arrest (including the taking of fingerprints and the seizure of articles of clothing.)" State v. Robinson, 484 S.W.2d 186, 190 (Mo.1972).
Since Officer Twillman had probable cause to make the arrest, other officers who received the information obtained by Officer Twillman would also have had probable cause to arrest the defendant. State v. Owens, 486 S.W.2d 462 (Mo.1972). And inasmuch as arrests made by officers based upon information received over the police radio are valid, State v. Whorton, 487 S.W.2d 865 (Mo.1972); State v. Ward, 457 S.W.2d 701 (Mo.1970); State v. Craig, 406 S.W.2d 618 (Mo.1966); State v. Morris, 522 S.W.2d 93 (Mo.App.1975); State v. Bradley, 515 S.W.2d 826 (Mo.App.1974), certainly, then, an arrest based on police roll call information forms sufficient basis for arrest without a warrant. Although the information obtained by Officer Twillman was relayed through other persons before reaching Officer Franklin, he possessed probable cause to arrest the defendant. Thus, the arrest was legal and the evidence obtained through the subsequent search was properly admitted. State v. Hammonds, 459 S.W.2d 365 (Mo.1970).[6]
In arguing that there was no probable cause for the arrest, the defendant, in essence, is claiming that the testimony of Officer Twillman was not credible. The defendant claims that if Darryl Granberry had in fact made statements implicating defendant they would have certainly appeared in a police report, which they did not. The defendant also notes that the second trial was the first time since the murder in 1969, that there was any testimony concerning Darryl Granberry's statements. These statements were not introduced in the motion to suppress the same evidence held prior to the defendant's first trial in 1971. The defendant also contends that the court's ruling on the motion to suppress demonstrated that the trial judge did not believe Officer Twillman's testimony. The trial court sustained the motion to *726 suppress the money found on the defendant immediately after his arrest but overruled the motion as to the head wound, blood samples and fingerprints. Since the evidence that was not suppressed was obtained only after Officer Steinmeyer identified Granberry's picture, the defendant argues that the trial court found probable cause to exist only after Steinmeyer's identification and not at the time of Officer Franklin's arrest. The defendant's argument overlooks the trial court's explanation for excluding the money. The court makes it clear that the money was not suppressed because of lack of probable cause:
"As regard to the money it is sustained (the motion to suppress) but on the ground the money is not conclusive on this defendant in this case due to the fact it is pretty clear to all parties concerned that the defendant might have gotten the money from a number of sources, including the other armed robberies he possibly was involved in the same evening."
This sufficiently explains the court's ruling, and it cannot be said that the money was excluded because the trial court did not believe Twillman's testimony.
The defendant also asserts that the trial court erred in denying his request for formal findings of fact and declarations of law pertaining to the court's ruling on the motion to suppress. In support of his position, defendant relies solely on Rule 26.01, which applies only to court tried cases and does not apply to rulings on pretrial motions. The rule is not apt here.
IV
The defendant contends that he was denied a fair and impartial trial due to various statements and arguments made during the trial by the prosecuting attorney. Since the incidents complained of are unrelated to each other, we will deal with each separately.
During the voir dire examination of the jury the prosecutor asked if the fact that the shooting had occurred four years ago would influence their decision. Counsel for the defense moved for a mistrial. Although the court reserved ruling on this motion, no further action was taken and the question was allowed. The defendant also refers us to the prosecutor's closing argument in which reference to the four year interval was made on three occasions. The defendant contends that mention of the four year delay would cause the jury to speculate on the reasons for the delay, including the possibility that the defendant had been a fugitive, or that there had been a previous trial and conviction and successful appeal on the same charge, or that the defendant had stood trial for other crimes during the interval. The defendant cites us to no cases in which reference to delays were found to be a denial of a fair trial. Upon review of the record we find defendant's contention untenable and without merit, for we also note that defendant's counsel was as frequent as the prosecutor in making comment that the crime had been four years previous. In presenting the case for the defense, counsel continually asked alibi witnesses to recall what occurred four years before. We find that references to the four year interval between the shooting and the trial were inevitable and unavoidable. None of the references was designed or intended to improperly inspire speculation on the part of the jurors. We hold that the defendant was not denied a fair trial due to such comments.
The defendant contends that the prosecutor's numerous references to the fact that the defendant and the other four participants in the murder and robbery were black injected racial prejudice into the trial, especially in light of the fact that the jury was all white. It has been held that "[w]here the color or race of the parties has a factual bearing on the issues, a reference thereto comes within the range of legitimate argument. But appeals to racial prejudice are prejudicial and many times have been held reversible error." State v. Jackson, *727 336 Mo. 1069, 83 S.W.2d 87, 94 (1935). The record reveals many references to the defendant's race during the prosecutor's opening and closing statements. No objections were made to any of these comments. Although some of the references may have been unnecessary, at no time were such statements derogatory. In addition, the defendant was present throughout the trial, and his identity was at issue. We find the language of State v. Taggert, 443 S.W.2d 168, 170 (Mo.1969) to be in point:
"The record here of the prosecuting attorney's opening statement does not itself show that the reference to appellants as being Negroes was designed to inflame the minds of the jury and thus prejudice appellants. The references are merely descriptive of the persons involved in the crime, and what the state would prove. Furthermore, appellants at no time objected to the term during the prosecutor's opening statement, but awaited the close thereof to move for a mistrial. As the state suggests, if counsel for appellants thought the use of the term really tainted the jury he should have objected when it was first used, rather than counting the number of times it was used, and then registering his objection at the close of the statement."
Further, we do not find the comments prejudicial. We also note that defendant's counsel made numerous references to the fact that blacks had been involved in the crime.
There was an additional reference to race in the prosecutor's closing arguments when he commented that three of the witnesses who testified were black. ". . . Why would Officer Franklin, a black officer, not that that implies he is any more truthful or not, but if any people think nobody is honest, and this Michael Steele and Thorton are black." While the prosecutor appears to be ascribing some import to the fact that three black persons testified against the black defendant and therefore added weight should be given to their testimony, however, an objection was made and sustained to the comment and the jury was instructed to disregard it. No further relief was requested, so the defendant received all the relief asked for. He cannot now be heard to complain. State v. Cissna, 510 S.W.2d 780 (Mo.App.1974); State v. Allen, 429 S.W.2d 697 (Mo.1968).
In a portion of his closing argument, the prosecutor speculated on what the murdered police officer might testify to from his grave. The prosecutor also described the defendant as having a brutal face. The defendant contends that these comments were highly prejudicial in that they inflamed and "personalized" the jury.
When prosecuting a criminal trial, the prosecutor occupies a quasi-judicial position and has the duty to "vouchsafe the defendant a fair and impartial trial based upon facts, not guesswork; legitimate inference from the facts, not prejudice; cool analysis and decision, not passion." State v. Heinrich, 492 S.W.2d 109, 114 (Mo.App.1973); See also State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (banc 1947). It is improper for the prosecutor to apply personal epithets to the defendant, State v. Turnbull, 403 S.W.2d 570 (Mo.1966); State v. Harris, 351 S.W.2d 713 (Mo.1961), and he must avoid argument which would have the effect of inflaming the prejudices or excite the passions of the jury against the defendant. State v. Tiedt, supra. However, in reviewing allegedly improper argument, it must be kept in mind that "[t]here exist many unpredictables in the trial of a lawsuit, but perhaps the most unpredictable is the flight to which words may soar in the heat and fatigue of the closing argument. It is thus recognized by our courts that as to the impropriety of argument and its effect, each case must be considered in light of the facts of that particular case." State v. Wintjen, 500 S.W.2d 39, 42 (Mo.App. 1973). As was said in State v. Tiedt, supra: "We are not concerned with an instance of a single breach arising more or less spontaneously under the stress and excitement of *728 contest." 357 Mo. 115, 206 S.W.2d 524, 528 (banc 1947).
On its face, the prosecutor's statements seeking to disinter Officer Downey from the grave appear to be inflammatory and outside of the record. However, it is apparent from the record that it was defendant's counsel who made first reference to Officer Steinmeyer's "testifying from the grave," and that Officer Steinmeyer "would say defendant was not guilty." Since the defendant opened up the type of argument, we cannot say that the prosecutor argued improperly by attempting to counteract the effect of the defendant's argument. State v. Odom, 353 S.W.2d 708 (Mo.1962).
The prosecutor's description of the defendant as having a brutal face, although unnecessary and intemperate, cannot be said to be so prejudicial or denigratory as to warrant the granting of a new trial. It should be noted that no objection was made to the comment.
The prosecutor's arguments and statements do not approach the flagrantly unbridled argument found to be grounds for reversal in State v. Heinrich, supra and State v. Tiedt, supra. Although some of the prosecutor's statements may have been somewhat impetuous, this would not automatically require the granting of a mistrial or a reversal on appeal. "Every instance of a prosecutor exceeding the limits of legitimate argument is not a cause for declaring a mistrial." State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970). See also State v. Wallace, 504 S.W.2d 67 (Mo.1973); State v. Harris, 351 S.W.2d 713 (Mo.1961); State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763 (1930). The comments of the prosecutor do not constitute reversible error.
V
The defendant asserts that he was materially prejudiced by certain aspects of the testimony of University City Police Captain Reich. Captain Reich testified that he and another officer went to the St. Louis police station to interrogate the defendant. In response to a question asked by the prosecutor concerning what the Captain told the defendant prior to the interview, the Captain testified: ". . . I advised him of his rights under Miranda, and I also told him we were investigating the death of one of our officers and that we had information he was involved in that death." At this point counsel moved for a mistrial on the grounds that the statement indicated that the police had evidence of the defendant's guilt other than that presented to the jury during the trial. The trial court sustained the objection. The jury was instructed to disregard the Captain's answer with the exception of that part relating to the giving of the Miranda warnings. The motion for the mistrial was denied. The defendant asserts that the trial court erred in so ruling.
"[A] mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way. For this reason the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial." State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). See also State v. Robinson, supra; State v. Flauaus, 515 S.W.2d 873 (Mo.App.1974); State v. Heather, 498 S.W.2d 300 (Mo. App.1973).
In the discussion on this motion between counsel and the court, the court clearly evaluated the statement's effect on the jury as "minimal." We can find no reason for disturbing the trial court's appraisal of the impact of Captain Reich's answer. Any prejudice stemming from the testimony was satisfactorily purged.
During the State's re-direct examination of Captain Reich, the witness was *729 asked why the interview with the defendant was terminated after a short period of time. Captain Reich answered: "I felt that Mr. Granberry was under the influence of some kind or some type of intoxicant." An objection was made prior to the answer, but the court allowed the witness to respond. The defendant contends that this testimony should not have been admitted because proper foundation had not been laid to support the conclusion reached by the witness. The defendant adverts to two cases that stand for the proposition that "lay witnesses may render an opinion as to the intoxication of another if preceded by evidentiary facts of conduct and appearance personally observed by them to support the opinion." State v. Fisher, 504 S.W.2d 281, 283 (Mo. App.1973); See also State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971). In both of these cases the defendants were charged with driving while intoxicated. Thus, the testimony as to intoxication in both cases went directly to the crime charged. Such is not the case here. In addition, we find that during his cross-examination of the witness, counsel for the defendant initiated the line of testimony. Counsel brought out the fact that no report was made of the interview. Throughout his line of questioning, defendant's counsel appeared to be inferring that either the police were deficient in their investigation or that they were attempting to cover up something that occurred during the interview. To counteract the effect of the cross-examination, the State asked the question regarding defendant's behavior.
"It is a well settled rule . . . that, where either party introduces part of an act, occurrence, or transaction, . . . the opposing party is entitled to introduce or to inquire into other parts of the whole thereof, in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary, or prove his version with reference thereto." State v. Odom, supra at 711, quoting from 22A C.J.S. Criminal Law § 660c (1961); See also State v. Bendickson, 498 S.W.2d 593 (Mo.App.1973).
VI
Defendant's final point challenges the admission of fingerprint testimony. The State's fingerprint expert[7] testified that a thumbprint lifted from the Pontiac after the car had been abandoned belonged to the defendant. Defendant's counsel asked the witness if it were possible to determine how long the print had been on the car. The response was that it would be difficult to determine, but he could give "an educated guess." Defendant complains that the witness' testimony that the print was "fresh"from two to twenty-four hoursdid not have proper foundation. However, the following colloquy between defendant's counsel and the witness remedies any defect that might have existed regarding the testimony as to the fingerprint:
"Q (Mr. Anzalone) As an expert in a case like this, you can give a scientific opinion as to how long a print has been on a window; can you, sir?
A I cannot give a scientific time element, like minute or seconds, something of that nature. I can give you a scientific opinion whether the print was fresh or old, based on the prints I have seen in the past of similar developments."
Although the witness in response to one question stated that he could give an "educated guess" on the subject, we must examine his testimony as a whole to determine whether the witness intended to express an opinion or a judgment rather than a mere guess. Hinrichs v. Young, 403 S.W.2d 642 (Mo.1966); Denny v. Spot Martin, Inc., 328 *730 S.W.2d 399 (Mo.App.1959).[8] Although a mere guess would not constitute substantial evidence, Denny v. Spot Martin, Inc., supra, the "[u]se of `guess' is not necessarily destructive of a witness's testimony if it appears, for instance, from his whole testimony that the witness intended to express an opinion or judgment." Hinrichs v. Young, supra at 646. An examination of the witness' testimony, reveals that the witness was expressing an opinion based on his knowledge as an expert, and his testimony was therefore admissible.
The defendant further alleges that no foundation was laid concerning the fingerprint testimony. He cites a Nevada case in which it was held that in order for an expert to testify as to when fingerprints were placed on a surface, a "control" test is required. Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965). "In a `control test' a series of latent fingerprints are placed on a surface and controls are placed on all governing factors such as air, humidity, dust, and heat in order to determine how long the prints would remain on a given surface and could be dusted out." Id. at 404 P.2d 911, 914. Even if we were bound by the Nevada decision, it is distinguishable. In that case the expert was to "positively" testify as to the exact time the fingerprint was placed. The witness here made no attempt to give such a definite answer, but rather gave a broader period of time in which the prints were most likely made. Thus no control test would be necessary. This is so especially in the light of the fact that the witness testified that he was basing his answer on what he had seen in similar cases and the fact that it was stipulated that he was a fingerprint expert.[9] We hold that no error was committed by allowing the witness' answer as to the length of time the fingerprint had been on the Pontiac.
Since we find no reversible error, we affirm the defendant's conviction.
SIMEONE, P. J., concurs.
McMILLIAN, J., dissents in separate opinion.
McMILLIAN, Judge (dissenting).
I respectfully dissent. In my opinion, while New York law noted in footnote two of the majority opinion is persuasive, it is not binding where the Missouri Supreme Court has spoken on the same issue. Here, it is apparent, for whatever reason given by the majority opinion, that the second indictment was still viable at the time trial was had upon the first indictment. Consequently, in my opinion this case is controlled by State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908). Therefore, I would reverse the judgment of conviction and remand for a new trial.
NOTES
[1] State v. Granberry, 491 S.W.2d 528 (banc 1973).
[2] New York has had a superseding indictment statute virtually identical to Missouri's with the exception that the New York statute has used the term "superseded" rather than Missouri's "suspended." N.Y.Code Cr. Proc. § 292-a, 1909 (now N.Y.Crim. Proc.Law § 200.80) provided:
"If there be at any time pending against the same defendant two indictments for the same offence or two indictments for the same matter although charged as different offences, the indictment first found, shall be deemed to be superseded by such second indictment, and shall be quashed."
Despite the fact that the Missouri Supreme Court has noted that the New York statute is "stronger" than Missouri's, State v. Melvin, supra, the New York courts have given their statute a less severe interpretation. The statute is not viewed as self-executing. People v. Sloan, 175 Misc. 618, 24 N.Y.S.2d 381 (1940), and both indictments retain their vitality until the first is set aside by a court order. People v. Barry, 4 Parker Cr.R. 657, (N.Y.1860). Trial can be had on either indictment, and the defendant is free to waive the effect of the statute. People v. Benson, 208 Misc. 138, 143 N.Y.S.2d 563 (1955); People v. Sloan, supra; People v. Barry, supra. In Benson it was stated that "if the People elect without objection from the defendant to go to trial on the first indictment, the resulting verdict will not be disturbed.. . . And, while the superseding indictment is pending, a defendant may plead guilty to the first indictment. His plea of guilty constitutes a waiver of the provisions of section 292-a C.C.P. in his favor." 143 N.Y.S.2d at 574. In New York, if the instant situation existed, the indictment issue would probably be resolved by the old case of People v. Barry, supra, which is directly in point. In that case two indictments were filed, the first for a less hazardous offense than charged in the second. The defendant pled guilty to the first indictment and later moved that the conviction be quashed due to the superseding second indictment. The appellate court rejected this contention:
"From the case as it now appears, it is a legitimate conclusion that this defendant preferred a conviction by confession, on the indictment for the minor offense, in its mitigated form, to the hazard of a conviction by the jury, on the trial of the indictment for the greater offense, and acted accordingly. In my opinion, it was competent for him to waive the provision of the statute in his favor, and I think he was clearly and advisedly done so; and that after his confession, he had no right to claim the benefit of the statute which he so waived." 4 Parker C.R. 657, 661 (1860).
[3] The court also found the first information to be internally defective in that it failed to allege one element of the crime charged. However, the court clearly reversed the conviction on both grounds.
[4] The following excerpts from the transcript given under oath by the court and counsel, clearly establish the fact of a binding agreement upon the parties to try the case on the first indictment and of the elimination of the pendency of the second indictment, thereby properly reviving the first indictment:
"MR. WESTFALL (prosecutor): . . . [T]he State, through myself, and defendant, through Mr. Anzalone, [defendant's counsel] agreed on a continuance to a future date based on a specific commitment from the State that the State would proceed under the first indictment; that it was only one charge, Murder in the First Degree, and the State would not proceed on the second indictment, which was Count I Murder in the First Degree and Count II Robbery by means of a Dangerous and Deadly Weapon. The State made that commitment and with that commitment in mind, Mr. Anzalone agreed to the continuance. And that was the condition that he requested in order to agree to the continuance.
THE COURT: The State and Mr. Anzalone would stipulate on his agreement, or insistence, or whatever, it be tried on the single count; that that was the basis for the continuance?
MR. WESTFALL: That is my understanding, Judge. Do you agree with that, Mr. Anzalone?
MR. ANZALONE (Defendant's counsel): I agree with that completely. My position was, in fact, was that the State should be enforced to elect one of the two indictments. And my position was, it was to my client's interest to go ahead with the one count indictment. And my interpretation of the agreement with Mr. Westfall was we would agree to proceed on the first indictment and he would nol-pros the second one.
THE COURT: You felt it was to your client's interest to go to trial on the old indictment, the single count indictment and you understood and relied on the prosecutor's statement that he would nol-pros the second indictment?
MR. ANZALONE: I felt it was to my client's interest to go to trial on the one charge, rather than two. The age of the indictment didn't matter. For the record, I think I should also indicate, and Mr. Westfall will agree, prior to getting the indictment, the day before, I tried strenuously to persuade him from doing it and talk him out of it, and expressed to him the same grounds why he should not do itas in the chamberswhy he should not.
THE COURT: Namely, what were your argument? [sic]
MR. ANZALONE: Probably with the use of the testimony of a dead officer; the problem of penalizing someone for winning his appeal; probably waiting until the last minute to seek it and thereby prejudicing defendant's rights to due process.
MR. WESTFALL: I would agree that prior to seeking the two count indictment Mr. Anzalone tried to persuade me from doing that, but I went ahead and sought the second indictment. The Grand Jury indicted Mr. Granberry in two counts. Mr. Anzalone from that point encouraged me or attempted to persuade me to pursue the first indictment consisting of only one count and I agreed with him in his summation, which occurred at the time of one continuance. In effect, or actually, the State did commit itself to nol-pros the second indictment and Mr. Anzalone knew when the case went to trial it would be going on the old indictment. I will ask Mr. Anzalone if he will agree from that time, or at any time onward from the time trial commenced until its termination whether he was under any doubt under which indictment his client was being tried?
MR. ANZALONE: That's true.
MR. WESTFALL: And you, at all time, knew he was being tried under the first indictment?
MR. ANZALONE: That's true.
MR. WESTFALL: And your desire was that he be tried under the first indictment?
MR. ANZALONE: I felt it was in my client's best interest.
* * * * * *
Q (Mr. Westfall) All right. Concerning which of the two indictments Mr. Granberry was to be put to trial on, do you recall any conversation between the State and the Defendant?
A (Judge Schaaf, criminal assignment judge) Yes.
Q What were those conversations?
A The conversation was an agreement, as I understood it to be, was that he would go to trial on the old one, that indictment, the one I tried him on some three, four or five years before that.
Q Was it your understanding it was the defendant's desire to go to trial under that one, rather than the new one?
A Yes, it was.
Q Was it your understanding the State, in fact, agreed to go to trial under the old indictment?
A You did agree to do it because I told you I thought it would not be fair, after this length of time, it wouldn't be fair to send Mr. Granberry out on the new indictment where he was now charged with armed robbery, and Mr. Anzalone and the Public Defender, and you, and someone else in the Prosecuting Attorney's office, I know but the name slips my mind, discussed the case and it was vehemently discussed. And I finally took the position of Mr. Shaw [public defender] and Mr. Anzalone that it would be unfair, at this late trying of the case, to send out the new indictment, the new case and that we would try the old case.
Q Did the State agree?
A The State agreed." (Emphasis added.)
[5] Our conclusions regarding the admissibility of Reinert's testimony comport with the recent decisions of the U.S. Court of Appeals, 8th Circuit, in U. S. v. Calvert, 523 F.2d 895 (8th Cir. 1975) and U. S. v. Conley, 523 F.2d 650 (8th Cir. 1975). In U. S. v. Conley, supra, the court pointed out that the government was entitled to anticipate the defendant's obvious defense (here, the alibi), and since the government was faced with a difficult means of proof (in this case the fact that the key identification witness, Officer Steinmeyer, had died), the government was permitted to present evidence of other crimes. In U. S. v. Calvert, supra, it was held that probative evidence of other crimes outweighed any prejudicial effect to defendant; so, too, here.
[6] In U. S. v. Stratton, 453 F.2d 36 (8th Cir. 1972), cert. den. 405 U.S. 1069, 92 S. Ct. 1515, 31 L. Ed. 2d 800 (1972), it was said, l.c. 37:
"We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause. The arresting officer himself need not possess all of the available information." See also U. S. v. Heisman, 503 F.2d 1284 (8th Cir. 1974).
[7] Defendant's counsel stipulated that the witness was a fingerprint expert, and the witness had, in fact, extensive training in detection and comparison of fingerprints.
[8] Although the cases cited are civil cases, "[t]he rules governing opinion and expert testimony are the same in criminal cases as in civil." State v. Maxie, 513 S.W.2d 338, 344 (Mo.1974).
[9] The witness did relate in considerable detail his training and the methods used for lifting and comparing fingerprints. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376371/ | 785 A.2d 536 (2001)
STATE
v.
Joseph FILLION.
No. 00-456-C.A.
Supreme Court of Rhode Island.
November 28, 2001.
*537 *538 Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Jane M. McSoley, Aaron L. Weisman, Stacety Pires Veroni, Providence, for Plaintiff.
Andrew H. Berg, James P. Howe, Providence, for Defendant.
OPINION
PER CURIAM.
The defendant, Joseph Fillion, appeals from his Superior Court judgments of conviction on three counts of domestic simple assault, one count of domestic disorderly conduct, one count of simple assault, and one count of violating a domestic no-contact order.
In January 2000, Fillion was charged by indictment with six counts of domestic simple assault, one count of domestic assault with a dangerous weapon, one count of domestic disorderly conduct, and one count of simple assault. Fillion previously had been charged by information with three counts of disorderly conduct and by another information with stalking and violating a no-contact order. The stalking charge was dismissed, and the remaining charges against Fillion were consolidated for trial over his objection.
This case came before a single justice of this Court, who directed the parties to show cause why this appeal should not be summarily decided. After hearing their arguments and considering their legal memoranda, we conclude that cause has not been shown and proceed to summarily decide the appeal.
The complaining witness, Tori-Lynn Heaton-Fillion, began dating Fillion in July 1997 while both were working for the Cranston police department. They moved in together in November 1997 and were married on July 6, 1998. Ms. Heaton characterized her premarital relationship with Fillion as "volatile," and at trial she described numerous events on various dates, both before and after they were married, which form the basis of the charges against Fillion.
Fillion raises three issues on appeal. First, he argues that the trial justice erred in refusing to allow cross-examination of Ms. Heaton concerning her potential plans to write a book about her experiences, her offer to appear on a television newsmagazine, and her request for alimony in her pending divorce proceeding. Second, Fillion contends that the trial justice improperly excluded evidence of Ms. Heaton's previous relationship with another member of the Cranston police department. Third, Fillion asserts that he was irreparably *539 prejudiced by the consolidation of the criminal counts against him for trial.
I. Cross-Examination of Ms. Heaton
Before trial, the state filed a motion in limine to preclude the admission into evidence of notes prepared by Ms. Heaton's therapist during the course of her treatment. The notes, which were prepared after all charges had been brought against Fillion, indicate that Ms. Heaton spoke of plans to write about her experiences with Fillion as well as being contacted by the producers of 48 Hours, a television newsmagazine. The court granted the motion to exclude this evidence.
Defense counsel, intending to show a financial motive for Ms. Heaton's testimony, attempted at trial to solicit this information during his cross-examination of her. The state objected to this questioning, and the trial justice sustained the objection.
Defense counsel again attempted to show Ms. Heaton's financial motive for making her complaints by asking Ms. Heaton whether she proposed the sum of $30,000 to settle her then pending divorce proceeding against Fillion in Family Court. The state objected to this, and the trial justice again sustained the objection, finding the Family Court proceedings not relevant to the criminal charges against Fillion.
Fillion argues that the trial justice's rulings restricted his cross-examination of Ms. Heaton and violated his fundamental right to confront witnesses against him. This right is guaranteed by the Sixth Amendment to the United States Constitution and article 1, section 10, of the Rhode Island Constitution. State v. Bustamante, 756 A.2d 758, 765 (R.I.2000) (citing State v. Wiley, 676 A.2d 321, 324 (R.I.1996)). The permissible scope of cross-examination includes questions that tend to establish the witness's bias or motive, and this Court is "especially solicitous of cross-examination for bias or motive on the part of a defendant's primary accuser." State v. Olsen, 610 A.2d 1099, 1101 (R.I.1992) (quoting State v. Beaumier, 480 A.2d 1367, 1372 (R.I.1984)). The scope of cross-examination for the purpose of impeaching a witness's credibility is not unlimited, however, and it is permissible for a trial justice to reject evidence that is either not relevant or "not probative of any bias or motive." State v. Texter, 594 A.2d 376, 377 (R.I.1991) (citing State v. Veluzat, 578 A.2d 93, 95 (R.I.1990)).
This Court has noted that the denial of an opportunity to cross-examine an adverse witness "does not fall into the category of constitutional errors that are automatically deemed prejudicial." State v. Canning, 541 A.2d 457, 461 (R.I.1988) (citing Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S. Ct. 1431, 1437, 89 L. Ed. 2d 674, 685 (1986)). If the error is harmless beyond a reasonable doubt, the conviction need not be set aside. Id. (citing Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 3105, 92 L. Ed. 2d 460, 469 (1986)). To determine if an error is harmless, the Court will consider the following factors: (1) the importance of the witness's testimony to the prosecution's case; (2) "whether the testimony was cumulative"; (3) the presence or absence of corroborating or contradictory evidence; (4) "the extent of cross-examination otherwise permitted"; and (5) "the overall strength of the prosecution's case." Bustamante, 756 A.2d at 766 (quoting Texter, 594 A.2d at 378).
Although Ms. Heaton's testimony was central to the prosecution's case, the inculpatory evidence elicited at trial, which included both testimonial as well as exhibit form of evidence, was more than sufficient to sustain Fillion's conviction. Even were *540 we to assume, arguendo, that the trial justice erred in preventing defendant from cross-examining his accuser on these subjects, it stretches credulity to believe that the jurors would have considered Ms. Heaton's testimony differently had they heard evidence of the possibility of Ms. Heaton's writing a book, appearing on a television program, or requesting alimony. The fact that Fillion was acquitted of seven of the thirteen charges against him indicates to us that the trial jury took a discerning view of Ms. Heaton's testimony. The record also demonstrates to us that defense counsel was permitted to conduct an exhaustive and thorough cross-examination of Ms. Heaton. Thus, any impropriety that may have resulted from the trial justice's alleged restriction of cross-examination was harmless beyond a reasonable doubt.
II. Ms. Heaton's Previous Relationship
Fillion next contends that the trial justice erred in granting the state's motion in limine to exclude evidence of Ms. Heaton's previous relationship with a member of the Cranston police department, Edward Evans, and the violence that allegedly occurred during that relationship. Fillion asserts that this evidence would have refuted Ms. Heaton's assertion that she did not report Fillion's abuse because she did not recognize that the relationship was abusive. Ms. Heaton gave various responses at trial for not reporting the acts of abuse by Fillion, ranging from her disbelief of the threats made by Fillion to her fear that Fillion would be dismissed from his employment as an officer in the Cranston police department.
Fillion contends that had he been permitted to call Evans as a witness, his testimony, if permitted, would have disclosed that Evans dated Ms. Heaton in 1993 or 1994, that she attacked and injured him, and that he reported the attack to the Cranston police department. The trial justice indicated that this evidence, which predated the events charged in the instant case by three years and which failed to prompt any charges being brought against Evans or Ms. Heaton, simply would amount to character evidence. He concluded that such testimony concerning Ms. Heaton's relationship with Evans was "totally irrelevant" with regard to the conduct of the parties that was the subject matter in the present case.
Fillion contends here that the evidence about Ms. Heaton's relationship with Evans would have been relevant and admissible to show Ms. Heaton's propensity toward violence and would serve to substantiate Fillion's claim of self-defense. Fillion relies on this Court's holding that a defendant who asserts the defense of self-defense may adduce relevant evidence of specific violent acts perpetrated by the victim against third parties, provided that the defendant was aware of these acts at the time of his encounter with the victim. State v. Tribble, 428 A.2d 1079, 1085 (R.I.1981). Under Tribble, however, a proper foundation must first be established before such evidence will be admitted to showthe victim's previous violent tendencies, id., and the defendant, to have that evidence admitted, must prove that he was aware of the events, that the events were not remote in time, and that the events were of such a quality as to be capable of contributing to the defendant's fear of the victim. Id. Whether that proper and required foundation has been laid is left to the sound discretion of the trial justice. Id. at 1086 (citing Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748, 752 (1971)).
In this case Fillion testified, without the jury present, that he was aware of a relationship between Ms. Heaton and Evans *541 and that, while he was on patrol one evening in 1994, he heard a dispatch call about a domestic disturbance at Evans's home. Fillion testified that he spoke with the officer who responded to the call and who filed a report thereon and that the officer told him that Ms. Heaton had assaulted Evans. Fillion admitted, however, that he had no firsthand knowledge of what actually had occurred between Ms. Heaton and Evans on that particular occasion in 1994.
We have long acknowledged the trial justice's duty to determine whether evidence sought to be admitted is relevant for the purpose for which it is offered. State v. Cote, 691 A.2d 537, 543 (R.I. 1997). We have likewise acknowledged that questions pertaining to the relevance of evidence sought to be admitted also are left to the sound discretion of the trial justice, and this Court will not disturb a trial justice's ruling absent a showing of an abuse of discretion. Id.
In this case, the trial justice determined that the evidence Fillion sought to have admitted concerning the relationship between Ms. Heaton and Evans was not relevant to the issues present in the trial before him. He noted that the alleged incident occurred some three years before Fillion and Ms. Heaton began dating, and some four years before they were married. He also noted that Fillion did not witness the alleged incident between Evans and Ms. Heaton nor have firsthand knowledge of the incident. Additionally, Fillion later dated and married Ms. Heaton with whatever knowledge he had ofthe alleged incident, which indicated that he was not in fear of her. We are satisfied that the trial justice did not abuse his discretion in excluding the evidence of Ms. Heaton's previous relationship with Evans.
III. Consolidation of Criminal Counts
The final issue raised by Fillion involves the trial justice's decision to consolidate the charges made against him in an indictment and in two separate informations to be tried together in one trial. Before trial, the state moved to consolidate the two informations and the indictment returned in the instant case. The trial justice granted the motion over Fillion's objection. Fillion argues that he was prejudiced by this consolidation because he did not want to testify in his own defense against certain charges, and he specifically points to the charge of violating a no-contact order. He argues that during cross-examination he was forced to admit contacting Ms. Heaton after the no-contact order had been issued.
The question of joinder and severance of multiple charges against a particular defendant lies within the sound discretion of the trial justice, and we will not disturb his or her decision on appeal absent the showing of a clear abuse of discretion. State v. Evans, 742 A.2d 715, 718 (R.I.1999); State v. Raymond, 446 A.2d 743, 744 (R.I.1982). Joinder is appropriate if the offenses charged "could have been joined in a single indictment, information, or complaint." Super.R.Crim.P. 13. "Two or more offenses may be charged [together] * * * if [they] * * * are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Super.R.Crim.P. 8(a). See also State v. Cline, 122 R.I. 297, 327-33, 405 A.2d 1192, 1208-11 (1979). In this case, the various charges against Fillion contained in the indictment and the two informations were of a similar character and involved a series of connected events that allegedly occurred during the hectic relationship between Fillion and Ms. Heaton.
Fillion argues that joinder of the charges prejudiced his right to a fair trial *542 on the charge of violating the no-contact order. He maintains that the record is clear about the prejudicial effect of joinder because of his contention that he did not intend to testify in defense of that charge. This Court has held that a vague and indefinite assertion such as made here by Fillion does not rise to the level of prejudice necessary to establish an abuse of discretion on the part of a trial justice in refusing severance under Rule 14 of the Superior Court Rules of Criminal Procedure or its federal counterpart. State v. Lassor, 555 A.2d 339, 347 (R.I.1989); State v. Sharbuno, 120 R.I. 714, 717, 390 A.2d 915, 917 (1978).[1]
Had Fillion not admitted on cross-examination to violating the no-contact order, there was more than sufficient evidence from the various trial witnesses to permit the jury to find beyond a reasonable doubt that he had done so. That evidence included Ms. Heaton's testimony that Fillion called her on July 23, 1999, after the no-contact order had been issued earlier that day; the videotape of Ms. Heaton's call log from her answering machine, which was connected to her computer; the audio recording of the call; and the witness who testified he was with Ms. Heaton when Fillion called and recognized Fillion's voice and that when he called the number left on the answering machine, Fillion answered the telephone. Fillion's testimony admitting to violating the no-contact order was cumulative, and the joinder of the no-contact order charge with the other related charges caused him no prejudice. As was aptly noted in Cline, "[w]e know of no doctrine in the law that is designed to insulate defendantfrom relevant truths, even if such truths might lead the jury to draw less favorable inferences concerning defendant than if they were not exposed." Cline, 122 R.I. at 331, 405 A.2d at 1210.
For the foregoing reasons, the defendant's appeal is denied and dismissed. His judgments of conviction are affirmed, and the papers of this case are remanded to the Superior Court.
NOTES
[1] We held in State v. Sharbuno, 120 R.I. 714, 719, 390 A.2d 915, 918 (1978), that a defendant's right to a fair trial is not prejudiced by joinder of charges against him if "the outcome would have been the same had separate trials been held." It is clear to us from the record before us that a separate trial on the violation of the no-contact order made against Fillion would not have had a different result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376465/ | 943 F. Supp. 192 (1996)
Vito VITONE, Plaintiff,
v.
METROPOLITAN LIFE INSURANCE COMPANY and John Does 1-5, Defendants.
C.A. No. 95-0367L.
United States District Court, D. Rhode Island.
October 17, 1996.
*193 John A. Tarantino, Adler, Pollock & Sheehan, Inc., Providence, RI, for Plaintiff.
Matthew F. Medeiros, Flanders & Medeiros, Providence, RI, Claire P. Gutekunst, Michael H. Roffer, David Goldblatt, Nancy Kilson, Allen I. Fagin, Proskauer, Rose, Goetz & Mendelsohn, New York City, for Defendants.
MEMORANDUM AND ORDER
LAGUEUX, Chief Judge.
This case involves a dispute arising out of the employment relationship between plaintiff Vito Vitone and Metropolitan Life Insurance Company ("Metlife"). The matter is presently before the Court on a motion by *194 defendant Metlife to compel arbitration of the dispute and stay the action until the completion of any such arbitration. For the reasons that follow, that motion is granted. In addition, after finding that plaintiff has no standing to bring federal and state RICO claims, the Court dismisses those claims sua sponte.
I. Background
The following facts are not in dispute, unless otherwise noted. Plaintiff joined Metlife in October 1969, serving as Sales Representative, Sales Manager, District Sales Manager, Regional Sales Manager, Director of Overseas Operations, and Regional Executive at various points during his tenure. Most of the conduct that gives rise to the present dispute took place from May 1988 to July 1994, during which time plaintiff served as Metlife's Director of Overseas Operations.
The relationship between plaintiff and Metlife came to an end on October 28, 1994.[1] In July 1995, plaintiff filed the present lawsuit against Metlife and five unnamed employees, officers, and agents of Metlife (John Does 1-5) challenging the propriety of that termination and related conduct. Plaintiff contends that Metlife terminated him in retaliation for his complaints to Metlife's auditors, management, and Legal Department about compliance irregularities in the company's operations, and for his intention to report these irregularities to the appropriate state and federal regulatory authorities. Plaintiff asserts that such a termination violates the Rhode Island Whistleblowers' Protection Act.[2]
Further, plaintiff's complaint asserts claims for intentional and negligent misrepresentation, defamation/false light invasion of privacy, and federal and Rhode Island civil RICO recovery.[3] These claims present more general challenges to Metlife's conduct vis-a-vis plaintiff during the term of his employment. Specifically, plaintiff contends that he was induced to accept the Director of Overseas Operations position when he received assurances that Metlife's operations were in compliance with applicable regulatory protocols.[4] In addition, plaintiff asserts that he was made a scapegoat in Metlife's attempts to cover-up the alleged improprieties, and that statements were made by Metlife and John Does 1-5 regarding plaintiff's "poor business judgment" that damaged his future employment prospects. Finally, plaintiff claims that he was "injured in his business or property" by reason of Metlife's alleged criminal RICO violations.
Of relevance to this dispute is an arbitration agreement executed in the course of plaintiff's employment with Metlife. In 1986, plaintiff registered with the National Association of Securities Dealers, Inc. ("NASD"), of which Metlife is a member. As part of his NASD application, plaintiff completed a Uniform Application for Securities Industry Registration or Transfer, known as a "Form U-4." Paragraph 5 of the Form U-4 contains the following arbitration clause:
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, as indicated in item 10 as may be amended from time to time.[5]
Thus, plaintiff agreed to submit disputes to arbitration as required by NASD rules and *195 By-Laws; for all matters relevant to this litigation, the applicable regulations are provided by the NASD Code of Arbitration Procedures ("NASD Code").
At issue here is the extent to which the NASD Code compels arbitration of the present dispute. This question is complicated by the fact that the NASD Code was amended, effective October 1, 1993, in a manner that directly bears on this issue: language was added to the NASD Code to bring matters "arising out of the employment or termination of employment of associated person(s)" specifically within the scope of arbitrable matters.[6] The following are the relevant provisions of the NASD Code; the highlighted material was added by the 1993 amendments.
Part I, Sec. 1.
This Code of Arbitration Procedure is, prescribed ... for the arbitration of any dispute, claim or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of employment of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members;
(2) between or among members and associated persons;
(3) between or among members or associated persons and public customers, or others; and
(4) between or among members, registered clearing agencies with which the Association has entered into an [arbitration] agreement....
Part II, Sec. 8(a).
Any dispute, claim, or controversy eligible for arbitration under Part I of this Code between or among members and/or associated persons, and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), or arising out of the employment or termination of employment of such associated person(s) with such member, shall be arbitrated under this Code, at the instance of:
(1) a member against another member;
(2) a member against a person associated with a member or a person associated with a member against a member; and
(3) a person associated with a member against a person associated with a member.
Contending that the present dispute is within the scope of arbitrable matters under these provisions of the NASD Code, Metlife filed a motion to compel arbitration and to stay this action pending the completion of any court-ordered arbitration. After hearing arguments of counsel, the Court took the matter under advisement. The matter is now in order for decision.
II. Discussion
The Court approaches the present matter with a healthy regard for the strong congressional and jurisprudential mandate favoring arbitration. Section 2 of the Federal Arbitration Act provides that written arbitration provisions within contracts involving commerce are valid and enforceable. 9 U.S.C. § 2 (1994). Section 3 of the same Act specifies that a court "shall ... stay the trial of the action until such arbitration has been had," if it finds that the subject matter of the litigation is within the scope of a particular arbitration agreement. 9 U.S.C. § 3 (1994). The Supreme Court has noted that this provision "leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S. Ct. 1238, 1241, 84 L. Ed. 2d 158 (1985) (emphasis in original). This "liberal federal policy favoring arbitration agreements" is so strong that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Memorial Hosp. v. *196 Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983).
In this light, the Court should have little difficulty finding that the present dispute is within the scope of arbitrable matters under the NASD Code, as amended in 1993. Indeed, the language of the NASD Code seems to give a fairly unambiguous answer to the question of arbitrability in this case. The dispute primarily concerns plaintiff's employment at and termination from Metlife. First, plaintiff's termination from Metlife is the springboard for the whistleblowing, breach of agreement, and civil RICO claims. Moreover, the misrepresentation, false pretenses, and defamation claims all stem from conduct that took place in the course of the employment relationship between plaintiff and Metlife. There would appear to be little need, therefore, to resort to a policy in favor of arbitration the dispute clearly comes within the "arising out of the employment or termination" language of the NASD Code.
Faced with this conclusion, plaintiff advances two arguments to support his contention that the present dispute is not subject to arbitration under the NASD Code: (1) the 1993 amendments are inapplicable to this case, since plaintiff executed his Form U-4 prior to these amendments; and, (2) the insurance business exception of section 8 of the NASD Code applies to remove this dispute from arbitration. The Court considers each of these arguments in turn.
A. Applicability of 1993 NASD Code Amendments
As set forth above, the 1993 amendments to the NASD Code added language to sections 1 and 8 which clearly indicates that employment and termination disputes fall within the scope of NASD arbitration. Plaintiff notes that at the time he executed his Form U-4 the NASD Code did not contain such language, and thus contends that the amendments should not be applied retroactively to bring the dispute between himself and Metlife within the scope of arbitrable matters.
The Court cannot agree with this contention. Under the terms of the Form U-4 signed by plaintiff, he was bound to accept and comply with any changes in NASD regulations, including changes in the NASD Code. Paragraph 2 of plaintiff's Form U-4 reads as follows:
I hereby apply for registration with the organizations and states indicated in Item 10 as may be amended from time to time ... and hereby certify that I agree to abide by, comply with, and adhere to all the provisions, conditions and covenants of the statutes, constitutions, certificates of incorporation, by-laws and rules and regulations of the states and organizations as they are and may be adopted, changed or amended from time to time. (emphasis added).
No matter how clever a grammatical argument plaintiff might offer,[7] the effect of this language is inescapable: amendments to the NASD Code are incorporated as part and parcel of plaintiff's agreement with his employer and NASD.
Nonetheless, plaintiff asserts that the amendments should not be applied retroactively to cover the present dispute. Plaintiff draws on the Seventh Circuit's decision in Kresock v. Bankers Trust Co., 21 F.3d 176 (7th Cir.1994), for primary support. In Kresock, a Title VII employment discrimination case, the Court held that it would not apply the 1993 amendments retroactively where the "relevant conduct took place long before these amendments to the [NASD Code] became effective." Id. at 178-79. While the Court did not specifically state what the "relevant *197 conduct" was, it did note all conduct that could possibly be relevant the execution of Form U-4, the discharge, and the filing of the lawsuit took place prior to the effective date of the amendments. See id. at 179. The Court stressed the undesirable incentives that an alternative holding would create: "after commencement of litigation, an organization such as the NASD could simply amend its rules to force one or both parties to do something (like arbitrate) that one or both never agreed to do. Such a situation is unacceptable." Id.
The district courts that have considered Kresock have concluded that the "relevant conduct" cited by the Seventh Circuit is the filing of the lawsuit. See In re Prudential Ins. Co. of Am. Sales Practices Litig., 924 F. Supp. 627, 636-39 (D.N.J.1996); Wojcik v. Aetna Life Ins. and Annuity Co. (Wojcik I), 901 F. Supp. 1282, 1287-88 (N.D.Ill.1995). Focusing on the "incentives" rationale, those courts have concluded that Kresock was primarily concerned with preventing the application of the amendments to a dispute where a lawsuit has already been filed. Therefore, said courts have applied the 1993 amendments to claims filed after the effective date of the amendments, regardless of when the Form U-4 was executed. See In re Prudential, 924 F.Supp. at 638; Wojcik I, 901 F.Supp. at 1288-89; see also Pitter v. Prudential Life Ins. Co. of Am., 906 F. Supp. 130, 134 (E.D.N.Y.1995) (also holding 1993 NASD Code amendments applicable to action filed after effective date of amendments).
Finding the reasoning of those cases persuasive, the Court agrees that the 1993 amendments to the NASD Code are applicable to claims filed after the effective date of the amendments, regardless of when the Form U-4 was executed. Such is the case here, as plaintiff filed his claim almost two years after the effective date of the amendments. When he filed this claim, plaintiff should have been fully aware of the set of rules governing his employment-related dispute; in such a case, the Court cannot conclude that Metlife (or NASD) unfairly changed the rules in the middle of the game. Therefore, the Court concludes that the 1993 NASD Code amendments are applicable to the present dispute. Indeed, the fact that most of the conduct complained of here also took place after the effective date of the amendments only bolsters the Court's conclusion. See Wojcik v. Aetna Life Ins. and Annuities Co. (Wojcik II), 916 F. Supp. 729, 730-31 (N.D.Ill.1996) (clarifying previous order to note that both filing date of claim and timing of actionable conduct was relevant to finding amendments applicable).
In passing, the Court notes that this dispute most likely would have been subject to arbitration even under the NASD Code as it read at the time plaintiff executed his Form U-4. The majority of the courts applying the pre-amendment NASD Code read the relevant provisions to include employment disputes as an arbitrable matter, even though such disputes were not explicitly referenced in the NASD Code.[8]See, e.g., Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1486-88 (10th Cir.1994); Kidd v. Equitable Life Assurance Soc'y of the United States, 32 F.3d 516, 519-20 (11th Cir.1994); Association of Inv. Brokers v. S.E.C., 676 F.2d 857, 861 (D.C.Cir.1982). The circuits are not united in this conclusion, however, as the Seventh Circuit has held that the pre-amendment NASD Code did not require arbitration of employment disputes.[9]Farrand v. Lutheran Brotherhood, 993 F.2d 1253, 1254-55 (7th Cir.1993). However, because the Court finds the 1993 amendments applicable to the present case, the resolution of this issue can await another day.[10]
*198 B. The Insurance Business Exception
Plaintiff's second argument against arbitration is that even under the 1993 amendments, the present dispute falls within the "insurance business" exception to arbitrability of the NASD Code. Part I, section 1 of the NASD Code excludes from arbitration disputes "involving the insurance business of any member which is also an insurance company." Plaintiff asserts that this case falls within the exception because: (1) the questions he raised with Metlife management, for which he was allegedly fired, concerned the company's insurance practices, and (2) the state and federal RICO claims detail improprieties in Metlife's insurance business practices.
The Court does not agree with plaintiff's conclusion. As discussed earlier, the main thrust of this claim is to challenge a negative employment decision and other conduct during the employment relationship, not to examine Metlife's insurance practices. In this case, the Court would only review Metlife's insurance practices to determine how such practices, and the alleged attempts to conceal these practices, might have affected plaintiff's employment conditions and resulted in his termination. As the weight of authority has concluded, such an indirect review of a company's insurance business, sounding in the context of an employment dispute, is not enough to invoke the exception. See, e.g., Wojcik I, 901 F.Supp. at 1291-92 (exception not applicable where claims arise from wrongful conduct directed at employee, not insurance aspect of employer's business); Prudential Ins. Co. of Am. v. Shammas, 865 F. Supp. 429, 432-33 (W.D.Mich.1993) (exception not applicable where employment discrimination and retaliation claims had nothing specifically to do with insurance business practices).
The Court takes note of a recent case invoking the insurance business exception, In re Prudential Ins. Co. of Am. Sales Practices Litig., 924 F. Supp. 627 (D.N.J.1996). At issue there were claims "more intricately connected with the allegedly fraudulent and illegal character of Prudential's business practices than are claims in ordinary employment disputes." Id. at 640. Under such "unique circumstances", the fact-finder would have been required "to engage in the comprehensive evaluation of Prudential's insurance practices" in order to resolve the employment claims. Id. at 460-61. Because of this need to evaluate the defendant's business practices, the Court found that this was not a simple employment case, but instead a "dispute involving the insurance business" of defendant and thus outside the scope of NASD arbitration. Id. at 461-62.
According to the In re Prudential Court, the distinguishing feature of the case was the need to engage in a comprehensive review of the defendant's insurance business in order to resolve the employment claims. Id. Unlike In re Prudential, the Wojcik and Shammas claims did not require such a review, as the employment claims there could survive absent independent proof of a violation of insurance regulations. See also Trumbetta v. Metropolitan Life Ins. Co., 1994 WL 481152, at *3 n. 3 (E.D.Pa. Sept. 1, 1994) ("[W]hether or not the defendants actually engaged in any unlawful insurance practices is irrelevant to this dispute.").
While the Court finds the reasoning of In re Prudential of academic interest, that does not change the outcome of the present case. No "comprehensive evaluation" of Metlife's insurance business will be required to resolve most of the claims at issue here, as plaintiff need not prove the illegality of Metlife's insurance practices in order to succeed. To wit, even if Metlife were to be cleared of all charges of impropriety in its insurance business, the main thrust of plaintiff's complaint his retaliatory discharge claim would survive that determination. The same holds true of plaintiff's other employment-related claims. Since no "comprehensive evaluation" of Metlife's insurance practices will be undertaken to resolve this case, the *199 business insurance exception is inapplicable to these claims.[11]
The RICO portion of plaintiff's claim does raise an issue under this analysis, however. The civil RICO claims may well require the fact-finder to engage in a plenary review of Metlife's insurance practices, because in order to make out a civil RICO claim, plaintiff must first show an underlying criminal RICO offense. See Nodine v. Textron, Inc., 819 F.2d 347, 348-49 (1st Cir. 1987). In other words, in order to resolve plaintiff's RICO claims, the Court would have to review Metlife's insurance practices in detail to determine whether an underlying offense has occurred the type of "comprehensive evaluation" envisioned by In re Prudential. Therefore, plaintiff's RICO claims will be analyzed now.
The Civil RICO Claims
As noted above, civil RICO claims might in some instances trigger the insurance business exception of the NASD Code. The Court need not make such a determination in this case, however, because an examination of plaintiff's RICO claims reveals that he lacks standing to bring such claims on the facts as presented in the complaint. Accordingly, the Court will dismiss plaintiff's federal and state RICO claims sua sponte.
18 U.S.C. § 1964(c) provides a private cause of action for treble damages and attorneys' fees to "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter." As the First Circuit has recognized, recovery under this section requires: (1) injury to business or property; (2) a violation of § 1962; and (3) that the violation caused the injury. See Nodine, 819 F.2d at 348. The focus here is on the third prong of this test, causation. The Supreme Court has framed the question of causation as one of standing: under § 1964(c), a plaintiff "only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985). Thus, section 1964(c) provides no cause of action to individuals injured by acts other than criminal RICO violations. See Nodine, 819 F.2d at 349.
For his civil RICO claims, both state and federal, plaintiff asserts his termination and subsequent difficulty in finding employment as his injuries. Such injuries are considered injury to "business or property" under § 1964(c). Id. at 348. As for causation, plaintiff broadly claims that these injuries resulted from Metlife's RICO violations; the alleged indictable offenses are mail and wire fraud,[12] transportation of moneys taken by fraud,[13] and receipt of unlawfully taken money.[14]
A closer examination of the case, however, reveals that none of these alleged offenses could have caused plaintiff's injury. Plaintiff contends that he was terminated for reporting questionable practices to management, not because of the offenses themselves. Similarly, any damage to plaintiff's reputation and business prospects was caused by statements made by Metlife regarding his termination, not the alleged mail or wire fraud, or the receipt of unlawfully taken money. Because plaintiff was not "injured in his business or property by the conduct constituting the violation," he lacks standing to bring a civil RICO claim. Compare Morast v. Lance, 807 F.2d 926, 932-33 (11th Cir.1987) (employee terminated for reporting banking irregularities lacks standing under civil *200 RICO because firing "did not flow directly from the predicate acts").
This conclusion is compelled by the First Circuit's decision in Nodine, which presented almost identical facts. In Nodine, the plaintiff discovered that his employer routinely violated Canadian customs laws and had engaged in various acts to cover up this conduct. Nodine, 819 F.2d at 347-48. When the plaintiff reported these violations to his superiors and then to the employer's legal department, he was discharged. Id. He then brought a civil RICO action under § 1964(c), alleging the predicate RICO offenses of mail and wire fraud, obstruction of justice, obstruction of a criminal investigation, and interference with commerce. Id. at 349. The First Circuit affirmed the dismissal of the complaint, finding that the injury, the discharge from employment, was caused by the employer's retaliation, not the predicate offenses. According to the Court: "Firing Nodine under these circumstances was wrong, but it did not violate the RICO Act." Id.
The same holds true in the present case, where plaintiff's injuries were caused by the Metlife's alleged conduct towards him, not the predicate RICO offenses. As the First Circuit stated in Nodine, such conduct might be "wrong" indeed, it may be the basis for a successful whistleblowing claim. However, the conduct does not make out a RICO claim. Plaintiff was not injured by the conduct constituting the alleged RICO violation, and thus he lacks standing to bring such a claim.
This causation analysis applies with equal force to defeat plaintiff's claim under the state RICO statute. As with federal RICO, Rhode Island's RICO law provides civil recovery for any person "injured in his or her business or property by reason of" a predicate criminal RICO offense. R.I.Gen. Laws § 7-15-4(c) (1992). This provision presents the same requirements as does its federal counterpart, and requires a similar analysis. See Martin v. Fleet Nat'l Bank, 676 F. Supp. 423, 432 (D.R.I.1987) (using same analysis for federal and state civil RICO claims). For the state claim, the predicate offenses alleged are obtaining money and plaintiff's services by false pretenses a larceny.[15] The injuries alleged are the same as in the federal claim: plaintiff's termination and damage to his reputation and future business prospects. As with the federal claims, the injuries are unconnected to the alleged predicate criminal RICO offenses the injuries flow from the termination and the "fallout" from that termination, not the alleged criminal conduct. Therefore, there is no standing to bring a Rhode Island RICO claim.
Because the injuries complained of do not flow from the alleged predicate RICO criminal offenses, the Court concludes that plaintiff lacks standing to bring these civil RICO claims. As it appears beyond doubt from the pleadings that plaintiff can prove no set of facts which would support a claim for civil RICO recovery, the Court dismisses plaintiff's RICO claims, under both federal and state law, sua sponte.
C. Claims Against John Doe Defendants
Plaintiff's final argument opposing the motion to compel arbitration and stay the action concerns the claims against John Does 1-5.[16] Plaintiff suggests that because the John Doe defendants remain unidentified, the claims against them are not subject to arbitration under the NASD Code.[17]
The Court will not consider the arbitrability of the claims against John Does 1-5 at this *201 time. At present, the only matter before this Court is the dispute between plaintiff and Metlife, as Metlife was the only entity served as a defendant in this matter. The John Doe defendants are unidentified and unserved; therefore, they are not yet parties to the action. See Nagle v. Lee, 807 F.2d 435, 440 (5th Cir.1987) ("the mere naming of a person through use of a fictitious name does not make that person a party absent voluntary appearance or proper service of process."); Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468, 1471 (11th Cir.1986) (defining party status to require either voluntary appearance or service); In re Library Editions of Children's Books, 299 F. Supp. 1139, 1142 (J.P.M.L.1969) (same); see also 67A C.J.S. Parties § 3 (1978). It would be improper for this Court to resolve issues concerning the arbitrability of claims against persons that are not yet part of this case.
If the identities of the John Doe defendants are discovered during the preparation for, or during the conduct of, the arbitration proceedings between plaintiff and Metlife, of course, they can be served. The Court will then entertain any motions concerning those claims. Until the John Does are served they are not parties to this case and any alleged claims against them will not be considered by the Court.
III. Conclusion
For the foregoing reasons, the Court grants Metlife's motion to compel arbitration of the dispute between plaintiff and Metlife, pursuant to the written agreement of the parties. In addition, plaintiff's federal and state RICO claims are dismissed sua sponte. If plaintiff believes that he can show cause why the RICO counts should not be dismissed, he can file a motion for reconsideration with an accompanying memorandum within 20 days of the date hereof. If such a motion is filed, defendant will have 20 days to file an objection thereto with an accompanying memorandum. Then, the Court will set the matter down for hearing.
Accordingly, all further proceedings in this matter (except a motion for reconsideration) are stayed until the completion of arbitration, as required by the Federal Arbitration Act, 9 U.S.C. § 3 (1994).
It is so ordered.
NOTES
[1] According to the allegations in the complaint, in an October 1994 meeting plaintiff was informed that he could either accept a demotion to a sales position or face termination. Plaintiff characterizes this communication as a constructive termination, while Metlife claims that plaintiff chose to end the relationship voluntarily.
[2] The specific sections on which plaintiff bases this claim, R.I.Gen.Laws § 36-15-1 et seq. (1990), were repealed effective July 5, 1995; these were replaced with similar provisions at R.I.Gen.Laws § 28-50-1 et seq. (1995). In addition, plaintiff challenges his termination as a breach of his employment agreement with Metlife.
[3] 18 U.S.C. § 1964(c) (1994); R.I.Gen.Laws § 7-15-4(c) (1992).
[4] Plaintiff also asserts that this conduct amounts to obtaining plaintiff's services by false pretenses, a criminal violation for which R.I.Gen.Laws § 9-1-2 (1985) provides a civil recovery.
[5] The NASD was the only organization listed in Item 10 of plaintiff's Form U-4 and Metlife was listed as plaintiff's "firm."
[6] When plaintiff's application for NASD registration was accepted, he became an "associated person" under the meaning of the NASD Code.
[7] Plaintiff argues that the "as amended" clause only modifies Item 10 of Form U-4 the list of organizations with which plaintiff has registered. Under this reading, plaintiff would be bound by the regulations of any additional organizations, but not new rules of organizations of which he is already a member. The argument is flawed in two respects: first, plaintiff focuses on the wrong paragraph of Form U-4 by discussing the "as amended" clause of paragraph 5 instead of paragraph 2. Even accepting plaintiff's argument regarding the construction of paragraph 5, this does not resolve the issue regarding the relevant section of Form U-4. Second, assuming plaintiff simply confused the paragraph numbers, the argument still fails. There are two "as amended" clauses in paragraph 2: one clearly refers to Item 10, while the second just as clearly refers to each organization's rules and regulations.
[8] The history of the amendments supports this position, as it suggests that the changes were intended only to clarify ambiguities in the NASD Code language, not to expand the scope of arbitrable matters. See 58 Fed.Reg. 39070, 39071 (1993) ("The NASD has taken the position that employment disputes are arbitrable under Section 8, but in order to clear up any ambiguity, it is proposing the changes.").
[9] The Ninth Circuit, while not expressly deciding the matter, has also suggested its willingness to join the Seventh Circuit in this conclusion. See Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1305 (9th Cir.1994), cert. denied, ___ U.S. ___, 116 S. Ct. 61, 133 L. Ed. 2d 24 (1995).
[10] The Court does note, however, that the Farrand decision has been widely criticized. See, e.g., Kidd, 32 F.3d at 519 n. 6 (Farrand disregards Supreme Court's directive to resolve ambiguities in favor of arbitrability); The 'Strappes Group, Inc. v. Siedle, 1993 WL 443926, at *4 (D.Mass. Nov. 22, 1993) (Farrand creates "irreconcilable conflict" between sections 1 and 8 of NASD Code).
[11] The only employment-related claims that give the Court some pause under this analysis are the misrepresentation claims. There, plaintiff alleges that he took a different position at Metlife in reliance on allegedly untrue statements about the company's compliance with regulatory statutes. While this claim might require the fact-finder to ask some questions about Metlife's compliance, this would only necessitate a cursory review of such practices, not the "comprehensive evaluation" required in In re Prudential. Moreover, the misrepresentation claims present, at best, tangential matters, as the heart of this dispute is plaintiff's termination. In light of the federal policy in favor of arbitration, it would be improper to allow such a tangential issue to prevent a predominantly "arbitrable" dispute from reaching arbitration.
[12] 18 U.S.C. §§ 1341, 1343 (1994).
[13] 18 U.S.C. § 2314 (1994).
[14] 18 U.S.C. § 2315 (1994).
[15] Under Rhode Island law, any person who "obtain[s] from another designedly, by any false pretense or pretenses, any money, goods, wares, or other property, with intent to cheat or defraud" is guilty of larceny. R.I.Gen.Laws § 11-41-4 (1994). Larceny is one of the offenses included as "racketeering activity" under the state RICO statute, R.I.Gen.Laws § 7-15-1(c) (1992).
[16] Plaintiff raises this issue even though no motion has been made to compel the arbitration of any of the claims against the John Doe defendants.
[17] Plaintiff maintains that Part I, section 1 of the NASD Code only provides for arbitration of disputes "between or among members and associated persons." In brief, plaintiff contends that because the John Does are unidentified, they are not "associated persons" as to whom arbitration is required. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376592/ | 530 S.W.2d 123 (1975)
Joe BALLI, Appellant,
v.
The STATE of Texas, Appellee.
No. 51057.
Court of Criminal Appeals of Texas.
December 3, 1975.
*124 Van Stovall, Plainview, Court appointed, for appellant.
Marvin F. Marshall, Dist. Atty., Plainview, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal is from an order revoking probation. On April 23, 1974, the appellant *125 was found guilty by a jury of assault with intent to commit robbery upon a robbery by assault indictment. The offense apparently was committed September 22, 1973. The punishment was assessed under the new Code by the jury at ten (10) years and $1,000. See Article 12.34 (Third Degree Felony Punishment), V.T.C.A. Penal Code. The jury recommended probation, and the appellant was placed on probation for ten (10) years subject to certain probationary conditions imposed by the court, which included the requirement that he "(a) commit no offense against the laws of this State or any other State or the United States, and (b) avoid injurious or vicious habits; no use of alcohol, narcotics or dangerous drugs."
On January 2, 1975, the State filed a motion to revoke probation alleging that the appellant had violated the above described conditions by "a. On December 5, 1974 Joe Balli was arrested by the City Police in Plainview, Hale County, Texas and booked for Public Intoxication. b. Probationer did not avoid the use of alcohol and consequently was arrested for Public Intoxication."
On March 19, 1975, the court conducted a hearing on the revocation motion. The evidence established that appellant was the person placed on probation and his probationary conditions. Thomas Stephens, Municipal Court Judge, testified that the appellant had entered a plea of guilty before him to a charge of "drunkeness," on December 6, 1974, and was assessed a fine of $52.50, which the appellant laid out in jail. Neither his testimony nor the docket sheet of the Municipal Court, which was introduced, reflected the date on which the offense was alleged to have occurred.[1] Steve Holmes, city of Plainview police officer for 23 months, testified that after dark on December 5, 1974, he received information that someone was walking around some businesses on Eighth Street. In checking the area, he observed the appellant, with whom he was acquainted, walking in the middle of the eight hundred block of Denver Street. Holmes related he stopped and talked with the appellant, that his breath smelled strong of alcoholic beverage, that his speech was slurred, that he swayed noticeably, and that when he tried to walk he almost fell. Holmes expressed the opinion, based on his experience, that the appellant was intoxicated. He arrested the appellant. On cross-examination he testified that at the time he arrested the appellant the street was vacant of cars "at that moment."
At the conclusion of the hearing the trial court revoked probation, stating the evidence was insufficient to show a penal offense, but that evidence was sufficient to show the appellant did use alcohol in violation of probationary conditions. However, the written order revoking probation entered on the same date and appearing in the appellate record without objection made the findings that the appellant "violated the terms of his probation in that he committed the offense of public intoxication against the laws of the State of Texas; failed to avoid the use of intoxicating beverages (injurious habits)." The order was personally signed by the trial judge.
Although the appellant and the State both briefed this case as though the court's oral statements at the conclusion of the hearing are controlling, we conclude the written findings are, and that the evidence is sufficient to show the commission of a penal offense, to-wit: public intoxication, which was a violation of the probation conditions.
V.T.C.A. Penal Code, Section 42.08, provides in part:
"An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, *126 to the degree that he may endanger himself or another."
The evidence reflects that appellant in a state of intoxication was walking in the middle of a public street in the city of Plainview after dark, although at the moment the street was vacant. This evidence was sufficient to show a violation of said Section 42.08, supra.
Appellant urges that the officer's opinion that appellant was intoxicated should not have been considered since it was formed after the officer had stopped and detained appellant without probable cause. First, we observe that all of Officer Holmes' testimony was elicited without objection. Any error was thus waived. See Williams v. State, 372 S.W.2d 326 (Tex.Cr. App.1963).
Further, we conclude that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), cited by appellant, are contrary to his contention. In Terry the Supreme Court stated:
"... A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88 S.Ct. at 1880.
The mere brief stopping of an individual on a street for questioning to "determine his identity or to maintain the status quo momentarily while obtaining more information" is expressly countenanced by Adams, 407 U.S. at 146, 92 S. Ct. at 1923.
The information obtained after the officer approached the appellant walking in the middle of the streetthe odor of alcohol on his breath, the slurred speech, the swaying and difficulty in walking, combined to create probable cause to arrest for public intoxication. Article 14.01, Vernon's Ann.C. C.P., permits the warrantless arrest of an individual committing an offense in an officer's presence. See Chambler v. State, 416 S.W.2d 826 (Tex.Cr.App.1967); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). Appellant's contention is without merit.
There being a valid ground to justify revocation, we need not consider appellant's other contention that the evidence showed only a single use of alcohol and did not reflect an injurious or vicious habit in violation of probation.[2] See Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969); Jones v. State, 478 S.W.2d 937 (Tex.Cr.App.1972). Likewise, we need not consider whether the imposition of the probationary condition "(b) avoid injurious or vicious habits; no use of alcohol, narcotics or dangerous drugs" was proper fleshing out of statutory conditions to which the court was limited when probation is recommended by the jury. See Article 42.12, Sec. 3a, Vernon's Ann.C.C.P. See and cf. Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.1974).
There appears another reason why the revocation of probation was proper. Under the provisions of Article 42.12, supra, the jury may recommend probation where the punishment assessed is ten years or less. The punishment here assessed was ten years plus $1,000 fine. Since the punishment assessed was in excess of ten years, probation should not have been granted, despite the jury's recommendation. Since appellant was not eligible for probation in light of the punishment assessed, the court did not err in revoking probation. See Popham v. State, 154 Tex. Crim. 529, 228 S.W.2d 857 (1950); Dunn v. State, 159 Tex. Crim. 520, 265 S.W.2d 589 (1954); Cromeans v. State, 160 Tex. Crim. 135, 268 S.W.2d 133 (1954); House v. State, 166 Tex. Crim. 41, 310 S.W.2d 339 (1958); Hartley v. State, 169 Tex. Crim. 341, 334 S.W.2d 287 (1960).
The judgment is affirmed.
NOTES
[1] This type of evidence frequently causes evidentiary problems where the State relies alone upon a conviction to show the commission of a penal offense. See Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); Mason v. State, 438 S.W.2d 556 (Tex.Cr. App.1969). See also Taylor v. State, 172 Tex. Crim. 45, 353 S.W.2d 422 (1962); Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App. 1971).
[2] Appellant cited and relied upon Kubat v. State, 503 S.W.2d 258 (Tex.Cr.App.1974). See also Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Marshall v. State, 466 S.W.2d 582 (Tex.Cr.App.1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376707/ | 433 Pa. 319 (1969)
Burbage
v.
Boiler Engineering & Supply Company, Inc. (et al., Appellant).
Supreme Court of Pennsylvania.
Argued April 19, 1968.
January 24, 1969.
*320 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*321 James E. O'Neill, Jr., with him Susan P. Windle, William H. Lamb, and Rogers & O'Neill, for appellant.
Richard Reifsnyder, with him MacElree, Platt, Marrone & Harvey, for defendant, appellee.
C. Richard Morton, with him Griffith, Morton & Buckley, for plaintiff, appellee.
OPINION BY MR. JUSTICE JONES, January 24, 1969:
On September 9, 1963, while engaged in employment with Friedman and Sons, Inc., Edmund Burbage (decedent) was killed when a boiler exploded. This boiler, manufactured by Boiler Engineering and Supply Company, Inc. (Boiler), contained a valve manufactured by General Controls, Inc. (General). This valve was not part of the original boiler but was sold as a replacement unit for a boiler which was already in existence. The explosion occurred when General's valve stuck in the open position, permitting an excessive amount of fuel to enter the ignition chamber. The sticking of this valve was caused by an indentation in the face of the valve. General urges that the valve was manufactured as one with a 120 coil and was changed to one with a 220 coil, which change, allegedly, *322 took place between the time the valve left General's hands and the time it reached Friedman's hands.[1]
There is no evidence whether the valve came into the hands of Boiler directly from General or through the hands of an independent jobber and there was conflicting evidence as to when the change in the valve stamp was accomplished.
On the theory that Boiler had manufactured and sold to Friedman, Burbage's employer, the boiler which exploded, Burbage's personal representative (Burbage) instituted a suit for damages arising from decedent's death against Boiler in the Court of Common Pleas of Chester County. On the theory that General had manufactured the valve which had been incorporated into the boiler and, therefore, allegedly was responsible for the defect in the valve which caused the explosion, Boiler joined General as an additional defendant on the alternative theories that General was liable, jointly or severally, to Burbage or that, in the event Boiler was held liable, General was liable by way of indemnity to Boiler.
The case was submitted to the jury on the theory of strict liability under § 402A of the Restatement 2d, Torts. The jury returned a verdict against Boiler and in favor of Burbage in the amount of $70,000.00 and in favor of Boiler against General for indemnification in the amount of $70,000.00.
General filed motions for judgment n.o.v. or, in the alternative, a new trial. After argument, the court ordered a new trial unless Burbage filed a remittitur *323 "of record" in the amount of $1,712.40 in the wrongful death action within twenty days. No remittitur was filed within the twenty-day period but Burbage later petitioned the court to file a remittitur nunc pro tunc after receiving the amount of the verdict, as reduced by the amount of the remittitur, from Boiler. The court below discharged the rule to file the remittitur on the theory that Burbage's acceptance from Boiler of the amount of the verdict, as reduced by the remittitur, constituted a de facto acceptance of the remittitur. Thereafter, judgment was entered by Boiler against General, and from that judgment the instant appeal was taken.
Initially, General contends that since the valve was substantially changed after it left the hands of General, it cannot be held liable under § 402A of the Restatement 2d, Torts. If the valve was substantially changed after it left the hands of General, clearly General would be correct. However, under the factual posture presented in the case at bar on appeal, this rule of law is inapplicable because the jury found that there was no substantial change in the valve once it had left the hands of General.[2]
It is not the function of an appellate court to pass upon the credibility of witnesses or to act as the trier of facts, and we will not substitute our judgment for that of the fact-finding jury, if there is sufficient evidence of record to support the jury's findings of fact. Gaita v. Pamula, 385 Pa. 171, 122 A.2d 63 (1956). See also: Kalyvas v. Kalyvas, 371 Pa. 371, 89 A.2d 819 (1952); Old Furnace Coal Co. v. Wilson, 332 Pa. *324 208, 3 A.2d 336 (1938); Milford Borough v. Burnett, 288 Pa. 434, 136 A. 669 (1927). Even though we might be of the opinion that had we been the finders of fact we would have reached a contrary result, nevertheless, we will not set aside the findings of fact of a jury implicit in its verdict which are evidentiarily supported of record and where there was no abuse of discretion and where no error of law has been committed. Koch v. Imhof, 315 Pa. 145, 172 A. 672, 673 (1934); Hegarty v. Berger, 304 Pa. 221, 155 A. 484 (1931).
We have examined the present record and find that, although there was conflicting evidence as to when the defect occurred, there was ample evidence from which the jury could reasonably impose liability upon General, the manufacturer of the valve. The jury did so find upon evidence sufficient quantitatively and qualitatively and we are powerless to find to the contrary. To do otherwise would capriciously disregard the traditional function of the trier of fact.
General next contends that § 402A, supra, does not apply to component parts. Comment q to § 402A, supra, provides: ". . . Component Parts. The same problem [application of strict liability] arises in cases of the sale of a component part of a product to be assembled by another, as for example, a tire to be placed on a new automobile, a brake cylinder for the same purpose, or an instrument for the panel of an airplane. Again the question arises, whether the responsibility is not shifted to the assembler. It is no doubt to be expected that where there is no change in the component part itself but it is merely incorporated into something larger, the strict liability will be found to carry through to the ultimate user or consumer. But in the absence of a sufficient number of decisions on the matter to justify a conclusion, the Institute expresses no opinion on the matter." (Emphasis supplied)
*325 It is pertinent to note that this particular valve was found by the jury to have been sold in a defective condition and without ever having undergone any substantial change subsequent to its original manufacture. The valve itself was to be ultimately incorporated into a boiler since it had no operative significance or independent utility apart therefrom. In similar situations other jurisdictions have determined that liability will be fastened on a component-part manufacturer when there had been no change in the part after it left the factory in which it was manufactured. See: Deveny v. Rheem Manufacturing Co., 319 F.2d 124 (2d Cir. [Vt.], 1963); Putnam v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir. [Tex.], 1964). In view of the fact that the jury found no substantial change in the valve since manufacture and since it was to be merely incorporated into a larger product, we see no reason why liability should not carry through to the valve manufacturer, General, as the manufacturer of a defective component part.
General's third contention is that, even if the product was defectively manufactured, the buyer (Boiler) knew or should have known of the defect and, therefore, voluntarily and unreasonably assumed the risk of the danger. We find no merit in this contention. Comment n of § 402A, supra, explicitly states: "Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, as to guard against the possibility of its existence. On the other hand, the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and nevertheless proceeds *326 unreasonably to make use of the product and is injured by it, he is barred from recovery." There is no evidence whatsoever that Boiler did, in fact, discover the defect before proceeding to utilize and market the valve.
We also hold that Boiler did not assume the risk by using the valve because there is no reason why it should have discovered the defect. Since this particular valve was merely sold as a unit and was not affixed to the boiler prior to its being sold to decedent's employer but was sold as a replacement unit to be affixed to a boiler already in operation, we conclude that there was no reason why Boiler should be primarily liable. If such a valve was affixed prior to the entire product being sold to the purchaser, i.e., Friedman and Sons, Inc., then it might be said that the primary responsibility for the defect was shifted to the intermediate party, i.e., Boiler, since it presumably would have tested the boiler. Since that was not the situation in this case, it is necessary to conclude that the responsibility for discovery and prevention of the defect lay solely with General.
General further urges that Boiler is not entitled to indemnification from General under § 402A, supra. The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by law to an injured party. The right to indemnity enures to a person who, without active fault on his own part, has been compelled by reason of some legal obligation to pay damages occasioned by the negligence of another. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence but rather on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal *327 obligation owed by each of the wrongdoers to the injured person. Secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal obligation between the parties or arising from some positive rule of statutory or common law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Cf. Martinique Shoes v. New York Progressive Wood Heel Co., 207 Pa. Super. 404, 217 A.2d 781 (1966).
Under the strict liability theory of § 402A, Burbage could have sued General and, under the evidence presented, could have received a judgment against General. Instead, Burbage sued Boiler. It would be transparent reasoning of the highest order to conclude that recovery could not be had by Boiler from General in the nature of indemnity. Nothing Boiler did exonerated General from being primarily liable for the accident. First, Boiler had no duty to inspect which would have precluded it from recovery under the assumption of risk provision in § 402A. Second, the jury determined upon the basis of sufficient evidence that there was no substantial change in the valve subsequent to its leaving General's hands.
General next asserts that it is entitled to a new trial due to Burbage's failure to accept the remittitur within the twenty days stipulated in the court's order. All parties concede that Burbage did not file the remittitur of record in accordance with the mandate of the lower court. However, the evidence is clear that Burbage did, in fact, accept, and the original defendant Boiler did, in fact, pay, the reduced amount of the wrongful death award within the twenty day period. Since the remittitur order was in essence complied *328 with within the specified twenty days, we perceive no reason not to allow the remittitur order to be filed nunc pro tunc. In similar situations, courts have been reluctant to send the case back "after it has been tried on its merits, on nice technical objections, not in any degree affecting the merits": Jones v. Stiffler, 137 Pa. Super. 133, 138, 8 A.2d 455 (1939). See also: Motor Mortgage Corp. v. Hagerling, 106 Pa. Super. 148, 161 A. 447 (1932); Parkin v. Safe Deposit Bank, 54 Pa. Super. 54 (1913).
Judgment affirmed.
Mr. Justice MUSMANNO did not participate in the decision of this case.
NOTES
[1] General's quality assurance engineer testified that the numerals "338" were stamped on a metal nameplate on the valve; the first "3" indicated pipe size; the second "3" the part size, and the "8" the voltage; that on this valve the "338" had been stamped in larger type than the other numerals indicating the operating voltage of the coil had been changed from 120 to 220, and that General did not manufacture a valve with a 220 coil.
[2] A.W. Grosvenor, a qualified metallurgical engineer, examined the valve and expressed the opinion that the dent or indentation on the valve face which caused the explosion was in the original manufacture and that the stamping upon the face of the valve concerning the voltage had nothing to do with the explosion. Such testimony was in support of the jury's finding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2376923/ | 837 F. Supp. 916 (1993)
UNITED STATES of America
v.
Ralph C.T. FRANKLIN.
No. 93 Cr 263.
United States District Court, N.D. Illinois, E.D.
November 4, 1993.
*917 Patrick Brian Murray, Asst. U.S. Atty., Chicago, IL, for plaintiff.
Mark Hellner, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
ANN CLAIRE WILLIAMS, District Judge.
On July 16, 1993, defendant Ralph C.T. Franklin pled guilty to one count of obstruction of justice in violation of 18 U.S.C. § 1503. Franklin is to be sentenced on November 19, 1993. This matter is presently before the court on Franklin's objections to the presentence investigation report ("PSI").
Specifically, Franklin objects to the recommended enhancement of his sentence for his alleged use of a special skill in the commission of the crime. Franklin also believes he is entitled to a downward departure of two levels for his attempted assistance in an unrelated criminal investigation. Finally, Franklin urges a further departure of two levels on various equitable grounds. For the reasons stated below, the court denies defendant's objections.
Background[1]
Since his admission to the Illinois bar in May 1977 through May 1993, Franklin worked as a practicing attorney with law offices in Chicago and later, in Maywood, Illinois. According to Franklin, much of his practice was devoted to assisting poor and minority clients. (Defendant's PSI Brief at 8). Although Franklin was apparently a successful practitioner, as of spring 1991, more than six complaints concerning Franklin's handling of various trust documents and real estate transactions had been filed with the Attorney Registration and Disciplinary Committee for the Illinois Supreme Court.[2]
In April 1991, Franklin met with a new client, Samuel Gibson, to discuss the preparation and filing of a bankruptcy petition on Gibson's behalf. Gibson explained to Franklin that he had certain assets, in particular the proceeds from the recent sale of Gibson's home, which he did not want to lose as a result of the bankruptcy filing. Gibson told Franklin that he maintained some of the proceeds from the sale of his home in a certificate of deposit registered in another person's name and the remainder in a safety deposit box.
Franklin advised his new client that they could shield some of his assets from his creditors by falsely claiming that Gibson had gambled away some of the money from the sale of his home. As part of the plan, Franklin told Gibson to travel to Las Vegas or Atlantic City and obtain hotel room receipts and other documentation to make the story seem more credible. At Franklin's suggestion, Gibson and his wife travelled to Atlantic City and stayed at a hotel there for three days. Upon his return to the Chicago area, Gibson gave Franklin the receipts for the hotel and the rental car Gibson and his wife used while in Atlantic City.
In June 1991, Franklin filed Gibson's fraudulent bankruptcy petition with the U.S. Bankruptcy Court for the Northern District of Illinois. On Schedule B-2 of the petition, under the Personal Property heading, Franklin stated that the debtors, (Gibson and his wife Phyllis Gibson) had no cash reserves. On the "Statement of Financial Affairs for Debtor Not Engaged in Business" schedule, Franklin further stated that Gibson had lost approximately $100,000 gambling in Atlantic City. Franklin knew that both of these statements were false.
A month later, Franklin met again with Gibson, this time to prepare him for a Section 341 hearing with his creditors scheduled for the next day. At this point, Gibson was cooperating with the Federal Bureau of Investigation in the agency's investigation into *918 Franklin's activities.[3] During the meeting, which Gibson taped, Franklin made several incriminating statements. He first advised Gibson that Gibson's creditors were unaware of the money in Gibson's safety deposit box. Franklin then informed Gibson that the bankruptcy petition filed on his behalf did not disclose Gibson's ownership of land in Olympia Fields, Illinois. Finally, Franklin told Gibson to falsely state that he lost approximately $100,000 gambling in Atlantic City and that Gibson and his wife had no cash reserves.
Gibson's Section 341 hearing was held on August 11, 1991. Gibson was subsequently discharged in bankruptcy for having no assets. As noted above, Franklin was charged with, and on July 16, 1993 pled guilty to, one count of obstructing justice in violation of 18 U.S.C. § 1503.
Application of U.S.S.G. § 3B1.3
Section 3B1.3 of the United States Sentencing Guidelines provides for a sentencing enhancement of two levels if a defendant "abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." United States Sentencing Commission, Guidelines Manual, § 3B1.3 (Nov.1993). The enhancement does not apply where an abuse of trust or skill is included in the base offense level or specific offense characteristic. Id.
The Application Notes for 3B1.3 flesh out the key terms "position of public or private trust" and "special skill". According to the Notes, the position of trust "must have contributed in some substantial way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant's responsibility for the offense more difficult)." Id., comment. (n.1). A "special skill", the Notes explain, refers to skills that usually require "substantial education, training or licensing", skills not normally possessed by the general public. Id. comment. (n.2). Examples include skills possessed by pilots, lawyers, doctors, accountants and chemists. Id. Accord United States v. Ashman, 979 F.2d 469, 490 (7th Cir.1992).
Because he allegedly used his special skills as a licensed attorney to significantly facilitate his crime, Franklin was awarded two points under Section 3B1.3. (PSI at 2). The PSI concluded, however, that Franklin does not qualify for the two-level enhancement based on an abuse of a position of trust. Id. Franklin objects, arguing that neither rationale warrants enhancement. The government, on the other hand, believes that Franklin qualifies for the two-level enhancement on either ground.
Use of a Special Skill
Franklin opposes the enhancement for use of a special skill on two grounds: 1) no special skills were used in the commission of the crime, and 2) even if such skills were used, they did not significantly facilitate the commission or concealment of the offense. According to Franklin, his advice to his client to lie about gambling losses was a "dumb and unimaginative" ruse that any lay person could have concocted without legal assistance. (Defendant's PSI Brief at 4). This is especially true, he points out, because the preprinted bankruptcy petition forms themselves include a question about gambling losses, a fact that Franklin characterizes as a virtual "invitation" to defraud one's creditors. (Id. at 4-5). To find that Franklin used special skills in advising his client how to fraudulently avoid bankruptcy liability under these circumstances, he concludes, would penalize Franklin merely for his status as a lawyer and not for any actual skills he employed.
On October 2, 1993, the court held an evidentiary hearing on this issue. Sandra Rasnak, an Assistant United States Trustee was the only witness. The United States Trustee's office was created in 1979 to act as a watchdog agency, overseeing the work of private bankruptcy trustees and guarding against fraud in the bankruptcy process. Rasnak joined the U.S. Trustee's office in 1985 as a Senior Staff Attorney, primarily *919 responsible for overseeing the office's fraud monitoring system. During her tenure at the Trustee's office, Rasnak has personally reviewed hundreds of Chapter 7 bankruptcy petitions for fraud.
At the hearing, Rasnak identified Franklin as a "regular" at the bankruptcy court. A February 1993 United States Trustees report (Government Exhibit 2) supports this assertion, listing Franklin as the attorney of record in 29 Chapter 7 bankruptcy cases then pending in the Northern District of Illinois. Having reviewed the Gibson's Chapter 7 bankruptcy petition filed by Franklin, Rasnak testified that she believed Franklin's special expertise as a bankruptcy attorney, especially in Chapter 7 "no assets" cases, allowed him to anticipate safeguards in the U.S. Trustee's detection process and to avoid common pitfalls facing pro se petitioners unfamiliar with the U.S. Trustee's operating procedures. In particular, Rasnak noted that pro se petitioners often attempt to fraudulently shield their assets by claiming that they gave the assets away as gifts or that the assets had been lost, stolen, or destroyed. This kind of fraud, according to Rasnak, is far easier for the Trustee's office to detect than are claimed gambling losses, especially when these claimed losses are accompanied by hotel and casino receipts.
Rasnak also observed that the filing of a "no assets" petition further enhanced the scheme's likelihood of success. For "no assets" petitions, unlike other types of petitions, the trustee receives only $45 for her representation of the petitioner's creditors. According to Rasnak, Franklin ensured his client a limited review process by filing a "no assets" petition on his behalf.
Based in part on Rasnak's testimony, but also on the court's review of the briefs and the applicable case law, the court concludes that Franklin used a special skill to significantly facilitate his crime. Although the defendant's plan to defraud his client's creditors was not elaborate, it clearly was enhanced by his special knowledge of the legal process generally, and as a regular before the bankruptcy court, of bankruptcy proceedings in particular. Franklin's familiarity with the constraints on the bankruptcy's court's ability to verify claims made in bankruptcy petitions, unquestionably facilitated the scheme to defraud his client's creditors. Absent such information, Franklin could not have confidently advised his client that all he needed to document his claimed gambling losses were a couple of hotel and car rental receipts. Similarly, he would not have known that his client could claim as much as $100,000 in gambling losses without arousing undue suspicion. Finally, simply by completing other sections of his client's petition in a complete and professional manner, Franklin was able to lend an air of credibility to the petition that pro se filings often lack.
Franklin's special knowledge of bankruptcy law and the legal process in general is the direct result of his professional training and his 16 years of experience as a practicing attorney. Franklin used these skills to significantly facilitate his crime. Under Section 3B1.3 of the Sentencing Guidelines, a two-level enhancement of his sentencing level is warranted. Cf. U.S. v. White, 972 F.2d 590, 601 (5th Cir.1992) (holding enhancement under § 3B1.3 appropriate where lawyer used knowledge and skills gained as a criminal defense attorney and prosecutor to conceal drug trafficking scheme).
Abuse of a Position of Trust
Even if Franklin had not used his special skills as an attorney to significantly facilitate his crime, he would qualify for a two level enhancement for abusing a position of public trust. The Seventh Circuit recently addressed the issue of what types of occupations qualify as positions of trust under Section 3B1.3 in United States v. Lamb, 6 F.3d 415 (7th Cir.1993). Although the court did not resolve the specific issue of whether and under what circumstances an attorney occupies a position of trust, the opinion is nevertheless instructive.
According to the court in Lamb, the court's primary inquiry in determining whether an individual occupies a position of trust should be "whether the employee's position provided access to items of value or the employee was a sworn public servant engaged in the performance of public duties." Id. at 419. At issue was whether a letter carrier for the United States postal service *920 convicted of embezzlement of U.S. mail had abused a position of public trust. The defendant had allegedly stolen or destroyed approximately 1500 pieces of mail including 37 state and federal tax returns. Id. at 416. Noting that the defendant had sworn to "uphold the law" and faithfully discharge his duties as a public servant, the court concluded that the defendant had abused his position of public trust through his embezzlement of the U.S. mail. Id. at 419. According to the court, the defendant's position was analogous to the position held by police officers found to have violated the very laws they had been charged with enforcing. Id. citing United States v. Foreman, 926 F.2d 792, 796 (9th Cir.1990). Accord United States v. Gould, 983 F.2d 92, 94 (7th Cir.1993) (assuming that a police officer occupies a position of trust).
Though not a government employee, Franklin, as a licensed attorney, occupied a position of public trust similar to the positions held by the mail carrier in Lamb and the police officers in Foreman and Gould. See Illinois Rules of Professional Conduct, Preamble ("[t]he practice of law is a public trust ... and [l]awyers therefore are responsible for ... defending the integrity of the judicial system against those who would corrupt, abuse or defraud it"). As a member of the Illinois bar, Franklin swore on oath to protect, preserve, and uphold the law. Not merely an advocate, Franklin was an officer of the court, entrusted with preserving the integrity of the judicial process. See In re Sawyer, 360 U.S. 622, 668, 79 S. Ct. 1376, 1399, 3 L. Ed. 2d 1473 (1959) (Frankfurter, J. dissenting) ("[the lawyer] is an intimate and trusted and essential part of the machinery of justice, an officer of the court in the most compelling sense"). By conspiring to obstruct the very judicial process that he had sworn to defend, Franklin abused his position of public trust in precisely the same manner that a letter carrier who embezzles U.S. mail abuses his position. Moreover, as discussed above, Franklin's abuse of his position of trust significantly facilitated the commission of the crime.
Still, as Franklin correctly notes in his objection to the PSI, the two-level enhancement under this section of the Guidelines does not apply if the "abuse of trust or skill is included in the base offense level or specific offense characteristic." U.S.S.G. § 3B1.3. Franklin errs, however, in asserting that the abuse of a position of trust or the use of special skills are elements of the base offense of obstruction of justice.
18 U.S.C. § 1503 provides: "Whoever corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than 5 years, or both." Thus, under its express terms, the statute applies to any individual who attempts to obstruct justice, not just those individuals with special skills or in a position of trust. Accord United States v. Cintolo, 818 F.2d 980, 991 (1st Cir.1987) ("[a]cceptable notions of evenhanded justice require that statutes like § 1503 apply to all persons, without preferment or favor."). As the government points out, the broad reach and general applicability of the statute is borne out in the case law. See United States v. Balzano, 916 F.2d 1273, 1291 (7th Cir.1990) (use of a threatening hand gesture can constitute obstruction of justice); United States v. Rovetuso, 768 F.2d 809, 823 (7th Cir.1985) (attempted murder of a government witness constitutes obstruction of justice); United States v. Berkowitz, 712 F. Supp. 707 (N.D.Ill.1989), rev'd on other grounds, 927 F.2d 1376 (7th Cir.1991) (theft and destruction of government evidence). Because neither the use of a special skill nor the abuse of a position of trust was an element of his base offense, defendant's objection to the two-level enhancement of his sentence is denied.
Downward Departure for Attempted Assistance
Franklin requests a two-level downward departure in recognition of his attempt to provide the government "with substantial assistance" in the investigation of an unrelated criminal matter. (Defendant's PSI Brief at 6). According to Franklin, he and his lawyer met with two assistant United States attorneys to discuss the possibility of assisting the U.S. Attorney's office in its investigation into alleged criminal conduct in the Village of Maywood. (Defendant's PSI Brief at 6). As a former counsel to the Board of the *921 Village of Maywood and an acquaintance of several targets of the investigation, Franklin claims he was well situated to assist the government in its investigation. Id. Although the government neither accepted his assistance nor asked this court to consider Franklin's offer in its sentencing decision, Franklin believes he is nevertheless entitled to a two-level downward departure for the proffer. Id. at 6-7.
Downward departures for providing substantial assistance to authorities are governed by Section 5K1.1 of the United States Sentencing Guidelines. Section 5K1.1 provides in part:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
U.S.S.G. § 5K1.1 (emphasis added).[4] Here, the government has made no motion for downward departure under Section 5K1.1. Under the clear language of the provision and the law of this circuit, this court need not, and except under the rarest of circumstances, cannot grant the requested departure absent a government motion. See U.S. v. Brick, 905 F.2d 1092, 1098-99 (7th Cir. 1990); U.S. v. Donatiu, 922 F.2d 1331 (7th Cir.1991). Franklin's motion for downward departure for substantial assistance of authorities is therefore denied.[5]
Downward Departure on Equitable Grounds
Finally, Franklin urges the court to authorize a two-level downward departure from the sentencing guidelines on various equitable grounds. In particular, defendant notes that as a result of his crime, he has already lost the right to practice his chosen profession, and suffered the "ignomy of adverse publicity" in various professional journals and newspapers. He also asks the court to consider his long involvement in public interest organizations, and his substantial family and community ties. (Defendant's PSI Brief at 7-11).
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds "that there exists an aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." See also U.S.S.G. § 5K2.0 Grounds for Departure (Policy Statement). Though Franklin's case undoubtedly inspires sympathy,[6] it does not present the kind of "mitigating circumstances" that warrant downward departure. In fact, virtually all of the factors highlighted by defendant are specifically cited by the Sentencing Commission as "not ordinarily relevant in determining whether a sentence should be outside the applicable guidelines range." See U.S.S.G. § 5H. Accordingly, Franklin's request for a two-level downward departure on various equitable grounds is denied.
Conclusion
For the foregoing reasons, the court denies defendant's objections to his presentence investigation report. Defendant's adjusted offense level is 12. Having no prior offenses, his criminal history category is I. Thus, under the sentencing guidelines, defendant's sentencing range is 10 to 16 months.
NOTES
[1] Unless otherwise noted, the following summary of the relevant facts of this case is based on the Government's Version of the Offense contained in the PSI. Defendant does not contest the Government's Version of the Offense. (Defendant's Brief in Opposition to PSI at 1).
[2] As a result of one of these complaints, Franklin was suspended from the practice of law for a 30-day period beginning June 10, 1993. On June 15, 1993, Franklin moved to have his name stricken from the roll of attorneys authorized to practice law within the State of Illinois. (Defendant's PSI Brief, Exhibits B and C); (PSI at 7).
[3] Gibson was arrested on drug trafficking charges on May 16, 1991. He immediately agreed to cooperate with the government in its investigation of Franklin. (Government Sentencing Memorandum at 1-2).
[4] Section 5K1.1(a) further instructs the court to consider the following factors in determining whether downward departure is appropriate: (1) the "significance and usefulness" of the defendant's assistance; (2) the "truthfulness, completeness, and reliability" of the information provided by the defendant; (3) "the nature and extent" of the assistance; (4) any injury or risk of injury suffered by the defendant or his family as a result of his assistance; and (5) the "timeliness" of the defendant's assistance.
[5] Even if this court could entertain the defendant's request for downward departure, no such departure would be appropriate here. Applying the factors set forth in § 5K1.1(a), neither the "significance and usefulness" nor the "nature and extent" of the defendant's assistance would appear to warrant a reduction in defendant's sentence.
[6] The court has carefully reviewed the many poignant letters submitted on defendant's behalf. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2377513/ | 388 F. Supp. 2d 250 (2005)
ADEE MOTOR CARS, LLC, Monticello K-9, LLC, Plaintiffs
v.
John AMATO, Jim Fredericks, Fredericks Motors, Defendants
John Amato, Counterclaim Plaintiff
v.
Adee Motor Cars, LLC, Monticello K-9, LLC, Sunset 17, LLC, Denise Gellis Counterclaim Defendants
No. 00 CIV. 9635SCRGAY.
United States District Court, S.D. New York.
August 5, 2005.
*251 *252 Jan Ira Gellis, Gellis & Melinger, New York City, for Plaintiffs and Counterclaim Defendants.
R. Scott Thompson, Lowenstein Sandler PC, New York City, for Defendants and Counterclaim Plaintiff.
MEMORANDUM DECISION AND ORDER
ROBINSON, District Judge.
I. Background
Adee Motor Cars, LLC ("Adee") and Monticello K-9, LLC ("Monticello"; Adee and Monticello are collectively referred to herein as "Plaintiffs") commenced this action against John Amato ("Amato"), Jim Fredericks ("Fredericks") and Fredericks Motors ("Motors"; Amato, Fredericks and Motors are collectively referred to herein as "Defendants"), alleging that Amato and Fredericks acted as an enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. In addition, the Plaintiffs have asserted three common law claims breach of fiduciary duty, unjust enrichment and misrepresentation that arise under New York state law.
Amato has also asserted four counterclaims, all of which also arise under New York state law, against Adee, Monticello, Sunset 17, LLC ("Sunset") and Denise Gellis ("Gellis"; Adee, Monticello, Sunset and Gellis are collectively referred to herein as "Counterclaim Defendants"). Specifically, Amato alleges that the Counterclaim Defendants oppressed his rights as a minority shareholder in Adee, wrongfully terminated his employment and withheld his proportionate share of rents from Sunset. In addition, Amato claims that Gellis breached her fiduciary duty to him by engaging in unlawful transactions involving various corporations.
Plaintiffs claim that Amato, while he was employed by Middletown Honda, a car dealership owned by Adee, conspired with Fredericks, another car dealer, to cause Adee to pay more than fair market value for used cars so that Amato and Fredericks could unlawfully profit from the difference in price. Plaintiffs also contend that, via his enterprise with Fredericks, Amato engaged in self-dealing and unjust enrichment, resulting in damages to plaintiffs.
In his counterclaim complaint, Amato claims that, in accordance with an oral agreement, he is a minority shareholder/owner of Adee, and that his rights as such were oppressed by Gellis and Adam Melec ("Melec"), who are the other two shareholders/owners of Adee. Amato further alleges that he was wrongfully terminated from his employment at Middletown Honda, that Gellis breached her fiduciary duty to other shareholders by engaging in unauthorized and suspicious loans and repayments concerning Adee and Monticello, and that he has not received disbursements from Sunset to which he is entitled because of the Counterclaim Defendants' fiduciary breach.
The Defendants filed a motion for summary judgment dismissing all counts in Plaintiffs' complaint. Amato also filed a motion for summary judgment on his first counter-claim. The Counterclaim Defendants filed a motion for summary judgment dismissing Amato's first, third and fifth counterclaims. These motions were referred to Magistrate Judge Yanthis for a Report & Recommendation.
*253 On October 28, 2004 Judge Yanthis issued his report, recommending that Defendants' motion for summary judgment be granted, Plaintiffs' remaining claims be dismissed, and that Amato's counterclaims also be dismissed.
II. Analysis
A. Standard of Review
Summary judgment is appropriate only if "there is no genuine issue as to any material fact[.]" FED. R. CIV. P. 56(c). Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id.
In reviewing an R & R, a Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y.1991) (court may accept report if it is "not facially erroneous"). However, a district court judge is required to make a de novo determination as to the aspects of the report and recommendation to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-674, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). The Plaintiffs/Counterclaim Defendants objected in a timely fashion to Judge Yanthis' recommendations. The Defendants also objected to some, but not all, of Judge Yanthis' recommendations.
B. Judge Yanthis' Recommendations
In this case, Plaintiffs assert that defendants Amato and Fredericks engaged in an illegal enterprise to defraud Plaintiffs, and thus violated the RICO statute, 18 U.S.C. § 1962(c). As Judge Yanthis noted, proof of a RICO violation requires evidence of "at least two related predicate acts..., the last of which must have occurred within 10 years of a prior act of racketeering activity." Pinnacle Consultants v. Leucadia Nat'l Corp., 101 F.3d 900, 904 (2d Cir.1996) citing 18 U.S.C. § 1961(5).
Here, Plaintiffs allege that the relevant predicate acts are mail fraud and wire fraud. The mail and wire fraud statutes prohibit the use of those means of communication in furtherance of "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. §§ 1341, 1343. See also United States v. Slevin, 106 F.3d 1086, 1088 (2d Cir.1996) ("Because the [mail and wire fraud] statutes use the same relevant language, they are analyzed in the same way.").
Judge Yanthis found that there are no genuine issues of material fact regarding the issue of whether or not the defendants engaged in the predicate acts of mail and wire fraud. Specifically, Judge Yanthis found no evidence that Fredericks and Amato utilized the mails or wires to defraud, or that they were otherwise engaged in a "scheme to defraud" at all. As a result, Judge Yanthis recommended that the Defendants' motion for summary judgment on Plaintiffs' RICO claim should be granted.
*254 Having recommended that the only federal claim in the case be dismissed, Judge Yanthis recommended that this court decline to exercise jurisdiction over Plaintiffs' remaining claims and Amato's counterclaims, all of which arise under New York state common law.
C. Objections
1. Plaintiffs'/Counterclaim Defendants' Objections
Plaintiffs argue that, contrary to Judge Yanthis' finding, there is adequate evidence in the record to create genuine issues of fact as to whether the Defendants were engaged in a scheme to defraud, and utilized mails or wires to further their scheme. Specifically, Plaintiffs argue that Judge Yanthis ignored several facts that raise questions as to whether there was a scheme to defraud and, by implication, whether Amato and Fredericks used the mails or wires to implement it.
With respect to the use of the mails or wires, Judge Yanthis noted that, although Fredericks conceded that he spoke with Amato often by telephone or cell phone, Fredericks testified that the calls were routine conversations in which he and Amato discussed the availability and price of used vehicles for Middletown Honda to purchase. Moreover, Judge Yanthis found that there was no evidence contradicting Fredericks' testimony on the issue of whether these conversations were anything but routine.
On the issue of the use of wires, however, Judge Yanthis' conclusion is unpersuasive. In order to establish a RICO claim based on mail or wire fraud, the telephone calls or mailings need not have contained misrepresentations themselves. See Moses v. Martin, 360 F. Supp. 2d 533, 548 (S.D.N.Y.2004); Miltland Raleigh-Durham. v. Myers, 807 F. Supp. 1025, 1056 (S.D.N.Y.1992). Rather, plaintiffs must assert merely that the use of the mails or the wires was accomplished in furtherance of the scheme alleged, which was itself fraudulent. Moses, 360 F.Supp.2d at 548. It is the fraudulence of the scheme itself, not any individual falsehood in any particular mail or wire communication that must be alleged. See id. As such, summary judgment is not appropriate simply because there is no evidence that the conversations touched upon anything but the availability and prices of used vehicles. Since the alleged scheme involved the purchase of used vehicles, such "routine" conversations could very well have contributed to a fraudulent scheme.
Judge Yanthis also found that there were no genuine issues of fact regarding the issue of whether the Defendants were actually engaged in a scheme to defraud. Specifically, Judge Yanthis noted that that every check that Fredericks was given as payment for used vehicles was actually approved by the Plaintiffs, who never complained that the prices were too high. Moreover, Plaintiffs have concededly produced no proof that Amato was receiving kickbacks on the allegedly fraudulent transactions. On this issue, Judge Yanthis' analysis is persuasive.
In their objections, Plaintiffs essentially ask the court to find genuine issues of material fact by drawing inferences from the following various circumstances surrounding Amato's purchase of used cars on behalf of Plaintiffs: 1) Fredericks sold all the vehicles he purchased at auctions to the Plaintiffs; 2) Amato allowed Fredericks to buy the cars at the auctions, instead of simply buying them himself; 3) Amato purchased cars previously bought by Fredericks at auctions, instead of simply hiring Fredericks to act as Plaintiffs' representative and buy cars on Plaintiffs' behalf; 4) Plaintiffs purchased cars that Fredericks had previously bought from two New Jersey dealerships, instead of *255 buying the cars directly; 5) Motors earned most if not all of its profits from sales to the Plaintiffs.
Plaintiffs' argument, which is essentially a restatement of the allegations in their complaint, is inadequate to withstand summary judgment. Although a court adjudicating a motion for summary judgment must resolve all ambiguities in favor of the nonmoving party, "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). In this case, all Plaintiffs have managed to produce is entirely unsubstantiated speculation that Defendants were engaged in a fraudulent scheme, without any proof that Amato benefited in any way. Moreover, Defendants provide innocent explanations for much of the conduct that Plaintiffs find suspicious in their summary judgment papers, but even leaving these explanations aside, Plaintiffs opposition to summary judgment amounts to nothing more than "conjecture or surmise" on which a summary judgment motion "will not be defeated...." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). See also Scotto, 143 F.3d at 114 (the opposing party "must produce specific facts indicating that a genuine factual issue exists.") (internal citations omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ("If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal citations omitted).
Therefore, this court finds, consistent with Judge Yanthis' recommendation, that Defendants' motion for summary judgment on Plaintiffs' RICO claim must be granted.
2. Defendants'/Counterclaim Plaintiff's Objections
Although, for obvious reasons, Defendants are requesting that this court adopt Judge Yanthis' recommendation with respect to dismissing Plaintiffs' RICO claim, they object to Judge Yanthis' recommendation that this court choose not to exercise jurisdiction over, and therefore resolve on the merits, the state claims and counterclaims in this case. Specifically, Defendants argue that it would be inequitable and inefficient not to exercise supplemental jurisdiction because the Plaintiffs chose a federal court forum, the case has been litigated for over four years and discovery is already complete. Defendants also contend that the same findings underlying this court's granting of summary judgment on the RICO claim that there is no evidence of any improper payments to Amato or of a fraudulent scheme involving Amato and Fredericks also compel the dismissal of Plaintiffs' state law claims.
In determining whether to retain jurisdiction over remaining state law claims, district courts consider factors such as judicial economy, convenience, fairness, and comity. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1191 (2d Cir.1996). In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir.1988).
Although the court recognizes that dismissal of the pendent state claims, even where the federal claims have been dismissed before trial, is "not absolutely mandatory," Baylis, 843 F.2d at 665, the court declines to exercise jurisdiction over the state law claims and counterclaims in this case. First, it is not entirely clear to the court why all of the discovery in this case would necessarily need to be repeated were the state claims in this case litigated in state court. Second, to the extent Defendants *256 are correct that this court's dismissal of the RICO claim also precludes Plaintiffs from establishing their state law claims, unnecessary litigation in state court could conceivably be precluded by a state court's application of principles of collateral estoppel. Third, even Defendants concede that summary judgment would not be appropriate on all of Amato's counterclaims, and a cursory examination of their briefing papers indicates that resolving these counterclaims will involve at least some nonobvious interpretations of New York state law. As such, this court finds that the resolution of these issues would be best left to state courts. See Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir.1994) (holding that, where the state claim required an application of state law that was potentially novel, the state claim was appropriately resolved in state court, and retention of the state claim after the dismissal of the federal claim "would be an inappropriate exercise of pendent jurisdiction and a waste of judicial resources").
Therefore, the remaining claims and counterclaims, all of which arise under New York state law, are also dismissed.
III. Conclusion
Having reviewed the R & R and conducted a de novo review of Defendant's objections thereto, this court accepts and adopts Judge Yanthis' recommendation.
Accordingly, Defendants' motion for summary judgment on Plaintiffs' RICO claim is GRANTED.
Defendants' state law claims and counterclaims are dismissed without prejudice.
The clerk of the court is directed to CLOSE this case.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2377791/ | 501 F. Supp. 243 (1980)
Claude MADDEN, Petitioner,
v.
Walter FOGG, Superintendent at Eastern New York Correctional Facility, Napanoch, N. Y. and The Attorney General of the State of New York, Robert Abrams, Respondents.
No. 80 Civ. 4709(MP).
United States District Court, S. D. New York.
November 10, 1980.
*244 Claude Madden, petitioner, pro se.
Robert Abrams, Atty. Gen., of New York, New York City, for respondents by Gerald J. Ryan, Asst. Atty. Gen., New York City, and Richard S. Lurye, Forest Hills, of counsel.
OPINION
MILTON POLLACK, District Judge.
Petitioner, in state custody, seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming that his Fourth, Fifth, Sixth and Fourteenth Amendment rights were violated in respect to his arrest, seizure, search, identification and trial. A careful review of the state court proceedinigs establishes clearly that there is no merit in any of these claims.
Petitioner was tried and found guilty by a jury in Supreme Court, New York County, of robbery, criminal possession of weapons and of stolen property. He received concurrent sentences of a maximum of twenty-five years for the robbery count, six years for the weapons count and three years for the stolen property count. On appeal the stolen property count was held as a matter of law to be subsumed in the robbery count and was dismissed and the three year sentence thereon was vacated with the express finding that the dismissal was not to be deemed an acquittal thereon. In all other respects the conviction was affirmed. Leave to appeal was denied by the Court of Appeals. Petitioner is serving *245 his sentences at the Eastern New York Correctional Facility at Napanoch, New York.
The facts answer each of the grounds asserted for relief on this application. Petitioner is proceeding Pro Se hereon but was at all relevant times theretofore represented by counsel.
At about 3 o'clock in the morning on February 23, 1976 police officers came upon the petitioner and three others engaged in an argument; one of them was making "menacing" gestures. The police drove off a short distance and then doubled back, stopped and inquired where one of the four, then missing from the group, was. The petitioner explained that the latter was armed with a gun and had been "looking to rip me off." As they talked, the police officer noticed that petitioner kept "flinching" and twisting his right hand, and the police officer noticed something shiny in petitioner's hand which was covered by his coat sleeve and asked what it was and petitioner responded "It's a knife" (petitioner claims that the knife was in his coat sleeve, not his hand). Upon hearing this, the officer took out his handgun and took the knife away from petitioner. The knife was 12 inches long and was described as a "gravity" knife, i. e., one which can be opened with one hand by the force of gravity and then locks into place-clearly a deadly weapon.
The police arrested petitioner for possession of such a knife, took him into the station house where he was searched incident to the arrest and was found in possession of credit cards, a driver's license and miscellaneous papers belonging to one, George Morano. A check of police records showed that George Morano had reported he had been robbed and his credit cards stolen on the previous day. Petitioner was booked on the knife charge. Prior to actual arraignment thereon, on instructions from the Assistant District Attorney, the police decided to investigate whether petitioner was involved in robbery from George Morano. Mr. Morano was called in to view a "possible suspect". Carl Ellis, another victim of the same robbery was also called in for the viewing.
Petitioner, a black, and five other black males participated in the line-up. Since petitioner was not as tall as the others, all six men were seated during the viewing. Messrs. Morano and Ellis, in turn, looked at the line-up through a one-way mirror while the other stood two feet away. Then, Morano and Ellis separately picked out Madden as the man who had committed a robbery on them at gunpoint. The robbery had been committed 36 hours prior to the line-up and both victims had had an excellent opportunity to see petitioner during its course as they were face-to-face with him during the encounter which took place in a well-lit area. Petitioner was then booked on robbery, arraigned, indicted, and pleaded; he was represented by counsel at each step.
At an omnibus suppression hearing held before trial, the state court determined that the seizure of petitioner by the police was proper; that the station house search was properly incident to a lawful arrest; that the line-up was not impermissibly suggestive; and that the line-up was in the course of police investigation of a reported robbery and prior to booking him thereon and consequently petitioner had no right to counsel at such a line-up; and that there was no bad faith purpose in having petitioner viewed as a "possible suspect" prior to being charged and arraigned on a robbery charge; nor any undue delay thereof with a purpose to deprive petitioner of his Sixth Amendment right to counsel. Self-evidently a prompt line-up attempt to ascertain any connection of petitioner with the earlier robbery in addition to the gravity knife charge was in order in the circumstances to preserve reliable evidence and to determine the proper charges to be filed against petitioner.
Petitioner proceeded to trial on September 30, 1976 but a mistrial was declared before a 12th juror was selected and before the jury was empanelled and sworn. Subsequently a second jury trial was commenced and the trial resulted in the conviction of petitioner.
*246 On appeal to the Appellate Division, petitioner unsuccessfully argued that 1) his guilt of robbery was not proved beyond reasonable doubt; 2) the seizure on February 23 and the incidental search thereafter, were improper; and 3) the line-up was impermissibly suggestive. These factual claims are unsupported in the record and furnish no basis for relief on this application.
In addition to the foregoing, the petitioner unsuccessfully raised the following additional legal matters on his appeal, viz., 4) that he had a right to counsel at the line-up; 5) that the mistrial at the first attempt to draw a jury resulted in Double Jeopardy; 6) that he was deprived of a fair trial by the joinder of the gravity knife and robbery charges; and 7) that the court reporter having failed to take down the latter portion of the defense counsel's summation deprived petitioner of due process.
The law applicable to petitioner's request for habeas corpus is settled and affords no relief hereon.
The evidence of petitioner's guilt was ample for conviction on the robbery and weapons charges and so found by the state courts. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2792, 61 L. Ed. 2d 560 (1979); see, also, Section 160.15 N.Y. Penal Law (McKinney). The results of the omnibus suppression hearing are amply supported on review of the facts in the record. Since a full and fair opportunity was provided by the state to litigate petitioner's Fourth Amendment claims, habeas corpus is not available to challenge evidence introduced at trial on the claim of an unconstitutional search or seizure. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).
The line-up identification occurred during the preliminary police investigation of a reported robbery which occurred on the previous day, in order to preserve evidence and to determine whether and on what crimes petitioner should be charged and prior to any adversary judicial proceedings. Petitioner therefore had no federal right to counsel at that stage. In Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) the Supreme Court drew the line that Sixth Amendment right to counsel attaches "only at or after the time that adversary judicial proceedings have been initiated" Id. at 688, 92 S. Ct. at 1881. Examples of that time were mentioned as "formal charge, preliminary hearing, indictment, information or arraignment" (Id. at 689, 92 S. Ct. at 1882). None of those points had been reached herein in respect to the ultimate robbery charges. The identification was fully reliable. See, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, at 199, 93 S. Ct. 375, at 382, 34 L. Ed. 2d 401 (1972). The state court likewise found against petitioner's contention under state law in rejecting this contention.
The additional legal contentions also are wanting in substance.
Double jeopardy did not attach until a jury had been empanelled and sworn. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975).
The joinder of the robbery charge with the weapon charge raised no federal question. Such joinder is expressly permissible. N.Y.Crim.Proc.Law §§ 200.20(2)(b) and (c) (McKinney). The evidence sufficiently permitted the jury to find possession of the weapons, the gun and the knife, as charged in the indictment, at the time of the robbery. Joinder and severance are questions left to the discretion of the trial judge; no constitutional question is involved.
The omission by the reporter to record a portion of the summation of the defense counsel and the fact that minutes of defense counsel's total summation were missing on the appeal raise no question here since no claim based on the content thereof is asserted as having prejudiced the defendant. The jury heard the defense summation. The defense attorney was not hampered on appeal by the absence of a record of some of his argument to the jury; he was free to recount his arguments if they *247 were applicable on appeal. Cf. People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24 (1977).
The petition is in all respects, denied.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2803957/ | J-S16008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STEPHEN ALFRED WATKINS
Appellee No. 1164 MDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000690-2014
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
JUDGMENT ORDER BY PANELLA, J. FILED MAY 27, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the
judgment of sentence entered by the Honorable Gregory M. Snyder, Court of
Common Pleas of York County. The Commonwealth argues that the trial
court erred in concluding that the statutory maximum sentence for a
second-time conviction for DUI-refusal is six months. We affirm.
Appellee, Stephen Alfred Watkins, pled guilty to driving under the
influence of alcohol – refusal of blood test on June 16, 2014. As this was
Watkins’s second DUI offense in the last ten years, the offense was graded
as a first-degree misdemeanor pursuant to 75 Pa.C.S.A. § 3803(b)(4). The
trial court concluded, over the Commonwealth’s objection, that pursuant to
this Court’s opinion in Commonwealth v. Musau, 69 A.2d 754 (Pa. Super.
2013), the statutory maximum sentence for this conviction was six months.
J-S16008-15
As a result, the trial court sentenced Watkins to a term of imprisonment of
time served to six months. The Commonwealth then filed this timely appeal.
On appeal, the Commonwealth argues that the trial court’s reliance
upon Musau was mistaken. First, the Commonwealth contends that this
Court’s opinion in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013)
implicitly overruled Musau. However, Barr did not address Musau or its
holding that the statutory maximum for a conviction under 75 Pa.C.S.A. §
3803(b)(4) was six months. Rather, the Barr panel was concerned with the
validity of a jury instruction on the issue of the defendant’s refusal of blood
testing. The panel concluded that the instruction was erroneous. See 79
A.2d at 677. In discussing the procedural history of the appeal, the panel
noted that “the jury’s ‘refusal’ determination also increased Appellant’s
statutory maximum penalty from six months’ imprisonment to five years’
imprisonment.” Id., at 674.
A three-judge panel of this Court is not empowered to overrule a
previously published opinion of this Court. See Commonwealth v. Beck,
78 A.3d 656, 659 (Pa. Super. 2013). We conclude that the Barr panel did
not intend, nor did it have the power, to overrule Musau.
In the alternative, the Commonwealth urges this Court to ignore
Musau due to the Supreme Court of Pennsylvania’s grant of review of this
issue in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013). However,
the Supreme Court has recently dismissed the appeal in Mendez as having
-2-
J-S16008-15
been improvidently granted. See 2015 WL 1421402 (Pa., March 30, 2015).
Accordingly, the opinion of this Court in Musau1 remains binding law upon
this panel.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
____________________________________________
1
On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B.
1239, Session of 2014, Printer’s No. 2396). This is an Act amending various
provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section
3803(a), the section at issue in Musau. Act 189 amends Section 3803(a)
by changing “Notwithstanding the provisions of” to “Except as provided in.”
Section 4(1)(ii) of Act 189, states that the amendment to §3803(a) shall
take effect immediately, meaning on October 29, 2014. Since Watkins’s
sentence was entered prior to October 29, 2014, we apply the prior version
of the statute.
-3- | 01-03-2023 | 05-27-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2381766/ | 354 S.W.2d 584 (1962)
Jack Harold TRUSSELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 34340.
Court of Criminal Appeals of Texas.
February 21, 1962.
Joe Burkett, San Antonio, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Presiding Judge.
The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 25 days in jail and a fine of $100.
*585 Staff Sergeant R. L. Grissett, called out of the Ali-Hafe bar about 10:30 P.M., found that his parked automobile had been struck from the rear by another automobile. The appellant, who was standing in front of the second car which was damaged in the front, told Sergeant Grissett that he was driving said car, and said: "I hit your car, I had too many, I just had too many drinks this evening, and I just got too close to your car."
Sergeant Grissett, Patrolman Robert Fleming and detective-investigator Barney Sams expressed the opinion that appellant was intoxicated. They described appellant's speech as being slurred and incoherent, testified that he was staggering and had a strong smell of intoxicants on his breath.
Appellant called Joseph Panelli as a witness. He testified that appellant was in his place of business until about 9 P.M. on the night in question, and he was sober. On cross-examination he testified that he served beer at his place of business and that appellant "was drinking a few beers"; that he did not pay much attention to appellant because he was playing dominoes and appellant was playing pool, and testified: "I don't think he drank over five as far as I know, when I was there."
The grounds upon which reversal is sought relate to the testimony of Police Officers Barney Sams and Harold Fiske regarding a drunkometer test taken with appellant's consent, Officer Sams having run the test and Officer Fiske, assigned to the Police Laboratory, having weighed the ascarite tube used in the test and calculated the blood alcohol content of the person who took the test to be "decimal one seventy-six or decimal one seven", which indicated intoxication.
We see no error in the admission in evidence of a photograph of the appellant which Officer Fleming testified was "a true and fair and accurate representation of the defendant as he appeared on the night you arrested him", over objection that it was not shown when the photograph was taken and how it was taken and by whom.
The picture which the witness testified was a fair and accurate representation of the Harger drunkometer he used in running the test on appellant is not found in the record. The court's ruling in admitting this picture in evidence does not appear to be erroneous.
Appellant contends that Officers Sams and Fiske were not competent to run a proper drunkometer test, and that the court erred in allowing them to testify with reference to such test.
We overruled such contention as to Officer Fiske's qualifications in McGee v. State, No. 34,276, Tex.Cr.App., 355 S.W.2d 187.
Officer Sams was shown to have had training in the police laboratory under Lieutenant Morales, whose qualifications were before us in Fluitt v. State, Tex.Cr. App., 333 S.W.2d 144, and under Officer Harold Fiske in running the test and sealing the ascarite tube, and the evidence shows that Officer Fiske checked the drunkometer and ascarite tube on April 21st and again on April 24th.
Officer Sams appears to have been qualified in the use of the drunkometer. He testified that he was not a chemist and had nothing to do with the results of the test, but knew how to operate the drunkometer. He testified that he sealed the ascarite tube and placed it in a glass vial, and Officer Fiske testified that he received the tube and took it to the laboratory.
The evidence is sufficient to sustain the conviction and we find no reversible error.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2381770/ | 1 U.S. 481 (1789)
1 Dall. 481
GRAFF
versus
SMITH'S Admors.
Supreme Court of United States.
After argument, THE PRESIDENT stated the circumstances of the case, and delivered the opinion of the Court, in the following manner.
SHIPPEN, President:
The facts agreed on both sides in this cause, are, that Robert Smith died intestate indebted to several persons, and possessed of a considerable real estate, but not of sufficient personal estate to pay his debts; that his administrators applied to the Orphan's Court for an order to sell certain parts of the real estate, sufficient to pay the debts and maintain the children; that such order was accordingly obtained, and that part of the real estate was sold for that purpose; that a subsequent application was made to the Orphan's Court for a division of the remainder among the children; that the part alloted to John Smith, the eldest son, on that division, was by him sold and conveyed to bona fide purchasors; and that John Smith was himself an administrator, and neglected to discharge all the debts out of the sum arising from the sale of the lands ordered to be sold by the Orphan's Court, but wasted the money, and is supposed insolvent.
Some of the creditors of Robert Smith, whose debts remained unpaid, have since obtained judgments, and issued executions against the lands of the intestate, as well those sold by John Smith, under the order of division, as against the lands remaining unsold in the hands of the younger children.
Three questions have arisen upon the argument.
1. Whether, upon the death of the intestate, his lands were bound to the payment of the debts, in such a manner, as that they may be taken in execution and sold, notwithstanding the heir may have previously sold and conveyed the same to bona fide purchasors?
2. Whether the purchasors from one of the heirs, is bound to contribute to the other heirs?
3. Whether the purchasors under the order of the Orphan's Court, are likewise bound to contribute?
I. In order to solve the first question, it will be necessary to take into view the several acts of Assembly which subject lands to the payment of debts.
The act of 1700 subjects all lands of debtors to sale on judgment and execution against them, their heirs, executors, or administrators.
*482 The act of 1705 repeats the same provision, with the restriction, that, if the clear yearly profits will pay the debt in seven years, the land shall be delivered to the Plaintiff upon a reasonable extent.
Under these acts the real estates of debtors have been held liable to sale by execution, whether they be living, or dead; if living, under a judgment and execution against themselves; if dead, under a judgment and execution against their heirs, executors, or administrators.
By the Intestate Act, passed likewise in 1705, there is a particular provision in case of intestacy, that the Administrator may sell such parts of the real estate as the Orphan's Court should allow of, as sufficient to pay the debts, maintain the children, and improve the residue of the estate. By this act the surplusage, or remaining part of the intestate's lands, not sold, or ordered to be sold, by virtue of that act, is directed to be divided among the intestate's widow and children, in the proportions therein expressed.
Although the surplusage only is here directed to be divided, yet the construction has always been, that where there are no debts, or where they have been otherwise satisfied, the division shall notwithstanding take place, the act being considered as a general law of descents and distribution.
It is contended, on one side, that the word surplusage in the latter act implies strongly that the remaining part only of the real estate, after payment of debts, is vested in the heirs, and that they shall take nothing till the debts are paid; or, if they do take them, it must be cum onere.
On the other side, it is said, that the act was made for a particular purpose, that the word surplusage relates only to the remainder of the lands not ordered to be sold by the Orphan's Court, and that there are no words which express or imply the surplusage to mean after payment of debts.
Upon the former construction, however, it is urged, that, immediately on the death of the intestate, there is a Lien created on all the real estate in favor of the creditors.
Without entering into the doctrine of Liens under the words of this act, which would only affect the estates of persons dying intestate; I would choose to consider the question on broader ground; that is, how far, and in what manner, the real estate of deceased persons, whether they die testate or intestate, is bound by our laws to the payment of their debts.
That such real estates are a fund for the payment of debts, is not controverted; but, it is contended, that they are no otherwise a fund after the death of the debtor, than in his life time; and that as he himself could have aliened before judgment, so his representatives could likewise alien, and that the lands are not specifically bound, till judgment against the executors or administrators; that *483 if, indeed, they are then-unsold, they remain a fund, but if aliened, no remedy remains except a personal one against the seller.
The real and personal estates are both funds for the payment of debts. The personal estate, there is no doubt, is immediately bound on the death of the debtor; it goes into the hands of the executor, or administrator, and is assets in his hands for the payment of debts; specific personal property, being in its nature perishable, may be sold for that purpose, and the executor, or administrator, is personally bound to answer for the value. In the case of the administrator, he must give security before the administration is committed to him: In the case of an executor, being intrusted by the testator, he gives no security in the first instance; but, in case of probable insolvency, he may be compelled likewise to give security. In both cases, the whole personal estate, or its value, is bound, from the moment of the debtor's death, to the payment of his debts. The real estate is likewise confessedly a fund for the payment of debts. It is a fund, however, that does not actually go into the hands of the executor, or administrator, as assets in the ordinary course; but it is a fund, made such by positive law, in another form; that is, creditors may issue executions, and sell it for the payment of their debts, on a judgment against the executor, or administrator; for, it is not necessary, nor has it been usual, to bring the action against the heir. The lands, however, go into the hands of the heir or devisee, who gives no security, and between whom and the creditors there is no privity: They are made a fund for the payment of all debts, and must necessarily have been intended by the Legislature to be a certain, and not a precarious fund; for, since it is declared, that the creditors may take them in execution on a judgment against the executor, or administrator, it must be meant that they should have the fruit of that execution; and as there is the same reason under the law, that they should be equally liable with the personal estate from the death of the debtor, they must necessarily be liable in such a manner as to be answerable at all events, which can no otherwise be, than by considering them as specifically liable in whosever hands they may be. If it were otherwise, they would prove no fund at all; for the devisee, or heir, knowing that if judgments were obtained, he should lose his land, would, in every instance, where he apprehended debts beyond the amount of the personal estate, immediately sell them, and thereby entirely defeat the intent of the Legislature, in making them a fund for the payment of debts.
The mischief of this doctrine is still more striking, if we consider, that the estates of the inhabitants of Pennsylvania, out of the city of Philadelphia, are chiefly real estates, and if they were immediately alienable by the heirs, without being afterwards liable for the ancestors debts, few creditors to any amount would ever recover their debts, although perhaps the debts may really have been contracted on the credit of the lands.
*484 Another consequence might likewise follow, that where the father dies indebted leaving sufficient real estate, and but little personal, if the heir, or devisee, being likewise indebted on his own account, takes the land in the manner contended for, then his creditors by obtaining judgment against him, before his father's can obtain judgment against the executors, will recover their debts out of his father's lands, whose creditors would in that case be entirely cut out. This would certainly be too unjust, and repugnant to the spirit of our laws, ever to receive the sanction of a court of justice.
On these grounds, it is, as I take it, that lands, of deceased persons, have always heretofore been considered as liable to be taken in execution for debt, in the hands of a purchaser from the heir, or devisee. It is a construction of the law that has so long prevailed, that it would be now very dangerous to unsettle it, as many titles to land may depend upon it.
Although there may not have been any express determination of this point, yet a point has been determined which is within the reason of the case. A widow's right of dower commences with her marriage; it is held so sacred a right that no judgment, recognizance, mortgage, or any incumbrance whatever, made by the husband after the marriage, can at common law affect her right of dower: even the king's debt cannot affect her. Yet it has been held under our acts of Assembly, for making lands chattles for the payment of debts, that as to lands taken in execution after the death of the debtor, the widow is barred of her dower. If the widow whose right initiated with the marriage, shall lose her dower in favor of creditors, by much stronger reason the heir, whose right did not commence till the death of the debtor, should be barred from taking the land discharged of the debts.
II. the second question in this case is, whether, after a bona fide sale by one of the heirs, the purchasor is bound to contribute in aid of the other heirs, whose land remains unsold?
Where there is equal equity in two contending parties, it is always an unpleasant task to decide between them; and, in that case, there can be no satisfactory rule but the strictum jus. If there should, however, be any laches on one side, and none on the other, this, even on equitable principles, will have considerable weight in the decision.
The rules of contribution, as they appear in Herbert's case in 3 Co. 13, are these If a man is seized of three acres of land and enters into a recognizance, or statute, and enfeoffs A of one acre, and B of another, and the third descends to the heir; in this case, if execution is sued only against the heir, he shall not have contribution; for, coming to the land without consideration, he fits in the place of his ancellor, and shall not have contribution against any purchasor: But, if execution be sued against one of the purchasors, he shall have contribution against the other purchasor and the heir. So, *485 if judgment be obtained against a man that dies leaving two daughters, who make partition, in this case, if one only is charged, the shall have contribution; for, as one purchasor shall have contribution against another, so one heir shall have contribution against another heir, for they are in equal jure. The dictum, that the heir shall not have contribution against any purchasor, clearly means any purchasor from the ancestor, and cannot consistently with the case stated in Coke mean any other. If then, one parcener shall have contribution against another parcener, it is most clear, that one co-heir under our laws of descent, shall have contribution against another co-heir. But a distinction is made between a co-heir and a purchasor under him. Every purchasor, except in some special cases, stands in the shoe of the person he purchased from, and cannot have a better title than he had; and, as to contribution, he holding under one of the co-heirs, must be considered as in equali jure with the other co-heirs.
One of the special cases, where a purchasor stands in a more favorable light than the person purchased from, is where there is a secret truth, and the purchase is made without notice, and there the purchasor shall hold the land discharged of the truth. But there appears no similarity between that case and this, where the law of the land, having made real estates chattles for the payment of the debts of the ancestor, every purchasor from the heir must be presumed cognizant of it, and is bound to take care, if he will make the purchase, to be secured against such debts. If he neglects this, he seems to confide in the seller that he hath both the will and ability to do it.
The hardship upon purchasors may, in particular instances, be great, but it may generally be prevented by a proper caution. Where there has been a suspicion of outstanding debts, it has been very usual to make the purchase under an execution. At any rate, the fundamental security which the law has given to creditors should not be destroyed, or the title of co-heirs affected, by the omissions, or temerity, of purchasors.
It is here suggested, that there may be probably sufficient in the hands of the younger children to pay the debts, without calling on the purchasors. But, is it reasonable, is it just, or can it be legal, that the younger children should be stript of all their fortunes, and that the share alloted to the eldest son, who had no better right of exemption than they, should not bear part of the burthen? especially, as those younger children had no participation in the sale, or wasting the money; nor was it by any precaution whatever in their power to prevent either; whereas it was in the power of the purchasors to be indemnified, if they had thought proper. Such a doctrine would enable the elder son, in most cases, to lay the whole burthen upon the younger children, who are frequently helpless; and, during their minority at least, prevented from standing an equal chance with him.
*486 III. The remaining point to be considered, is, whether the purchasors under the order of the Orphan's Court are likewise bound to contribute? These purchasors, I acknowledge, appear to me to stand in a very different light from the voluntary purchasors from the eldest son. The law, for the benefit of the families and creditors of persons dying intestate, has vested the Orphan's Court with a power to direct the sale of certain parts of the intestate's real estate for the payment of his debts. The same law has directed the means of information to be given to the court, to prevent imposition and the unnecessary dismemberment of the real estate. The power given to the Orphan's Court by this act is very great, and ought to be discreetly exercised; but when the sale is made under their order, it is certainly a good one. The administrator is vested with as complete a power to sell the specified part of the real estate, as he has by the common law to sell the personal; and the purchasors from him ought to hold as securely in the one case, as the other. To say, that, because the administrator is to exhibit upon oath an account of the debts, therefore the purchasors are to look to the payment of those debts, is in effect saying, that the purchasors are to look to the legal exercise of the power vested in the Orphan's Court, who may, unquestionably, impose such terms upon the administrator, as are necessary to secure to the creditors and children, the consideration money arising from the sales; and such security has in fact been required in mar instances by the Orphan's Courts in Pennsylvania. Besides, if the purchasor is to look to the payment of the debts, he must, likewise, look to the other objects for which the land is to be sold; that is, the education and maintainance of the children, and the proper improvement of the residue of the estate; which no law founded in reason could require.
The case of these purchasors, however, is not regularly before the court; their lands have not been taken in execution, neither are they comprized within the rule.
The rule, as it stands, must be discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/818087/ | FILED
NOV 28 2012
1 SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
2
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. NV-11-1124-JuPaD
)
6 PATRICIA NIETO, ) Bk. No. 09-26688
)
7 Debtor. )
______________________________)
8 BAC HOME LOANS SERVICING, LP )
f/k/a COUNTRYWIDE HOME LOANS )
9 SERVICING, LP, )
)
10 Appellant, )
)
11 v. ) M E M O R A N D U M*
)
12 PATRICIA NIETO, )
)
13 Appellee. )
______________________________)
14
Submitted Without Oral Argument
15 on November 15, 2012**
16 Filed - November 28, 2012
17 Appeal from the United States Bankruptcy Court
for the District of Nevada
18
Honorable Bruce A. Markell, Bankruptcy Judge, Presiding
19 _________________________
20 Appearances: Ariel Edward Stern, Esq. and Heidi Parry Stern,
Esq. of Akerman Senterfitt LLP on brief for
21 appellant BAC Home Loans Servicing; David M.
Crosby, Esq. and Troy S. Fox, Esq. of Crosby &
22 Associates on brief for appellee Patricia Nieto.
_________________________
23
24
*
This disposition is not appropriate for publication.
25 Although it may be cited for whatever persuasive value it may
26 have (see Fed. R. App. P. 32.1), it has no precedential value.
See 9th Cir. BAP Rule 8013-1.
27
**
This case was submitted without oral argument pursuant to
28 a stipulation by the parties.
-1-
1 Before: JURY, PAPPAS, and DUNN Bankruptcy Judges.
2
3 BAC Home Loans Servicing, LP (“BAC”) appeals the bankruptcy
4 court’s determination of Debtor Patricia Nieto’s (“debtor”)
5 principal residence pursuant to 11 U.S.C. § 1322(b)(2)1, arguing
6 that the pertinent date for determining principal residence is
7 the loan origination date. The bankruptcy court held that plan
8 confirmation was the proper date for determination of a debtor’s
9 principal residence. While this appeal was pending, this Panel
10 decided that the petition date was the correct date for
11 determination of a debtor’s principal residence. Benafel v. One
12 West Bank, FSB (In re Benafel), 461 B.R. 581 (9th Cir. BAP
13 2011). While the bankruptcy court applied an incorrect legal
14 rule to resolve the issues in this appeal, because we agree with
15 the outcome, we AFFIRM.
16 I. FACTS
17 Debtor’s ex-husband purchased the residence at 816 Orr
18 Avenue, North Las Vegas, Nevada in February 1990. Debtor began
19 to occupy the residence at that time. In June 2000, as a result
20 of her divorce, debtor’s ex-husband transferred title of the
21 residence to debtor as her sole and separate property. In April
22 2006, debtor refinanced the residence with SFG Mortgage. BAC is
23 successor in interest to SFG Mortgage.
24 On June 1, 2006, debtor purchased a second residence at
25 5308 Coleman Street, North Las Vegas, Nevada (“Coleman
26
27
1
Unless otherwise indicated, all chapter and section
28 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
-2-
1 Property”). Shortly thereafter, debtor moved into the Coleman
2 Property and began to rent out the residence. On September 6,
3 2009, debtor filed for bankruptcy. On the petition date, debtor
4 resided in the Coleman Property.
5 On September 9, 2009, debtor filed her Chapter 13 plan.
6 BAC objected to debtor’s plan on grounds that the value of the
7 residence stated in the plan was too low and that the plan
8 failed to provide any evidence of value. On December 31, 2009,
9 debtor filed a Motion to Value Collateral for the residence.
10 Debtor sought to reduce BAC’s secured claim to the appraised
11 value of the residence. BAC opposed the motion, contending the
12 residence was debtor’s principal residence exempt from
13 modification pursuant to § 1322(b)(5). BAC argued that a
14 debtor’s principal residence is determined on the date the
15 creditor takes an interest in the property, and because debtor
16 listed the residence as her principal residence when she filled
17 out her loan application in 2006, BAC’s contractual rights were
18 exempt from modification pursuant to § 1322(b)(5).
19 On October 25, 2010, the bankruptcy court granted debtor’s
20 Motion to Value Collateral, holding the critical date for
21 determining a debtor’s principal residence under § 1322(b)(5) is
22 the plan confirmation date. On March 1, 2011, the bankruptcy
23 court issued an order confirming debtor’s Chapter 13 plan, which
24 relied in part on the valuation order. BAC timely appealed the
25 bankruptcy court’s confirmation order.
26 After BAC and debtor submitted their briefs on appeal, this
27 Panel held in a different appeal that the petition date was the
28 correct date for determination of a debtor’s principal
-3-
1 residence. Benafel, 461 B.R. 581. BAC and debtor were asked to
2 supplement their briefs in light of Benafel.
3 II. JURISDICTION
4 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
5 §§ 1334 and 157(b)(1). This Panel has jurisdiction under
6 28 U.S.C. § 158.
7 III. ISSUE
8 Whether the bankruptcy court erred in permitting debtor to
9 modify BAC’s rights in the residence.
10 IV. STANDARD OF REVIEW
11 We review the bankruptcy court’s construction of the
12 Bankruptcy Code de novo. Educ. Credit Mgmt. Corp. v. Mason
13 (In re Mason), 464 F.3d 878, 881 (9th Cir. 2006). We may
14 consider any issue evident on the record and may affirm on any
15 basis supported by the record. O’Rourke v. Seaboard Sur. Co.
16 (In re E.R. Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989).
17 We do not reverse for errors not affecting substantial rights of
18 the parties, and as noted, may affirm for any reason supported
19 by the record. Williams v. Levi (In re Williams), 323 B.R. 691,
20 696 (9th Cir. BAP 2005).
21 V. DISCUSSION
22 In Benafel, this Panel answered the legal question
23 presented in this appeal, deciding that the proper date for
24 determination of a debtor’s principal residence is the petition
25 date. 461 B.R. 581. The only question remaining then is
26 whether the bankruptcy court’s decision that the proper date is
27 the plan confirmation date constitutes reversible error.
28 On October 25, 2010, the bankruptcy court issued a
-4-
1 memorandum of decision. Therein, the bankruptcy court found,
2 “[w]hen she filed for bankruptcy, debtor was living in the
3 Coleman [Property] . . . .” BAC’s opening brief also
4 acknowledges debtor resided in the Coleman Property on the
5 petition date. For example, BAC states, “[o]n June 1, 2006,
6 Debtor purchased a second residence . . . . Debtor apparently
7 moved to the Coleman property and began to rent out the
8 [residence] around this time.” Given these statements, and with
9 no evidence to the contrary, the record supports a determination
10 that debtor did not reside in the residence on the petition
11 date. As a consequence, Benafel controls the outcome of this
12 appeal.
13 VI. CONCLUSION
14 While the bankruptcy court applied an incorrect legal rule,
15 because debtor did not reside in the residence on the petition
16 date, the bankruptcy court’s decision does not constitute
17 reversible error. We AFFIRM.
18
19
20
21
22
23
24
25
26
27
28
-5- | 01-03-2023 | 02-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2385319/ | 353 F. Supp. 2d 316 (2005)
Jack J. MINICONE, Jr. Movant,
v.
UNITED STATES of America, Respondent,
No. 89-CR-173.
United States District Court, N.D. New York.
January 26, 2005.
Edward Z. Menkin, Esq., Syracuse, NY, for Movant.
Glenn T. Suddaby, United States Attorney for the Northern District Of New York, Syracuse, NY, Edward R. Broton, Assistant U.S. Attorney, of Counsel.
MEMORANDUM DECISION AND ORDER
MUNSON, District Judge.
BACKGROUND
At the conclusion of a jury trial in the United States District Court for the Northern District of New York, Minicone was convicted in January of 1991, of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (Count One), and of conspiring to conduct and participate in the affairs of an enterprise *317 through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) (Count Two). These convictions were based on evidence at trial that Minicone and co-defendants Jack Zogby, Anthony Inserra, Benedetto Carcone, and Russell Carcone were involved in a wide-spread criminal enterprise, centered in Utica, NY, that spanned the period between the years 1973 and 1989 and included extortion, loansharking, illegal gambling, trafficking in stolen property and murder.
Among the activities in which Minicone was implicated was the 1976 murder of Al Marrone. Minicone, Zogby, and Inserra planned to kill Marrone shortly after his release from prison because he had threatened to kill them and their co-conspirator, Anthony Falange, and also because they feared that Marrone planned to take over their territory. The three began plotting the murder six months in advance. They interviewed several hitmen and ultimately hired Edward Noel to assist in the murder. Minicone, Zogby, Inserra and co-conspirator Dennis Pritchard met with Noel early in the fall of 1976 to plan the murder. On the night of October 2, 1976, while Minicone and Inserra kept their distance and monitored a police *299 scanner, Noel, Zogby and another man shot and killed Marrone on the sidewalk in front of his girlfriend's home.
Minicone also was involved in the attempted murder in 1983 of Thomas Bretti. Minicone had been assigned to kill Bretti and attempted to do so by planting a bomb on the front steps of Bretti's home. Bretti was seriously and permanently injured when the bomb exploded. Minicone also participated actively in other aspects of the illegal enterprise: he ordered Pritchard to steal money from two local bookmakers in 1973; regularly engaged in the extortion of local bookmakers; received bets and collected money on behalf of a bookmaking operation; actively engaged in loansharking; and conspired with others to kill Pritchard after Pritchard was suspected of being an informant. Although he started out as a low-level figure in the enterprise in the early 1970s, Minicone gained prominence and was working directly for the "boss," Anthony Falange, by the late 1980s.
The jury convicted Minicone of the RICO and RICO conspiracy counts, and found that he committed, or aided and abetted the commission of the underlying racketeering activity of murder in violation of New York Penal Law § 125.25, § 100.10, § 20.00 and § 105.15. Minicone was sentenced in compliance with the United States Sentencing Commission Guidelines Manual ("U.S.S.G.") § 2E1.1, Unlawful Conduct Relating to RICO. This section sets a base level of 19, or the offense applicable to the underlying racketeering activity. Application Note 2. of this guideline section directs that, "if the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used."
The language of the guidelines instructs the court to compare the conduct, not the titles of the statutes cited. United States v. Tolliver, 61 F.3d 1189, 1221 (5th Cir.1995). Different states have different labels for the same crime, therefore, depending upon which state murder statute is charged as the underlying offense of premeditated murder or killing with specific intent, inconsistent sentences for identical illegal conduct could be imposed in different states if the base offense level was computed merely by looking at the label of such statute and having that label be determinative of the most analogous federal offense, rather than looking at the actual substance of the underlying state statute to determine the most analogous federal offense. Id.
*318 When selecting the most analogous guideline in compliance with U.S.S.G. § 2X5.1, the courts have traditionally looked at definitions of the offenses, made factual findings concerning the defendant's conduct, and decided which guideline is most applicable to those facts. United States v. Rahman, 189 F.3d 88, 150 (2d Cir.1999). A sentencing judge's selection of a sufficiently analogous offense involves an application of a Guideline to the facts, a determination to which the Court of Appeals will give due deference to the district courts application of the guideline to the facts, rather than applying the "plainly unreasonable" standard. 18 U.S.C. § 3742(e); United States v. Rahman, 189 F.3d 88, 150 (2d Cir.1999), cert. denied, 528 U.S. 982, 120 U.S. 439, 145 L. Ed. 2d 344 (1999).
In calculating Minicone's base offense level, this Court applied United States Sentencing Guideline ("U.S.S.G.") § 2A1.1, entitled "First Degree Murder." The court determined that the most analogous federal offense to New York State's Second Degree Murder statute, N.Y. Penal Law § 125.25, was the federal first degree murder statute, 18 U.S.C. § 1111(a). This analogy, which must be drawn by the district judge pursuant to the Guidelines, does not implicate Apprendi, because Apprendi does not undermine the internal scheme of the Sentencing Guidelines. See, Apprendi v. New Jersey, 530 U.S. 466, 497 n. 21, 120 S. Ct. 2348, 147 L. Ed. 2d 435., 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Moreover, an Apprendi claim cannot be raised under § 3582 because such claims are barred on collateral review. United States v. Meadows, 2003 WL 22324905, 77 Fed.Appx. 575 (3d Cir.2003), cert. denied, 541 U.S. 1000, 124 S. Ct. 2045, 158 L. Ed. 2d 513 (2004).
Furthermore, in Blakely v. Washington, the United States Supreme Court ruled that a decision by a state trial judge under that state's Sentencing Guidelines that permitted the judge to increase a defendant's penalty for a crime beyond the statutory minimum based on facts neither admitted by the defendant or found by a jury, violated the defendant's Sixth Amendment right to a trial by jury. 542 U.S. ___, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403 (2004). In a decision rendered January 12, 2005, the United States Supreme Court found that a federal judge's use of the federal Sentencing Guidelines to enhance a sentence in the same manner as the state judge did in Blakely, was also Constitutionally invalid. United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621, 2005 WL 50108. The Court's opinion, however, made it clear that its decision will not apply retroactively to cases, such as the instant case, that have reached final resolution. Booker, at *769.
Since Minicone was convicted of two RICO violations and the central predicate racketeering act was the murder of Albert Marrone, this court selected the federal first degree murder statute as the most analogous statute to the state statute of conviction. This selection resulted in a base offense level of 43 under U.S.S.G. § 2A1.1(a). This sentencing computation was affirmed on appeal, and Minicone received a 480 month term of imprisonment, the statutory maximum.
DISCUSSION
Minicone now brings this motion seeking a re-sentencing under 18 U.S.C. § 3582(c) reducing his term of imprisonment. This remedy was inaccessible to him until November 1, 2000, the date when Amendment 591 of the U.S.S.G took effect. This amendment permits the sentencing court to reduce a defendant's term of imprisonment if his sentence was based on a sentencing *319 range subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). § 1B1.10 of the sentencing guidelines provides that, where the guidelines range applicable to a defendant has subsequently been lowered as a result of an amendment listed in subsection (c), a reduction is authorized under § 3582(c)(2) U.S. Sentencing Guidelines Manual § 1B1.10 (2003). Amendment 591 is one of the listed amendments that applies retroactively U.S.S.G. § 1B1.10(c).
The Commentary to Amendment 591 explains that the Amendment is a reaction to case law that selected an offense guideline based on actual conduct not underlying the offense of conviction. See United States v. Clay, 117 F.3d 317 (6th Cir.), cert. denied, 522 U.S. 962, 118 S. Ct. 395, 139 L. Ed. 2d 309 (1997). A sentencing court may still consider actual conduct in determining relevant conduct under U.S.S.G. § 1B1.3, but not in selecting the appropriate offense guideline under U.S.S.G § 1B1.2(a).
Minicone maintains that the court erred in making his base offense level 43, which resulted in a maximum sentence of 480 months imprisonment. The indictment alleged that he had committed murder in violation of New York Penal Law § 125.25, this crime is committed when a person "[w]ith intent to cause the death of another person, causes the death of such person or of a third person," and is Murder in the Second Degree. It is error to say that the federal first degree murder statute is the most analogous to the state statute. A conviction under the federal statute, 18 U.S.C, § 1111, compels a finding of guilt beyond a reasonable doubt of both malice aforethought and premeditation, neither of which are elements of New York Penal Law § 125.25. Consequently, in making this ruling, the court would have had to make findings of "actual conduct" of malice afterthought and premeditation, which the jury did not make or was asked to make, and this is exactly what Amendment 591 prohibits the sentencing court from doing. Upon this legal ground, Minicone asks the court to use its discretionary authority to correctly apply Amendment 591, and resentence him.
Minicone further argues that the District Court incorrectly applied the sentencing guideline for first-degree murder, Section 2A1.1, rather than the guideline for second-degree murder, Section 2A1.2, which has a 33 base offense level and considerably lighter sentence of, as the "most analogous" guideline pursuant to Section 2K2.1(c)(1). He contends that because New York State law classifies his crime as second-degree murder, that classification should determine the applicable federal sentencing guideline.
Minicone is correct that New York law would categorize the Marrone murder as a violation of New York Penal Law § 125.25 Murder in the Second Degree. (New York reserves first degree murder for intentional killing under special circumstances, e.g. where the victim is a police or peace officer, or a corrections officer, New York Penal Law § 125.27.). But Minicone disregards the fact that a state law classification of a murder does not determine the applicable federal sentencing guideline, and that the same conduct that constitutes second-degree murder under New York law also constitutes first-degree murder under federal law. First degree murder under Guideline § 2A1.1 involves "premeditated killing" and causing death "intentionally or knowingly." See Application Note 1. Moreover, the maximum sentence for both (§ 2A1.1), and second degree murder (§ 2A1.2) is life imprisonment. Concepcion v. United States, 181 F. Supp. 2d 206, 231 (E.D.N.Y.2002). Thus, contrary to Minicone's claim, the absence of reference to premeditation or malice *320 aforethought in New York Penal Law 125.25 does not mean that federal first degree murder is not the most analogous federal offense. Clearly, 1111's definition of federal first degree murder is analogous to that of § 125.25, therefore, the court finds no basis to disturb its finding under U.S.S.G. § 2E1.1 that the most analogous federal statute to New York Penal Law § 125.25 is the federal First Degree Murder Statute 18 U.S.C. § 1111.
Accordingly, Minicone's motion seeking reduction of his sentence under the terms of Amendment 591 is DENIED.
IT IS SO ORDERED | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2385530/ | 353 F. Supp. 2d 710 (2004)
GANGI SEAFOOD, INC.
v.
ADT SECURITY SERVICES, INC., et al.
No. CIV.A. 00-3715.
United States District Court, E.D. Louisiana.
June 28, 2004.
*711 Curt Christopher Kronlage, Kronlage & Kronlage, APLC, New Orleans, LA, for Gangi Seafood Inc, plaintiff.
Leslie A. Lanusse, Lisa Lemaire Maher, Adams & Reese, Robert Emmet Couhig, Jr., Jonathan Percy Lemann, Couhig Partners, LLP, James K. Carroll, Stephanie D. Skinner, Fowler, Rodriguez & Chalos, LLP, New Orleans, LA, for ADT Security Services, Inc., Certain Underwriters at Lloyds of London, defendants.
ORDER AND REASONS
LEMMON, District Judge.
IT IS ORDERED that defendant ADT Security Services, Inc.'s Motion for Summary Judgment (Document 63) is hereby GRANTED.
A. Background.
In March 1995 ADT contracted with Reuther's Seafood Co., Inc. to provide burglar and fire alarm services to a seafood processing facility Reuther owned at 600 Mazant Street in New Orleans, Louisiana. Under the contract ADT both installed burglar and fire alarms, and monitored those systems to dispatch municipal authorities when the alarms sounded. The *712 contract provided that the customer "agrees to pay $1,640.00 per annum, annually in advance for a period of five years effective from the date service is operable under this agreement." The contract was not assignable by Reuther without ADT's written consent.
Plaintiff Gangi Seafood, Inc. began operating at the 600 Mazant Street facility in October 1998, and formally purchased the facility in January 1999. Reuther had prepaid the annual amount due under the ADT contract, ensuring that monitoring service would extend through July 1999. Prior to Gangi taking over the premises in October 1998, a meeting occurred between Reuther; ADT employee Ed Jefferson; Michael Gangi, and Reuther's cousin, David Pippin. Reuther testified that he informed Jefferson that he wanted to assign the contract on the Mazant Street facility to Gangi, and that Jefferson told him that would be acceptable.[1] Reuther testified about what was discussed at this meeting:
When we all sat down, I explained to Ed over the phone previously what was going to be taking place between the facilities, who was going where and what was taking place. And I said, Look, we've got to change over the system that we have to the new people that are going to be operating and eventually owning this property. Look, is it easier let me just come out and meet him and I'll take care of it while I'm there. And I'll make sure I got a serviceman there.
I remember we had to stand around and talk a while because the serviceman was running late. We sat down, the four of us, talked about specifically what we were doing. That's when I started talking to Ed about can we change the contract and move it over. And he said, "No, it's going to be easier for me if the contract stays with the facility." So rather than trying to move a contract to a different facility, he said the pricing on this contract is based on servicing this facility, so let's go and do something different.
* * * * * *
[W]hat we decided to do, once I got that information from him, I said, "Well, look, let's just leave it on the property, let Mike use the remainder of the contract that's there, and then you negotiate with Mike on the new contract here." I said, "Is that okay with you?" He goes, "Man, that's great. Now I got a new customer."
And at that point and this is what hits me he reached over to Mike and shook his hand and says, "Welcome to the ADT family," like a good salesman should.[2]
Michael Gangi also recalled this meeting:
Well, Bubby [Reuther] called up ADT because he pays them for a year in advance, okay? A gentleman comes out. Bubby introduces me to him., which I don't remember his name.... And Bubby says, hey, he's buying the business, he's taking it over. I'm going to transfer over my policy, my contract with ADT to Mr. Gangi. And no problem. And he said he wants you to change the codes. I said, I want to change the codes. And I don't remember the exact code numbers, but he came there, changed the panel and everything.
* * * * * *
He changed the code and, you know, Bubby said he's going to transfer it over. Well, at that point I thought everything was transferred into my name. *713 And we even said when it comes up due, come see me or before it comes up due, come see me and we'll renegotiate the contract. I said, no problem. That was my last understanding, you know.[3]
Gangi testified that he never learned the expiration date of the prepaid term of the contract. When asked at his deposition about his understanding of the expiration date, Gangi stated that "Bubby just told me he just paid it in full, blah, blah, blah. I had no idea what day. I figured I'd get notice."[4] He also indicated that "That's like if you ask me when my insurance, my car insurance is due. I don't know until I get the bill..... I mean, I got enough bills coming to me. You know, I can't keep track of everything."[5]
ADT employee Jefferson also recalled the meeting. Jefferson "told him [Michael Gangi] what the current rate was for monitoring, and I informed him of how much time was left on the agreement, and he was aware, at that time, exactly what the current rate was and that he said that he thought that rate was a bit high."[6] Jefferson "told him that I would speak with my boss and see what I could do to give him a lower price."[7]
It is undisputed that no new contract was thereafter executed between Gangi and ADT. Gangi testified that Jefferson "never brought it [a new contract] back out to me. He was supposed to come negotiate before that contract run out to re-issue me a new thing."[8] Jefferson testified that he prepared a new contract for Gangi and dropped it off at the Mazant Street facility prior to the expiration of the term of the Reuther-ADT contract, but that he was never contacted about it.
When the prepaid term of the contract between Reuther and ADT was about to expire, ADT sent Reuther a letter reminding it to pay the new annual premium. On July 23, 1999, Reuther sent a fax to ADT noting "Reuther's Sea Food Co., Inc. no longer owns the building at 600 Mazant St., New Orleans, LA. Thank you." It is undisputed that no additional notice was provided to Gangi about the expiration of the contract. It is also undisputed that the local alarm service in place at the Mazant Street facility continued to operate, but that ADT's monitoring of the fire and burglar alarms ceased in July 1999.
The contract did not contain any provision requiring ADT to notify Reuther when the renewal amount was due. Reuther testified at his deposition that "[t]he way that that would normally work with ADT is every year when a contract would be about, I don't know, may be six weeks from being due, I'd get a phone call followed by a visit with a new proposal from whoever was calling on me from ADT at the time. And that changed almost yearly. Sometimes you would get a guy from Houston. Sometimes you'd get Ed Jefferson."[9] Jefferson testified at his deposition concerning ADT's policy regarding notice:
If a customer didn't pay his bill, then the Accounting Department had a procedure as far as they would try to find out why the customer wasn't paying his bill, and, at certain points, they would try to contact *714 the customer to see why he wasn't paying the bill, and if they didn't get any type of response, then they would send out a notice saying that if the bill isn't paid by this time, then your services will be discontinued ....[10]
A fire completely destroyed the facility at 600 Mazant Street in December 1999. Gangi sued ADT, alleging that if the monitoring service had been in operation, the damages would not have occurred, or would have been less severe. Additionally, Gangi added its insurer, Lloyd's of London, as a party plaintiff because Lloyd's had paid Gangi for the property damage it had sustained.
Gangi's primary argument is that "[b]y virtue of its own promise and assurance to Gangi, ADT owed Gangi a special duty to notify him when ADT's security contract his property neared expiration, so that a renewal contract could be signed."[11] Gangi argues alternatively that it detrimentally relied on ADT's promise to "notify Gangi when the contract neared expiration"; and that it was subrogated to the ADT-Reuther contract, and that ADT breached the contract by not providing notice of its termination.[12]
B. Analysis.
1. Summary judgment standards
Rule 56 provides that summary judgment "shall be rendered forthwith" if the pleadings and evidence demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Supreme Court has held that "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to prevent summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S. Ct. 2505. The inferences the court may draw from the underlying facts in the affidavits, depositions, and exhibits "must be viewed in the light most favorable to the party opposing the motion." McAvey v. Lee, 260 F.3d 359, 363 (5th Cir.2001) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)).
2. ADT's alleged liability in tort.
The Fifth Circuit Court of Appeals has held that under Louisiana law, the test for determining liability for negligent conduct has five components:
(1) Was the conduct of another of which the plaintiff complains a cause-in-fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Whether the requisite duties were breached?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
(5) Were actual damages sustained?
Bursztajn v. United States, 367 F.3d 485, 489 (5th Cir.2004). The issue of whether a duty exists is a question of law, and the issue of whether a defendant "has breached a duty is a question of fact." Id. at 489 (italics in original). In determining whether a duty exists, the court must consider several factors:
In deciding whether to impose a duty in a particular case, the court must make a *715 policy decision in light of the unique facts and circumstances presented. The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and on similarly situated parties; the need for an incentive to prevent future harm; the nature of defendant's activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving.
Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La.1999); see also Bursztajn, 367 F.3d at 489 ("To determine whether a duty exists, a court is required to make a policy determination based on `various moral; social; and economic factors.'").
The fundamental issue in this case is whether, as a matter of law, an alarm monitoring company has a duty to notify a premises owner when the monitoring contract covering the premises has lapsed. Gangi alleges that ADT "was grossly negligent in failing to notify, either informally or formally, Gangi or Reuther that the business was no longer being monitored regarding security breaches and fire alarms. ADT's negligence was the proximate cause in the fire consuming the plaintiff's business."[13] Gangi specifically argues that a duty exists because:
advance notice and warning prior to termination of recurring contract and consumer service has been of such long standing, and so universally applied, that it is expected and relied upon by consumers. Consider, for example, the warnings and notices of delinquency and threat of termination give by holders of mortgage notes, suppliers of electricity, gas and water, telephone and television services, credit card companies, insurers of life and property, and bankers.[14]
The court finds that no such duty exists. In the examples cited by Gangi, a statutory or contractual provision often requires notice to the contracting party that a service is about to expire. In other cases, the notification is a courtesy or a marketing tool to encourage a renewal of the contract. There is no duty requiring ADT to notify Gangi of the termination of its monitoring service.
3. Detrimental Reliance.
Gangi argues that it detrimentally relied on ADT's alleged promise to notify it when the contract neared expiration. Article 1967 of the Louisiana Civil Code codifies the theory of detrimental reliance, stating that "[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment." To recover for detrimental reliance, "the party must prove the existence of a promise and reasonable reliance on that promise to the party's detriment. In addition, a claim of detrimental reliance must meet three requirements: (1) a representation by conduct or word; (2) justifiable reliance thereon; and (3) a change in position to one's detriment because of the reliance." Service Steel and Pipe, Inc. v. Guinn's Trailer Sales, Inc., 850 So. 2d 902, 907 (La.App. 2d Cir.2003).
Gangi's argument fails at the first prong of the test. There is no evidence to support Gangi's argument that ADT made any representations that it would notify Gangi of the termination of the contract.
4. ADT's alleged liability for breach of contract.
Gangi argues that when it purchased the Mazant Street facility, it became *716 subrogated to all of Reuther's rights under the contract between ADT and Reuther, including the right to receive notice of the contract's expiration. Assuming Gangi did become subrogated to Reuther's rights, he had no greater rights in the contract than Reuther. The contract contained no provision requiring notice. ADT did not breach the contract by failing to notify Gangi of its expiration.
C. Conclusions.
ADT's motion for summary judgment is granted.
JUDGMENT
Considering the written Order and Reasons (record document # 90) of the court;
IT IS ORDERED, ADJUDGED, AND DECREED, that there be judgment in favor of defendant ADT Security Services, Inc. and against plaintiff Gangi Seafood, Inc., dismissing plaintiff's claims against ADT Security Services, Inc.
NOTES
[1] Depo. Clarence G. Reuther, November 12, 2003, at 37.
[2] Id. at 41-43.
[3] Depo. Michael A. Gangi, September 20, 2002, at 167-68.
[4] Id. at 170.
[5] Id. at 171.
[6] Depo. Edward L. Jefferson, November 3, 2002, at 88.
[7] Id. at 90.
[8] Depo. Gangi at 169.
[9] Depo. Reuther at 39.
[10] Depo. Jefferson at 43-44.
[11] Document 72 at p. 3.
[12] Id. at pp. 5, 7.
[13] Petition at ¶ 6.
[14] Document 72, at pp. 3-4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2385660/ | 431 A.2d 457 (1981)
OKEMO MOUNTAIN, INC.
v.
OKEMO TRAILSIDE CONDOMINIUMS, INC.
No. 456-79.
Supreme Court of Vermont.
April 7, 1981.
Motion for Reargument Denied April 28, 1981.
*458 Fink & Birmingham, P.C., Ludlow, for plaintiff.
David F. Buckley, Bellows Falls, for defendant.
Before LARROW, BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.
LARROW, Justice.
In 1975 Okemo Trailside Condominiums, Inc. executed and delivered to Okemo Mountain, Inc. a promissory note for $15,000.00. The note provided for semi-annual payments over two and one-half years. The note also provided in the event of default that the balance of the note would become due along with interest, costs and attorneys fees.
Trouble developed when the second payment became due. The defendant, Trailside, claimed an offset for certain property damage caused by the alleged failure of the plaintiff, Okemo Mountain, to maintain a culvert properly. The defendant subtracted the amount claimed for damage from the amount of its second payment. The plaintiff refused to accept the reduced amount and commenced an action to recover upon the note. The defendant then paid the whole amount of the second payment and maintained its property damage claim as a counterclaim.
Settlement negotiations ensued. During the course of these negotiations the president of the defendant sent a letter to the plaintiff which proposed a plan for the extinguishment of the note. In brief the proposal was for the defendant to convey a specified parcel of land, cash in the amount of $2,500.00, and to give up its counterclaim for damages in return for extinguishment of the note. The president of the plaintiff indicated a willingness to accept these terms, but added that there should be an exchange of general releases. No response was made to this proposal for ten months. Following a change in the plaintiff's board of directors and default on the third payment, another action, the subject of this appeal, was commenced to recover on the note. Before service, the secretary of the defendant wrote to the plaintiff's board of directors advising them of the alleged agreement and explaining that more time would be needed to secure a release from Vermont Federal Savings and Loan for the parcel of land. The plaintiff's board of directors disavowed any knowledge of the agreement and stated that is was in any event unacceptable. Several months later both the plaintiff's and the defendant's claims in the original action were dismissed pursuant to a stipulation between the parties. The present action continued. Judgment was rendered for the plaintiff, and the defendant filed a motion to introduce additional evidence and a motion to amend *459 the findings of fact and conclusions of law and judgment. Both motions were denied, and the defendant has appealed.
The defendant's first argument is that its offer to extinguish the note was accepted by the plaintiff, forming a contract between the parties which superseded the provisions of the note. However, what the defendant denominates as an acceptance by the plaintiff clearly contains an additional term pertaining to general releases. It has long been the law in Vermont and elsewhere that an "acceptance of an offer, to be good, must in every respect meet and correspond with the offer .... An acceptance on terms varying from those proposed is, in effect, a counter proposal, and is not binding until it is itself accepted." (citations omitted). Hill v. Bell, 111 Vt. 131, 134-35, 11 A.2d 211, 213 (1940).
The defendant therefore must show an acceptance by it of the plaintiff's counteroffer. Such an acceptance may be accomplished either expressly or by conduct. Bachli v. Hott, 124 Vt. 159, 163, 200 A.2d 263, 267 (1964). Furthermore, such acceptance must have occurred within a reasonable time, for after such a time the offer would lapse and any acceptance would be impossible. United States v. Roberts, 436 F. Supp. 553 (E.D.Tex.1977); 1 Williston on Contracts § 54, at 172 (3d ed.1957).
Of the correspondence introduced into evidence, the earliest purported express acceptance to which the defendant refers is a letter to the plaintiff some ten months after the counteroffer. The only act performed by the defendant up until the time of trial was the dismissal of its counterclaim, and this occurred almost one year after the plaintiff's counteroffer. To make matters worse, the dismissal of the counterclaim came after the plaintiff had already indicated a refusal to enter into the agreement.
The time for acceptance here had clearly lapsed, due to the passage of more than a reasonable amount of time. In the absence of a superseding contract between the parties, the original note provides a proper basis for the action by the plaintiff. Our holding that there was not a valid acceptance by the defendant obviates the need to consider the claim that the plaintiff is not entitled to interest, costs, and attorneys fees not here in issue as provided for in the note.
The defendant's next claim is that the trial court erred in denying a post-trial motion to introduce additional evidence, a letter not offered at trial. The explanation proffered is that the defendant believed it to be unnecessary, because of what was perceived to be the strength of its case in other respects. While V.R.C.P. 60(b)(1) permits relief from judgment for reasons of mistake or inadvertence, it does not operate to protect a party from tactical decisions which in retrospect may seem ill advised. Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882 (1975); Federal's, Inc. v. Edmonton Investment Co., 555 F.2d 577 (6th Cir. 1977). Beyond this, the letter by its terms was at best a conditional acceptance, asking additional time to clear title. It would not have established defendant's claim of a valid contract.
The defendant's final claim of error is that the trial court erred in its refusal to give the defendant time to submit briefs. However, as the defendant acknowledges, the giving of permission to file such briefs in purely discretionary, and if the trial court feels them unnecessary there is no reason to withhold findings until after their submission.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2385657/ | 626 S.W.2d 402 (1981)
Lorain FRICKLETON, and James W. Frickleton,
Plaintiffs-Garnishors-Respondents,
Walter J. Fischer and Marty Murray, Plaintiffs-Garnishors-Appellants,
v.
Robert P. FULTON, Defendant,
v.
FARMERS INSURANCE COMPANY, INC.,
Garnishee-Appellant-Respondent.
Nos. 11965, 11970.
Missouri Court of Appeals, Southern District, Division One.
November 24, 1981.
Motion for Rehearing or to Transfer Denied December 16, 1981.
*403 Donald E. Bonacker, Jerry L. Reynolds, Bonacker & Reynolds, P.C., Springfield, for Lorain Frickleton and James Frickleton.
Thomas Strong, Matthew W. Placzek, Strong & Placzek, P.C., Springfield, for Marty Murray and Walter J. Fischer.
Warren S. Stafford, Taylor, Stafford & Woody, Springfield, for Farmers Insurance Co., Inc.
FLANIGAN, Judge.
These two appeals, one by Farmers Insurance Company, Inc., ("Farmers"), and the other by Walter Fischer and Marty Murray, stem from three garnishment actions against Farmers which were consolidated for a four-day trial before a jury. Fischer and Murray filed separate garnishment actions. The third garnishment action was filed jointly by James Frickleton and his wife Lorain Frickleton.
On November 14, 1974, a collision occurred which involved a vehicle operated by Robert P. Fulton who carried a policy of liability insurance with Farmers. The principal issue, between Farmers on the one hand and the four garnishors on the other, was whether the bodily injury limits of the *404 policy were 15/30 ($15,000 for all damages arising out of bodily injury sustained by one person in any one occurrence and $30,000 for all damages arising out of bodily injury sustained by two or more persons in any one occurrence) or 25/50 ($25,000one person; $50,000one occurrence). Farmers took the position that the limits were 15/30 and the garnishors asserted that the limits were 25/50. This issue was submitted to the jury which found that the limits were 25/50. Farmers appeals from that finding which the trial court incorporated in the judgment in all three actions.
Service of the garnishment documents upon Farmers was accomplished in the Frickleton garnishment approximately a month before it was accomplished in the Fischer and Murray garnishments. In making distribution of the proceeds the trial court held that the Frickletons were entitled to priority over Murray and Fischer. The latter two appeal from that determination.
As a result of the collision of November 14, 1974, four people sustained bodily injuries. They were Murray, Fischer, James Frickleton and Lorain Frickleton. Three lawsuits, one by James and Lorain Frickleton (No. 3198), one by Fischer (No. 3208) and one by Murray (No. 3209), were filed against Fulton in the Circuit Court of Taney County. The three cases were consolidated for trial and on February 2, 1978, that trial culminated in jury verdicts in favor of all four plaintiffs.
In addition to making claims for their own injuries, each of the Frickletons asserted a derivative claim based on injuries to the respective spouse. Judgments against Fulton and in favor of the respective plaintiffs were entered on the day of the verdicts as follows:
(1) Lorain Frickleton$48,133 ($41,300 for her injuries and $6,833 on her derivative claim);
(2) James Frickleton$26,210 ($15,840 for his injuries and $10,370 on his derivative claim);
(3) Walter Fischer$24,580; and
(4) Marty Murray$70,416.[1]
On May 19, 1978, Farmers issued four drafts totaling $30,000, plus interest at the legal rate accruing since February 2, 1978. The $30,000 was distributed pro rata among the four plaintiffs based upon the amounts of their respective judgments.[2] The four drafts were delivered to the attorneys for the respective plaintiffs on May 19.
When originally issued the Fulton policy had liability limits of 25/50. It was the trial theory of Farmers that Fulton had requested a reduction to 15/30 and that Farmers effected the reduction prior to the collision. Under this theory the payments of May 19, 1978, exhausted the policy coverage.
All four garnishors took the position, however, that the policy limits were not reduced prior to the collision and that the coverage available for payment of the judgments was 25/50. With regard to the division of that coverage, however, Fischer and Murray parted ways with the Frickletons. Essentially it was the Murray-Fischer theory that Farmers was entitled to credit for the $30,000 already paid and that the additional *405 $20,000 should also be distributed pro rata among the four plaintiffs. It was the theory of the Frickletons, which the trial court adopted, that the Frickletons had priority over the other two plaintiffs in seeking partial satisfaction of their judgments out of the $50,000 coverage. It was also the trial theory of the Frickletons, adopted by the trial court and reflected in instructions given on Frickleton's behalf, that no matter whether the policy limits were 15/30 or 25/50 Farmers was entitled to credit for the amounts of the Frickleton drafts but was not entitled to credit for the amounts of the Fischer and Murray drafts.
After the jury returned its verdict finding that the policy limits were 25/50, the trial court, in Case No. 3198, awarded Lorain Frickleton judgment against Farmers in the amount of $23,723.26 ($23,305.79 as principal and $417.47 as interest). In the same case James Frickleton was awarded judgment against Farmers in the amount of $11,397.21 ($11,196.65 as principal and $200.56 as interest). These calculations[3] gave credit to Farmers for the amount of the Frickleton drafts, but gave no credit to Farmers for the Fischer and Murray drafts. The judgment of the trial court then recited that after the foregoing amounts had been paid, there remained available, under a coverage of 25/50, the sum of $2,327 for application to the Fischer and Murray judgments. As to the latter judgments only, Farmers was given credit for the Fischer and Murray drafts respectively and the judgments recite that "after applying such credit the court finds that Farmers has made payments exhausting the personal injury coverage and the court will direct that Fischer and Murray take nothing in this action against Farmers." Fischer and Murray were denied relief in their respective garnishments and as intervenors in the Frickleton garnishment.
The dispositive issue on this appeal is this: After the Fischer and Murray drafts were issued [see § 400.3-102(1)(a)][4] by Farmers on May 19, 1978, and delivered on that date to the attorneys for Fischer and Murray, were the amounts represented by those drafts subject to garnishment on May 22, 1978, when Farmers was served with the Frickleton garnishment documents? Resolution of this issue requires consideration of the nature of the drafts involved and the sequence of the material events. This court holds that the amounts represented by the Murray and Fischer drafts were not subject to the subsequent Frickleton garnishment and that the Frickleton trial instructions, based on the theory that they were so subject, were prejudicially erroneous to Farmers.
The material events were as follows:
May 19, 1978The four claims drafts were delivered to their respective payees and their attorneys. Draft 774309 was drawn on Farmers, payable to the order of Marty Murray (and his attorneys), was in the amount of $12,720.94, was "payable through" Commerce Bank of Kansas City, was dated May 18, 1978, and was signed by Robert O. Biser, Farmers claims representative.[5] The draft contained additional information including the policy number of the Fulton policy, the date of the accident, and identification of Fulton as the named insured. The other drafts, except for their payees and amounts, were similar.
May 21, 1978In Case No. 3198, at the instance of the attorney for the Frickletons, the circuit clerk of Taney County issued general executions against Fulton and in favor of Lorain Frickleton in the amount of $48,133 and in favor of James Frickleton in the amount of $26,210.
*406 May 22, 1978In Case No. 3198, at the instance of the attorney for the Frickletons, the sheriff of Cole County served upon the Superintendent of Insurance a summons to garnishee addressed to Farmers in aid of the James Frickleton execution. The summons stated, in part, "I do hereby seize and attach in your hands all debts due or to become due by you to Robert P. Fulton, the defendant in the above entitled cause, or so much thereof as will be sufficient to satisfy the sum of $26,210 with interest and costs of suit." On the same date the sheriff also delivered to the superintendent a summons in aid of the Lorain Frickleton execution. That summons was similarly worded except that the sum to be satisfied, with interest and costs, was $48,133.
May 23, 1978Walter Fischer executed a partial satisfaction of judgment ($4,354.58 plus $85.90 interest) and this document was later filed with the circuit clerk.
May 25, 1978Lorain Frickleton executed a partial satisfaction of judgment ($8,527.21 plus $168.21 interest) and James Frickleton executed a partial satisfaction of judgment ($4,643.35 plus $91.59 interest). These documents were later filed with the circuit clerk.
May 26, 1978Marty Murray executed a partial satisfaction of judgment ($12,474.86 plus $246.08 interest) and it was later filed with the circuit clerk.
"Some date after May 22, 1978" but within a few days thereof, the four drafts arrived at Commerce Bank of Kansas City and were delivered by that bank to Farmers the next day. Farmers gave that bank a draft drawn on the Bank of America in California for the total amount of the four drafts, and others.
June 21, 1978In Case No. 3208 and Case No. 3209, at the instance of the attorney for Fischer and Murray, the circuit clerk of Taney County issued a general execution against Fulton and in favor of Fischer for $15,225.42 and in favor of Murray for $52,941.14.
June 23, 1978In Case No. 3208 and Case No. 3209 garnishment documents were served on Farmers.
Thereafter the court entered an order allowing plaintiffs Fischer and Murray to intervene in the garnishment action in Case No. 3198 and consolidated the three garnishment actions.
"[A]fter an injured person has obtained a judgment against an insured defendant, the judgment creditor stands in the shoes of the insured person and his rights are no greater and no less than the insured's rights would have been if he had paid the judgment and then sued his insurance company to recover the amount so paid." Greer v. Zurich Insurance Company, 441 S.W.2d 15, 30 (Mo.1969). "[A] garnishee can only be compelled to deliver assets of defendant to plaintiff if the garnishee is indebted to the defendant." Geiwitz v. Geiwitz, 473 S.W.2d 781, 783 (Mo. App.1971).
Farmers' first point attacks Instruction 7 [6] and Instruction 10[7] which the trial court gave at the request of the Frickletons. Each of these instructions was based on the *407 theory that the summonses to garnishee, served on May 22, 1978, on behalf of the Frickletons in Case No. 3198, had the effect of garnishing the full policy limits for the benefit of the Frickletons and that Farmers was not entitled to take credit for the amounts represented by the drafts issued to Fischer and Murray.[8]
In its first attack on the two instructions Farmers asserts that it, as garnishee, was entitled to credit for the four claim drafts delivered to the attorneys for the respective plaintiffs on May 19, 1978, because "said claim drafts were negotiable instruments and Farmers was liable on said drafts, payment could have been enforced, and delivery of the claims drafts was conditional payment rendering the funds represented by the claims drafts without the control of garnishee and not subject to garnishment."
Seeking to uphold Instructions 7 and 10, the Frickletons argue that "all amounts" of the policy coverage "were unpaid and in [Farmers'] control at the time of the service" of the garnishment documents because "`payable through' drafts delivered before service required acceptance by law and were not payable until [Farmers] delivered funds to the [Commerce] bank which was after the service of the Frickleton garnishment summonses." The Frickletons also argue that the Murray and Fischer drafts were not "negotiable instruments." The Frickleton arguments are unsound.
Before discussing the nature of "payable through" drafts it is worthwhile to consider the garnishability of the amounts represented by the Murray and Fischer drafts if they had been "checks"[9] and not "payable through" drafts. In Prewitt v. Brown, 101 Mo.App. 254, 73 S.W. 897, 898 (1903), the court held that a buyer, who in good faith had given his check to a seller for the purchase price of an article, was not subject to garnishment as the debtor of the seller (judgment debtor) because, as garnishee, the buyer was under no obligation to stop payment of the check unless the buyer knew before delivery of the check that the seller had sold his property in fraud of his creditors.
"The reason of this rule is that the drawer of a check is under no duty or obligation to stop payment when garnished, for the benefit of the garnishing plaintiff; has no moral right to do so. He gave the check in lieu of cash to the seller, with the understanding that the seller would get cash when he presented it for payment. To countermand the check would, therefore, be in derogation of an implied agreement that it should be honored when presented." Prewitt, 73 S.W. at 898.
The Prewitt decision is in accord with the general view that the drawer of a check is under no duty or obligation to stop payment, when garnished, for the benefit of the garnishing plaintiff. See 6 Am.Jur.2d Att. and Garn. § 517, p. 928; 38 C.J.S. Garnishment § 96, p. 305; 94 A.L.R. 1391 (Indebtedness as subject to garnishment after debtor has given his check therefor).
The Prewitt rule with respect to checks has been followed in jurisdictions where the Uniform Commercial Code has been adopted. See Pearson Grain Co. v. Plains Trucking Co., Inc., 494 S.W.2d 639 (Tex.Civ.App. 1973). In a pre-UCC case the same rule *408 was invoked with respect to a draft issued by an insurance company. Creditors' Claim & Adjustment Co. v. Larson, 171 Wash. 575, 18 P.2d 844 (1933). Indeed in the latter case the insurance company stopped payment but that act was ineffective to give the garnishor rights superior to those of the holder of the draft. The insurance company was entitled to an adjudication that it was not liable under the writ of garnishment for the indebtedness evidenced by the draft.
Is there a valid reason why the Prewitt rule should not apply to the Murray and Fischer drafts? This court answers the question in the negative.
Sec. 400.3-120 reads:
"An instrument which states that it is `payable through' a bank or the like designates that bank as a collecting bank to make presentment but does not of itself authorize the bank to pay the instrument."
The "Official Comment" under the foregoing statute reads, in pertinent part:
"Insurance, dividend or payroll checks, and occasionally other types of instruments, are sometimes made payable `through' a particular bank. This section states the commercial understanding as to the effect of such language. The bank is not named as drawee, and it is not ordered or even authorized to pay the instrument out of the drawer's account or any other funds of the drawer in its hands. Neither is it required to take the instrument for collection in the absence of special agreement to that effect. It is merely designated as a collecting bank through which presentment is properly made to the drawee."
The Murray and Fischer drafts were of the "payable through" variety. A "payable through" draft is a negotiable instrument[10] (even if it contains the words "upon acceptance").[11] It has the status of a note [12] or an accepted bill of exchange.[13] It is accepted by the very act of issuing it.[14] Presentment and acceptance are not necessary to make the draft the liability of the drawer to the payee or holder.[15] Stopping payment would not absolve the drawer-drawee [Farmers] from liability to a holder in due course.[16] Indeed, there are statements *409 that as drawer Farmers could not countermand the drafts.[17]
"A payee may be a holder in due course," § 400.3-302(1), (2), and the Frickletons make no claim that Murray and Fischer were not such holders. There is not the slightest evidence, nor indeed any contention, that either Farmers or the payees of the Murray and Fischer drafts were guilty of fraud or sharp practice.
It follows that the amounts represented by the Murray and Fischer drafts were no longer, to employ the language of the garnishment summonses served on Farmers on May 22, "debts due or to become due by [Farmers] to [Fulton]." The amounts represented by those drafts (as well as the amounts of the other two drafts issued on May 19), were not subject to garnishment on May 22. In light of the foregoing, Instructions 7 and 10 are erroneous.
The first sentence of Instruction 7 told the jury, erroneously, that Farmers "is liable to Lorain Frickleton in this case." That statement was false if in fact the policy limits were 15/30. Yet, under Instruction 7, the jury did not have the option of finding in favor of Farmers. The instruction contradicts the fact that the verdict should have been in favor of Farmers if the jury found the policy limits to be 15/30.
The four drafts issued on May 19 were admitted into evidence and the jury was aware of them. They totaled $30,000 (plus interest). Nevertheless Instruction 7 told the jury that Lorain Frickleton was entitled to more money from Farmers, over and above the $30,000 previously expended. The figure of $6,588.33 was inserted in Instruction 7 on the erroneous theory that Farmers was not entitled to credit for the Murray-Fischer drafts. Instruction 10 was based on the same erroneous theory.
It is clear that these two instructions prejudiced Farmers in seeking to maintain its position that the policy limits were 15/30. If that position was sound, an issue this court does not reach, how could Farmers explain the fact to the jury that Farmers was required to pay the Frickletons more money? The jury might believe, in light of the tenor of Instructions 7 and 10, that Farmers was guilty of some impropriety in having issued the Murray-Fischer drafts and in making no effort to interfere with their handling.
The prejudice to Farmers arising by reason of Instructions 7 and 10[18] tainted the trial of the major issue, 15/30 or 25/50. Although the Murray-Fischer instructions did not contain the errors of Instructions 7 and 10, Farmers' position with respect to that issue was prejudiced in the Murray-Fischer-Farmers dispute as well as the Frickleton-Farmers dispute. For this reason it is necessary to reverse the judgments in all three garnishment actions and to remand. Rule 84.14.
No party to these appeals claims that the present record is a basis for deciding the 15/30-25/50 issue as a matter of law. The resolution of that issue involves matters of fact for jury determination.
On these appeals it is not necessary to determine the respective rights of the Frickletons and Murray and Fischer to the additional $20,000 coverage in the event the policy limits are ultimately determined to be 25/50. There is no need to decide whether a pie will be shared simultaneously or consecutively until it is determined that a pie exists.
Reversed and remanded.
GREENE, P. J., and TITUS, J., concur.
NOTES
[1] The judgments of Fischer and Murray were credited with $5,000 each due to payments Farmers had made on their behalf under medical expense insurance.
[2] The drafts were as follows:
Lorain Frickleton$8,695.42 ($8,527.21 principal, $168.21 interest);
James Frickleton$4,734.94 ($4,643.35 principal, $91.59 interest);
Walter Fischer$4,440.48 ($4,354.58 principal, $85.90 interest);
Marty Murray$12,720.94 ($12,474.86 principal, $246.08 interest).
Included as additional payees on each draft were the attorneys for the respective plaintiffs.
None of the parties, in their respective briefs, challenges the conduct of Farmers in making the prorata distribution if the policy limits were in fact 15/30. See 7A Am.Jur.2d Auto. Ins. § 429, p. 73; 70 A.L.R. 2d 416 (Basis and manner of distribution among multiple claimants of proceeds of liability insurance policy inadequate to pay all claims in full); Appleman, Ins.Law & Pract., Vol. 8A, § 4892, p. 42.
[3] None of the parties questions the mathematical accuracy of these calculations or those reflected in the drafts mentioned in footnote 2.
[4] All references to statutes are to RSMo 1978, V.A.M.S. and all references to rules are to Missouri Rules of Court, V.A.M.R.
Sec. 400.3-102(1)(a) is contained in "Uniform Commercial CodeCommercial Paper." It reads: "(1) In this article unless the context otherwise requires
(a) `Issue' means the first delivery of an instrument to a holder or a remitter."
[5] Mr. Biser signed all four drafts. The parties agree that he had authority to do so.
[6] INSTRUCTION NO. 7
Under the law Farmers Insurance Company is liable to Lorain Frickleton in this case. Therefore, you must find the issues in favor of Lorain Frickleton and against Farmers Insurance Company in at least the amount of Six Thousand Five Hundred Eighty-eight Dollars Thirty-three Cents ($6,588.33), but if you find that the limit of liability was Twenty-five Thousand Dollars ($25,000.00) per person, then your verdict must be in the amount of Twenty-three Thousand Seven Hundred Twenty-three Dollars Twenty-six Cents ($23,723.26) instead of Six Thousand Five Hundred Eighty-eight Dollars Thirty-three Cents ($6,588.33).
[7] INSTRUCTION NO. 10
Under the law Farmers Insurance Company is liable to James W. Frickleton in this case. Therefore, you must find the issues in favor of James W. Frickleton and against Farmers Insurance Company in at least the amount of Ten Thousand Five Hundred Forty-one Dollars Ninety-five Cents ($10,541.95), but if you find that the limit of liability was Twenty-five Thousand Dollars ($25,000.00) per person then your verdict must be in the amount of Eleven Thousand Three Hundred Ninety-seven Dollars Twenty-one Cents ($11,397.21) instead of Ten Thousand Five Hundred Forty-one Dollars Ninety-five Cents ($10,541.95).
[8] The brief of the Frickletons asserts, and Farmers does not dispute the assertion, that the figures set forth in Instructions 7 and 10 give Farmers credit for the payment of the $8,695.42 draft paid to Lorain Frickleton and the $4,734.94 draft paid to James Frickleton. The Frickleton brief also says that if the coverage limit was 25/50, James Frickleton "by his submission, ... waived his derivative damages judgment [of $10,370] in favor of Lorain's writ of garnishment and computed his recovery [on his judgment of $15,840.00 for his injuries]." Farmers does not dispute that contention.
[9] Although a "check" is a draft, not all drafts are checks. See § 400.3-104.
See, generally, 23 A.L.R. 3d 932 (Construction and effect of UCC Art. 3, dealing with commercial paper.)
"A draft or bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay a sum certain to order or to bearer. Such a draft becomes a check when it is drawn on a bank and payable on demand." 23 A.L.R. 3d 932, 940.
[10] Sec. 400.3-104; U.A.W.-C.I.O. Local # 31 v. Royal Insurance Co., Ltd., 594 S.W.2d 276, 279 (Mo. banc 1980); Aetna Cas. & Sur. Co. v. Traders Nat. Bank & T. Co., 514 S.W.2d 860, 864 (Mo.App.1974); Lialios v. Home Ins. Companies, 87 Ill.App.3d 740, 43 Ill. Dec. 193, 194, 410 N.E.2d 193, 194 (1980).
For a discussion of some of the reasons insurance companies may use "payable through" drafts instead of checks, see Aetna Cas. & Sur. Co. v. Traders Nat. Bank & T. Co., supra, 514 S.W.2d at 865.
[11] Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 710, 714 (Ark.App.1979) (adopted as opinion of Supreme Court of Arkansas, Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 709 (Ark.1980).
[12] U.A.W.-C.I.O. Local # 31 v. Royal Insurance Co., Ltd., 594 S.W.2d 276, 279 (Mo. banc 1980); § 400.3-118(a).
[13] Lialios v. Home Ins. Companies, 87 Ill. App. 3d 740, 43 Ill. Dec. 193, 194, 410 N.E.2d 193, 194 (1980); Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 710, 714 (Ark. App.1979) (adopted as opinion of Supreme Court of Arkansas, Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 709 (Ark.1980).
[14] Lialios v. Home Ins. Companies, 87 Ill. App. 3d 740, 43 Ill. Dec. 193, 194, 410 N.E.2d 193, 194 (1980); Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 710, 714 (Ark. App.1979) (adopted as opinion of Supreme Court of Arkansas, Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 709 (Ark. 1980); Falk's Food Basket v. Selected Risks Ins. Co., 214 Pa.Super. 522, 257 A.2d 359 (1969).
[15] Lialios v. Home Ins. Companies, 87 Ill. App. 3d 740, 43 Ill. Dec. 193, 194, 410 N.E.2d 193, 194 (1980); Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 710, 714 (Ark. App.1979) (adopted as opinion of Supreme Court of Arkansas, Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 709, 713-14 (Ark.1980); Lee v. Skidmore, 49 Ohio App. 2d 347, 361 N.E.2d 499, 500 (1976); Falk's Food Basket v. Selected Risks Ins. Co., 214 Pa.Super. 522, 257 A.2d 359, 360 (1969).
[16] U.A.W.-C.I.O. Local # 31 v. Royal Insurance Co., Ltd., 594 S.W.2d 276, 280 (Mo. banc 1980); Gen. Motors Accept. v. Gen. Acc. Fire & Life, 67 A.D.2d 316, 415 N.Y.S.2d 536, 538 (1979); National Security Fire and Casualty Co. v. Mazzara, 289 Ala. 542, 268 So. 2d 814, 817 (1972); Bailey v. Polster, 468 S.W.2d 105, 109 (Tex.Civ.App.1971).
[17] Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 710, 714 (Ark.App.1979) (adopted as opinion of Supreme Court of Arkansas, Canal Ins. Co. v. First Nat. Bank of Fort Smith, 596 S.W.2d 709 (Ark.1980); Bailey v. Polster, 468 S.W.2d 105, 109 (Tex.Civ.App. 1971).
[18] It is unnecessary to determine the validity of additional criticisms leveled by Farmers against Instructions 7 and 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2385872/ | 885 S.W.2d 433 (1992)
Wesley HARRELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 12-89-00035-CR.
Court of Appeals of Texas, Tyler.
July 31, 1992.
Discretionary Review Granted November 4, 1992.
*435 Odis R. Hill, Longview, for appellant.
C. Patrice Savage, Longview, for appellee.
OPINION ON REMAND
BILL BASS, Justice.
We delivered our original opinion in this case on May 17, 1991. The State petitioned for discretionary review contending that we erred in our review of the admission of evidence of an extraneous offense. The Court of Criminal Appeals remanded 820 S.W.2d 800 this case to us to reconsider the admission of the extraneous offense in the light of their subsequent opinion in Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991), delivered June 19, 1991.
A jury convicted Appellant of engaging in organized crime, and assessed punishment at confinement for fifteen years. At Appellant's trial, the State introduced a ledger apparently recording several cocaine sales made to "Wesley" during February and March of an un-named year. We reversed Appellant's conviction, because we believed that Appellant had not been clearly shown to have been the perpetrator of the extraneous crimes. See Turner v. State, 754 S.W.2d 668 (Tex.Cr. App.1988); McCann v. State, 606 S.W.2d 897 (Tex.Cr.App.1980); Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1974).
Montgomery prescribed a new procedure for adjudicating the admissibility of evidence of "other crimes, wrongs, or acts" under Article IV of the Texas Rules of Criminal Evidence, and pointed to a significant shift from a general rule of exclusion found in case law to the inclusionary approach implicit in the Rules of Evidence.
If evidence of uncharged misconduct is offered, the opponent must challenge the offer under Rule 404(b); an objection that the offer is not relevant or constitutes proof of an extraneous offense will preserve error. Under Montgomery, we must first determine if the offered proof is relevant for any purpose. If not, the evidence is inadmissible and the inquiry ends. Tex.R.Cr.Evid., Rule 402. If the answer is "yes," the court must then decide if it has relevance "apart from its tendency `to prove [the] character of a person in order to show that he acted in conformity therewith.'" Montgomery, 810 S.W.2d at 387. If it is relevant solely because it supports an inference of character conformity, the evidence is absolutely inadmissible under 404(b).
However, it may be admissible if the trial judge is persuaded that the evidence of extraneous offenses tends to establish "some elemental fact such as identity or intent, some evidentiary fact such as motive, opportunity or preparation, or if it tends to rebut a defensive theory." Montgomery, 810 S.W.2d at 387, 388.
If the opponent of the offer has objected only upon the ground that the proffered evidence is of an "extraneous offense" or has no relevance beyond character conformity, the trial judge should admit the evidence if it has relevance apart from character conformity. Id. at 389. The opponent's objection has been fully ruled upon.
Only in the event that the opponent of the offer has raised the further objection under Rule 403 that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, delay, or confusion of the issues, need the trial court proceed further and weigh the probative value of the evidence against its potential for unfair prejudice. An objection that the evidence is inadmissible because it amounts to proof of an "extraneous offense" will no longer suffice to require the trial judge to decide "both that evidence was relevant to a material issue and that its probative value outweighed its prejudicial impact." Once a Rule 403 challenge is leveled at the offer, the trial *436 court must go forward with the balancing process such as its weighing the factors that argue for and against its admission. Id.; 22 Wright & Graham, Federal Practice and Procedure: Evidence, § 5250 at 544-45 (1978). Unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court may admit it. Montgomery, 810 S.W.2d at 392. The abuse of discretion standard governs appellate review of the trial judge's decision under Rule 403. "But reviewing the trial court's judgment for abuse of discretion requires more of an appellate court than deciding that the trial judge did in fact conduct the required balancing and did not simply rule arbitrarily or capriciously." Id.
The relevance of an extraneous offense necessarily depends upon a showing that the offense actually occurred, and that the defendant committed it. The strength of the evidence showing that the extraneous bad acts occurred and that the defendant was the actor bears upon both the trial court's initial determination of relevance under Rule 404(b) as well as its assessment of probative value under 403. Evidence of another crime can rarely be relevant to prove the accused guilty of the crime charged, unless it is shown that the accused was its perpetrator.
The Montgomery court did not directly address the central question in this case. When the State undertakes to prove other crimes, wrongs, or acts, what is the standard by which the sufficiency of that proof is to be measured? What quantum of evidence must be presented showing that the defendant committed the extraneous crimes, wrongs, or acts before the evidence of that conduct may go to the jury? Given the potential for unfair prejudice that inheres in this kind of evidence, the courts of most jurisdictions have traditionally imposed a higher standard for its admission than that for the admissibility of evidence generally. See 22 Wright & Graham, Federal Practice and Procedure: Evidence, § 5249 at 532. Before the adoption of Rule 404(b), most federal and state courts required such evidence to be "substantial proof" or "satisfactory proof" or "clear and convincing." Id. In an opinion delivered after the adoption of the rules of evidence, the Court of Criminal Appeals reiterated the traditional and more demanding standard required of such evidence in Texas: evidence of another crime "should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator." Turner v. State, 754 S.W.2d 668, 673 (Tex.Cr.App. 1988).
Relying on Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988), the State argues strenuously that no preliminary showing is required before the admission of "other bad acts" evidence. In Huddleston, the petitioner argued that the jury should not be exposed to evidence of extraneous offenses until the trial court had heard the evidence and made a preliminary finding under Fed.R.Evid. 104(a) that the defendant had committed the extraneous offense. When the United States Supreme Court granted certiorari in Huddleston, a conflict existed among the Courts of Appeals both as to the necessity of such a preliminary hearing and the level of proof required before the admission of evidence of other acts of misconduct. The Supreme Court concluded that the trial judge was not required to make a preliminary finding that the government had proven the other act by a preponderance of the evidence. Huddleston, 485 U.S. at 689, 108 S. Ct. at 1501. However, although the judge is not required to weigh the evidence in order to make his own finding, he must be satisfied that there is, or will be, sufficient evidence in the record from which the jury may reasonably find by a preponderance of the evidence that the defendant committed the extraneous offense. Id. at 690, 108 S. Ct. at 1501-02. The Huddleston opinion makes clear that this quantum of evidence must be present before the proof of the extraneous offense is relevant under Rule 404(b).
[The] Government may [not] parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo.
. . . .
In the Rule 404(b) context, similar act evidence is relevant only if the jury can *437 reasonably conclude that the act occurred and that the defendant was the actor.
Huddleston, 485 U.S. at 689, 108 S. Ct. at 1501. Therefore, even under the relaxed requirements of Huddleston, there remains a threshold of proof that must be crossed before evidence of uncharged misconduct can go to the jury. The judge need not weigh the evidence to determine whether the evidence connecting the defendant to the extraneous offense preponderates, but he must be satisfied that there is sufficient evidence from which the jury could reasonably so find. Once this threshold of relevance is crossed, the strength of the evidence that the defendant committed the extraneous offense may still have an important bearing on the outcome of the judge's decision under Rule 403 weighing probative value against the potential for unfair prejudice.
The pertinent Texas Rules of Criminal Evidence are almost identical to their counterparts in the Federal Rules of Evidence. Nevertheless, the similarity in wording does not necessarily require a similar interpretation. State courts retain the right to interpret their own constitution and laws, short of subtracting from the rights guaranteed their citizens by federal law. Heitman v. Texas, 815 S.W.2d 681 (Tex.Cr.App.1991).
We reversed Harrell's conviction because we concluded that the evidence connecting him with the other cocaine sales recorded in the ledger fell short of the "clear and convincing" standard required by Texas case law and only recently reiterated in Turner. We have found no Texas case that expressly repudiates the "clear and convincing" test.
Montgomery did not expressly retreat from the more rigorous standard theretofore required by Texas case law. Whether Texas retains the more rigorous "clear and convincing" standard by which the proof of the other acts must be measured is a question that the Montgomery court did not directly address. However, it is important to note that in Montgomery's comprehensive discussion of the rules relating to evidence of extraneous bad acts, there is no mention that there is required a higher threshold of proof that the act occurred and that the defendant was the actor before the jury is exposed to the evidence of the extraneous acts. Consistent with the federal view, the strength of the proof that the accused was the actor was only noted as one of the factors in weighing probative value under Rule 403. Montgomery reiterates that, under the Rules of Criminal Evidence, the exclusionary emphasis toward extraneous offenses that formerly characterized Texas case law has been replaced by an inclusionary presumption that all relevant evidence is admissible (apart from that proving only character conformity) unless its probative value is substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d 372 (Tex.Cr.App.1990). It stresses that the strength of the evidence showing that the defendant committed the extraneous conduct is a factor in weighing the probative worth of that evidence. And Montgomery emphasizes that considerable deference should be accorded the trial judge's discretion both in determining relevance under 404(b) and in weighing probative worth against potential unfair prejudice under 403. "The determination of relevance ... depends upon one judge's perception of common experience." Montgomery, at 391. "An appellate court owes no less deference to the trial judge in making this judgment than it affords him in making any other relevancy call." Id. Montgomery's approach to appellate review of the trial judge's Rule 403 determination is also consistent with the federal court's view that "the trial court's judgment should be reversed rarely and only after a clear abuse of discretion." Montgomery, 810 S.W.2d at 392, citing, United States v. Maggitt, 784 F.2d 590, 597 (5th Cir.1986). In the recent case of Harris v. State, 827 S.W.2d 949, (Tex.Cr.App.1992), Harris urged that a witness failed to identify him as the perpetrator of the extraneous misconduct. The Court of Criminal Appeals acknowledged that the witness did not identify appellant, but, echoing the U.S. Supreme Court's language in Huddleston, concluded that "the trial court did admit other evidence from which the jury might reasonably conclude that appellant was in fact one of the thieves."
It is apparent that the interpretation of Article IV of the Texas Rules of Criminal Evidence by our Court of Criminal Appeals *438 parallels the federal court's interpretation of the analogous federal rules. We conclude that, consistent with the federal view, Texas law no longer requires that such evidence be clear and convincing, but only that there be sufficient evidence from which the jury may find by a preponderance of the evidence that the defendant committed the extraneous act. Once this showing is made, the relative strength of such evidence remains a consideration in the balancing process required by Rule 403.
The Lindley ledger admitted as State's exhibit no. 76 documents cocaine sales between the Lindleys and "Wesley" or "Wes" during the period from "2/16" to "3/28." There was evidence that the prices recorded in the ledger were the same as those prevailing during the time of the organized criminal activity. There was also testimony that Appellant had objected to the entry of his name in the later records. The other ledger supplemented by surveillance reports already showed several similar transactions between the Lindleys and Wesley Harrell. We believe this constitutes sufficient proof from which the jury might justifiably conclude by a preponderance of the evidence that the Appellant committed the extraneous offenses recorded in the ledger.
The proof that Appellant committed the extraneous offenses is sufficient to show that the evidence of those offenses is relevant. We must next review the trial court's implied finding that it has relevance apart from its tendency to prove "character conformity." When the evidence was admitted over Appellant's objections, the jury was instructed to consider it only as proof of intent.
Appellant's intent to participate in an organized criminal enterprise and its profits was sharply contested during the trial. The ledger showed several cocaine transactions in quantities indicating the drug was purchased by Appellant for resale, probably occurring near the time of the crime charged, between Appellant and the kingpin of the conspiracy. Several of the confederates charged with participation in the organized criminal activity also made drug purchases recorded in the ledger in question. The challenged ledger entries recorded recent purchases of cocaine, apparently for resale and not just for his personal use as Appellant argued. If Appellant could be shown to be a cocaine merchant and not simply a consumer, then his intent to be a part of a cocaine distribution ring was arguably more probable. Considering the deference we owe to the trial judge's relevance determination, we cannot say that the evidence was not relevant to prove intent.
We must next review the trial judge's balancing, under Rule 403, of the probative value of the evidence against its potential for unfair prejudice. We must do this in light of Montgomery's instruction "that probativeness is the weightier consideration," that the danger of unfair prejudice must substantially outweigh probative value before relevance is excluded, and that appellate courts should reverse the judgment of the trial court "rarely and only after a clear abuse of discretion." Montgomery, 810 S.W.2d at 392.
The State had other evidence to establish Appellant's intent to participate in this organized criminal enterprise. But it was not so compelling as to eliminate the State's need for this evidence. Little time was required to develop the evidence of the extraneous offenses, so it is unlikely that the jury's attention was diverted from the indicted offense. The transactions are identical to those underlying the crime charged.
On the other side of the scales, the evidence that the Appellant in fact committed the extraneous conduct is only sufficient. The evidence of the other sales carried with it a high potential for unfair prejudice and was of such a nature that a jury instruction to disregard it for any but the proffered purpose would be of dubious value.
Montgomery explains that trial courts should "favor admission in close cases, keeping in mind the presumption of the admissibility of relevant evidence." Montgomery, 810 S.W.2d at 389. This is a close case. We incline to the view that the potential for unfair prejudice outweighs the probative value of the evidence in question. But measuring the trial court's ruling against the relevant criteria by which a Rule 403 decision is to be made, we are unable to conclude that *439 the trial court abused its discretion in its implied ruling that the potential for unfair prejudice of the evidence of extraneous offenses did not substantially outweigh its probative value. The point is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/776994/ | 284 F.3d 489
WESTPORT INSURANCE CORPORATION, a Missouri corporation,v.Ronald Jay BAYER*; EVELYN LAKEN; Alan Laken,** all Pennsylvania residents, as a party in his own right and as Executor of the Estate of Morton Laken, Westport Insurance Corporation, Appellant.
No. 01-1150.
United States Court of Appeals, Third Circuit.
Argued January 16, 2002.
Filed March 27, 2002.
COPYRIGHT MATERIAL OMITTED Brian C. Bendig (Argued) and Jeffrey A. Goldwater, Bollinger, Ruberry & Garvey, Chicago, IL, for Appellant.
James J. West (Argued), Harrisburg, PA, for Appellees.
BEFORE: SCIRICA, GREENBERG, and BRIGHT,*** Circuit Judges.
OPINION OF THE COURT
BRIGHT, Circuit Judge.
1
This dispute concerns the coverage afforded appellee, Ronald Jay Bayer, under the lawyer's professional liability insurance policy issued to him by Westport Insurance Corporation (Westport). In 1997, Morton Laken, Evelyn Laken and Alan Laken (the Lakens) sued Bayer, alleging fraud and misrepresentation, among other things. Westport subsequently brought this action against Bayer and the Lakens seeking a declaratory judgment that Westport was not obliged to pay any judgment rendered against Bayer in the Lakens' action. In the underlying suit, Morton Laken, Evelyn Laken, and Alan Laken v. Fryer Group of Cos., et al., No. 97-4413 (E.D.Pa. Nov. 17, 2000) [hereinafter Lakens v. Fryer Group], the district court found for the Lakens on their negligent misrepresentation claims against Bayer and entered judgment for over $678,000.1 The district court then entered judgment in the instant case. The court declared Westport liable to the extent of the policy limits for payment of the Lakens' judgment against Bayer. The court determined that the policy's aggregate claims limit of $500,000, rather than the single claim limit of $250,000, applied to this case.
2
On appeal, Westport argues that the district court erred in concluding that Bayer's Westport policy covers the Lakens' claims. Westport also argues that the district court improperly addressed the question of the amount of coverage provided by the policy, and erred in determining that amount. We affirm the district court's judgment that Bayer's Westport policy covers the Lakens' claims to the extent of the applicable policy limit. However, we vacate the district court's determination as to the dollar amount of coverage and remand to the district court for further consideration.
I. Introduction
3
A. The Underlying Case, Lakens v. Fryer Group
4
In July 1997, the Lakens filed suit against attorney Ronald Bayer and several other defendants to recover money lost in a Ponzi-type confidence scheme, in which the perpetrators of the fraud paid interest to early investors using money received from later investors.2 In February 2000, Westport filed the instant declaratory judgment action. After some initial confusion resulting from Westport's failure to note that its declaratory judgment action was related to the Lakens' suit against Bayer, both cases proceeded separately before the same district court judge. In September 2000, after the conclusion of the nonjury trial in Lakens v. Fryer Group, but before the district court issued its decision, the court ordered that Westport's declaratory judgment action would be determined on the basis of the record in Lakens v. Fryer Group.3 A brief recitation of the factual background of that underlying case is therefore a necessary part of our opinion here.
5
In November 1990, Leonard Brown, a friend and sometime client of Bayer's, invested $500,000 with Keith Fryer, who claimed to run a secondary mortgage business in England. Fryer gave Brown a ten-year promissory note bearing twenty-seven percent interest. Fryer told Brown that the very high second-mortgage financing rates in England allowed him to pay investors high rates of interest. Fryer did not, in fact, run a mortgage business. Rather, he used some of Brown's money to make the interest payments to Brown and kept the rest for himself.
6
Brown was pleased with the payments he received on his investment and proposed to Fryer that Brown bring in other investors in return for a commission. Brown recruited another "finder" and retained Bayer as his attorney to negotiate a commission arrangement with Fryer. Bayer negotiated an agreement that paid the finders a five percent commission each year on the additional money invested with Fryer as a result of the finders' activities. Bayer received one-third of the commissions. Bayer himself invested heavily with Fryer.
7
For the next several years Fryer maintained the pretense that he ran a real mortgage business. Brown hosted gatherings to which he invited prospective investors and at which Fryer would present his nonexistent business as an investment opportunity. Bayer attended these gatherings, sometimes introduced Fryer, and generally promoted the investment.
8
Morton and Alan Laken, father and son, attended such a gathering. They each purchased installment notes issued by one of Fryer's dummy corporations, Park Securities, Ltd. They made their initial investments at Bayer's law office. Together they purchased a total of $678,009.59 worth of installment notes.4
9
Fryer's confidence scheme lasted until 1996, when some new investors insisted on an independent audit of Fryer's accounts. This audit exposed Fryer's fraud.
10
The Lakens sued Bayer, the Fryer Group of Companies, and several other defendants for misrepresentation and fraud, among other things. Over time the Lakens learned that all defendants except Bayer were fictitious, bankrupt, or otherwise judgment proof. Bayer himself filed for bankruptcy before the Lakens' action against him reached trial. The bankruptcy filing automatically stayed the trial in the Lakens' suit against Bayer. The Lakens eventually obtained an order lifting the stay when they agreed to limit any damages they might receive to those available under Bayer's professional liability insurance policy with Westport. Westport then filed this action seeking a declaratory judgment that Bayer's Westport policy provides no coverage for the Lakens' claims against Bayer.
11
The Lakens' suit against Bayer finally came to trial before the district court on September 11, 2000. On November 16, 2000, the court issued its decision. The court found for the Lakens and against Bayer on the Lakens' negligent misrepresentation claims and entered judgment in the Lakens' favor for $678,009.59.
12
In its decision, the district court found the following facts regarding Bayer's actions and his relationship to the Lakens. Bayer was Fryer's point of contact in America. Bayer introduced Fryer to potential investors at investment presentations. Bayer enthusiastically endorsed the investment opportunity offered by Fryer. He received funds from American investors and forwarded them to Fryer in England. Bayer received one-third of the finders' commissions on investments they solicited. He was authorized to draw checks on Fryer's American business account in emergencies. At one point, Bayer suggested that arrangements be made to give investors greater security in their loans, such as blanket debentures covering all assets of the Fryer Companies, but the idea was dropped when Fryer said that any such arrangement would require a reduction in the interest rates paid to the investors.
13
The court also found that the Lakens never retained Bayer to act as their attorney, but Bayer (a longtime attorney of the Lakens' friend, Brown) created the impression that he was "looking out for" the Lakens' interests. He permitted the Lakens to believe that he had "checked out" Fryer's activities and claimed to have performed a "due diligence" investigation. He let it be known that he had gone to England as part of the investigation. The Lakens relied on the information they received from Bayer.
14
The trial court concluded that these facts provided a basis for Bayer's liability:
15
In my view, the circumstances give rise to the legal obligation on the part of Mr. Bayer, either to make clear that he was not protecting plaintiffs' interests and that they should seek legal advice elsewhere, or to exercise reasonable care to avoid misrepresentations to them. Since he did neither, he is liable for their losses if their reliance upon his misrepresentations was reasonable.
16
The issue of justifiable reliance is a close one, but I believe the balance tips in favor of the plaintiffs on that issue. Although they did no independent investigation of their own, they were led to believe, by persons they trusted, that the proposed investment had been thoroughly investigated by others more knowledgeable than themselves.
17
Lakens v. Fryer Group, slip op. at 9.
B. The Policy
18
Bayer is the named insured on his "Lawyers Professional Liability Insurance" policy with Mt. Airy Insurance Company, a predecessor to Westport. Mt. Airy issued the policy pursuant to Bayer's application. That application included a "Supplemental Practice Application" which directed Bayer to describe any financial planning or investment counseling that formed part of his practice. On this form, Bayer answered "no" to questions asking whether his practice involved "money management activities" or recommending investment in "specific securities." However, he described his activities regarding the Park Securities investments in an addendum he attached to his application:
19
[K]indly be advised that Park Securities, Ltd., a mortgage company in Manchester, England, borrows money from individuals to be used in its mortgage portfolio. I prepare the Notes from the investors to Park Securities, Ltd. The distribution of the investment income was, for a period of time, in 1991, being wired to me, in bulk, and thereafter sent to the individual parties by my personal check. The current method of distribution [of investment income] is by wire to the mortgage company's bank i[n] Philadelphia with distribution being made by checks signed by the principal of the company. I do have deputy authority on the checking account for use in emergencies. I do not counsel the investors except to advise them to pay income tax on the funds since the mortgage company does not send 1099's. I do receive compensation for my work in cabling the funds and preparing the documents in the form of an override.
20
App. at A-2-26.
21
The insuring agreement of the policy issued to Bayer declares that the policy provides coverage for claims against Bayer "arising out of services rendered or which should have been rendered by any insured... and arising out of the conduct of the insured's profession as a lawyer."
22
The policy contains two exclusions that are relevant to this lawsuit. Exclusion E states that the policy does not apply to "any claim arising out of any insured's activities as an officer, director, partner, manager or employee of any company, corporation, operation, organization or association other than [the] named insured." Exclusion G precludes claims "arising out of or in connection with the conduct of any business enterprise other than the named insured ... which is owned by any insured or in which any insured is a partner, or which is directly or indirectly controlled, operated or managed by any insured either individually or in a fiduciary capacity."
23
C. Proceedings in Westport's Declaratory Judgment Action
24
In its declaratory judgment action, Westport asserted that the Lakens' claims arose from Mr. Bayer's activities in a business enterprise separate from his law practice, an enterprise in which he solicited investors and served as a local representative for Fryer. Westport argued that the insuring agreement in the policy, or either of the exclusions mentioned above, precluded coverage for the Lakens' claims against Bayer.
25
Relying on the evidentiary record from the Lakens' suit against Bayer, the federal district court found the following facts relevant to Westport's action for declaratory judgment: (1) in all his contacts with the Lakens, Bayer considered himself to be practicing law as an attorney representing Fryer in the United States and receiving contingency fees based on the results he obtained for Fryer; (2) the Lakens regarded Bayer as engaged in performing legal services in his capacity as an attorney; (3) in all relevant activities, Bayer held himself out to the Lakens as a practicing attorney and realized that they dealt with him on that basis; and (4) Bayer was never an officer, director, partner, manager or employee of anyone other than himself.
26
Based upon these findings, the court concluded that, although there "probably was not an actual attorney client relationship" between Bayer and the Lakens, Bayer's policy covered the claims against him by the Lakens. The district court also stated that the addendum to Bayer's application removed any doubt that Bayer's policy with Westport covered the Lakens' claims. "Having issued its policy pursuant to [Bayer's] application, Westport cannot now disclaim coverage for liabilities arising from the precise activities thus described." The court ordered Westport liable to pay the $678,009.59 judgment rendered against Bayer in Lakens v. Fryer Group "to the extent of policy limits," which in the body of the opinion it determined to be $500,000.5
II. Discussion
27
The district court sat as fact finder in this case. We review the court's findings for clear error. See Fed.R.Civ.P. 52(a). In their briefs to this court, both parties profess to accept and rely upon the district court's findings of fact. We note, however, that in places their representations of those facts are quite different from one another and from those of the district court. We consider it important, therefore, to state clearly that our review of the record in this case, including the Lakens v. Fryer Group trial transcript, shows no clear error in the district court's findings of fact.
28
Interpretation of the insurance policy's coverage is a question of law and our review is plenary. Pacific Indem. Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985). Pennsylvania law governs our interpretation of this insurance policy and the extent of its coverage. We read policies to avoid ambiguities, if possible. Northbrook Ins. Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir.1982).
A. The Insuring Agreement
29
The insuring agreement states that the policy covers claims "arising out of services rendered or which should have been rendered by any insured ... and arising out of the conduct of the insured's profession as a Lawyer." Westport argues that the Lakens' claims did not arise out of Bayer's conduct as a lawyer and, therefore, the policy does not cover Bayer's liability for those claims.6
30
Citing a Ninth Circuit appellate decision, General Accident Ins. Co. v. Namesnik, 790 F.2d 1397 (9th Cir.1986), and a federal district court case from North Carolina, H.M. Smith v. Travelers Indem. Co., 343 F.Supp. 605 (M.D.N.C.1972), Westport contends that Bayer's policy covers only those claims that arise from acts or omissions unique to the practice of law. Westport argues that the district court's findings in Lakens v. Fryer Group demonstrate that Bayer's liability to the Lakens does not stem from "failure to do anything related to uniquely legal skill or training." Thus, according to Westport, Bayer's liability is not covered by the insuring agreement.
31
We reject this argument. We note, as an initial matter, that neither Namesnik nor H.M. Smith applies Pennsylvania law. In addition, Namesnik does not stand for the proposition that a lawyer's professional liability insurance policy covers only claims arising from acts unique to the practice of law. H.M. Smith better supports Westport's argument, but we ultimately find it unpersuasive.
32
In Namesnik, an attorney had recommended to his clients that they invest in corporations which he formed, operated, and for which he performed legal work. At the same time, the attorney continued to perform legal services for the clients. He billed the clients for that legal work, but not for any work performed in the financial ventures. When the clients lost the money they had invested, they brought a legal malpractice claim against the attorney and the insurer sought a declaratory judgment of noncoverage. The district court granted summary judgment to the insurer and the Ninth Circuit Court of Appeals affirmed. The Ninth Circuit determined that "the lack of fees directly traceable to the [investments], at a time when fees were billed for legal services" supported the insurer's contention that the clients' claims against the attorney stemmed from his actions as a business agent rather than a lawyer. Namesnik, 790 F.2d at 1399. The court held that the clients' failure to respond directly to this evidence left no genuine issues of material fact, making summary judgment for the insurer appropriate.
33
Namesnik does not require that the Lakens' claims stem from an act by Bayer that required "uniquely legal skill or training." If Namesnik is applicable at all to the case before us, it merely requires that the Lakens present evidence that Bayer provided professional services from which the Lakens' claims arise. The facts found by the district court support the conclusion that the Lakens presented such evidence.
34
In H.M. Smith, a federal district court, citing a "helpful" New Jersey Supreme Court case, determined that an attorney did not act in a legal capacity when he solicited, and then invested, funds from a non-client. 343 F.Supp. at 609-610. The court based its decision, in part, on its determination that "the transaction itself is one that requires no legal skill or training." We conclude, however, that whatever persuasive authority that case provides is overcome by the following analysis which applies Pennsylvania law.
35
Bayer's policy does not define what it means for an injury to "aris[e] out of the conduct of the insured's profession as a lawyer." The Pennsylvania appellate courts have determined that "use of the undefined phrase `professional services' may well give rise to a finding of ambiguity" in an insurance policy. Biborosch v. Transamerica Ins. Co., 412 Pa.Super. 505, 603 A.2d 1050, 1056 (1992). Likewise, language in a professional liability policy stating that the insurer will cover all injuries "arising out of" the rendering or failure to render professional services, and will defend "any" suit against the insured seeking such damages, signals that the coverage is to be broadly construed. Danyo v. Argonaut Ins. Cos., 318 Pa.Super. 28, 464 A.2d 501, 502 (1983). We therefore broadly construe the coverage afforded by the insuring agreement of Bayer's policy.
36
A policy provision is ambiguous if reasonably intelligent people would honestly differ as to its meaning when considering it in the context of the entire policy. Northbrook, 690 F.2d at 372. Under a broad construction of the coverage in Bayer's policy, reasonably intelligent people would differ as to whether the provision covering claims "arising out of services rendered or which should have been rendered... and arising out of the conduct of the insured's profession as a Lawyer" includes Bayer's actions in preparing installment notes, transferring money, and generally advising investment in Fryer's companies while holding himself out as an attorney who is watching over the Lakens' investments. See Home Ins. Co. v. Law Offices of Jonathan DeYoung, P.C., 32 F.Supp.2d 219, 230 (E.D.Pa.1998) (denying summary judgment to attorney's liability insurer and concluding that under Pennsylvania law, "[b]ecause the term `professional services' is undefined in the policy, it is possible for reasonable minds to reach varying conclusions" as to whether an attorney who had invested funds on client's behalf had rendered professional services). That policy provision is therefore ambiguous.
37
Where a policy provision is ambiguous, we construe the provision in favor of the insured in a manner consistent with the reasonable expectations insured had when obtaining coverage. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983); Danyo, 464 A.2d at 502. The addendum Bayer attached to his application for coverage indicates his reasonable expectation that his work concerning Park Securities, Ltd. would be covered. We therefore construe the policy's language in favor of coverage. We conclude that the policy's insuring agreement provides coverage to Bayer for the Lakens' claims against him.
B. The Exclusions
38
For Exclusion E of Bayer's policy to apply to this case, Bayer must have been an officer, director, partner, manager or employee of some entity other than his firm. The district court found that Bayer never served as an officer, director, partner, manager or employee of any entity other than his firm. Westport disputes this finding, but offers no direct evidence to the contrary. We have reviewed the record and conclude that the district court did not clearly err in finding that Bayer never held any such position. Our acceptance of that finding precludes application of Exclusion E to the facts of this case.
39
That same finding by the district court makes inapplicable the terms in Exclusion G regarding ownership, partnership, and management. As a result, in order for Exclusion G to apply to this case, the Lakens' claims must "aris[e] out of or in connection with the conduct of any business enterprise other than the named insured... which is directly or indirectly controlled [or] operated ... by any insured."
40
Westport cites Coregis Ins. Co. v. Larocca, 80 F.Supp.2d 452 (E.D.Pa.1999), and Coregis Ins. Co. v. Bartos, Broughal & DeVito, LLP, 37 F.Supp.2d 391 (E.D.Pa. 1999), which address policies containing language similar to Exclusion G. These cases are distinguishable. In each of these cases, the insured attorney was a partner in a business enterprises other than his law practice. The opinions in these cases focus on the meaning of the terms "arise out of" and "in connection with." The applicability of Exclusion G in the case before us, in contrast, turns on whether Bayer exerted the influence suggested by the terms "operate" and "control."
41
The facts as found by the district court in Lakens v. Fryer Group indicate that Bayer's influence on Park Securities extended only to preparing the installment notes, passing investments and interest payments back and forth between the investors and Fryer, and possessing authority to use the entity's checking account in emergencies. He was, as the district court put it, a "point of contact." The district court implicitly rejected the view that this constituted control or operation of Park Securities, and we explicitly reject it now. We conclude that Bayer's activities, while professional services broadly construed, do not bespeak control or operation of Park Securities.7 We hold that Exclusion G in Bayer's policy does not apply to the circumstances of this case.
C. Policy Limits
42
The district court determined that the Lakens' claims against Bayer triggered the policy's $500,000 limit for aggregate claims rather than the $250,000 single claim limit. Westport contends that the issue of policy limits is beyond the scope of the declaratory judgment action, and urges us to vacate the district court's determination on that issue. Westport further argues that, in any case, the applicable policy limit is $250,000.
43
Westport's declaratory judgment complaint requests a declaration of no coverage for the Lakens' claims "along with such other and further relief in its favor and against the defendants as is just and proper." Westport never requested a declaration of the applicable limits of coverage. Nor did the Lakens' answer to the declaratory judgment request such a declaration. The Lakens made no counterclaim; they simply listed affirmative defenses and requested a dismissal of the declaratory judgment action. The parties did not put the question of limits before the district court. Westport argues that under these circumstances, the district court improperly went beyond the scope of the declaratory judgment action by deciding the applicable limit of coverage under the policy.
44
The Lakens reply that the Declaratory Judgment Act provides the district court with authority to grant further relief based on a declaratory judgment: "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment." 28 U.S.C. § 2202. However, Westport correctly points out that in this case the district court offered no notice and held no hearing after the declaratory judgment before granting further relief to the Lakens by determining the applicable policy limits.
45
Generally, the judgment in a suit for declaratory judgment must be responsive to the pleadings and issues presented. See St. Paul Fire & Marine Ins. Co. v. Lawson Bros. Iron Works, 428 F.2d 929, 931 (10th Cir.1970). A judgment beyond the issues presented constitutes an advisory opinion. Id. Our own research has failed to uncover any United States Court of Appeals case affirming a district court's grant of declaratory relief to a defendant beyond that requested in the pleadings, except where the defendant brought a counterclaim. See, e.g., Starter Corp. v. Converse, Inc., 170 F.3d 286, 298 (2d Cir.1999) (noting that "[c]ourts have also entered injunctions against unsuccessful [declaratory judgment] plaintiffs because either the prevailing party requested such relief, which was granted after notice and hearing, or the defendant had initially sought injunctive relief in its counterclaims") (emphasis added) (citations omitted); Penthouse Int'l, Ltd. v. Barnes, 792 F.2d 943, 950 (9th Cir.1986) (holding that the district court abused its discretion in awarding to declaratory judgment defendant relief beyond the scope of the issues presented in the action).
46
Moreover, we note that even if we were to address the issue of the applicable limit of liability under the policy, we would need further findings of fact by the district court or greater development of the record before we could determine whether the Lakens present a single claim or multiple claims under the policy definitions. Under the heading "Multiple Insureds, Claims and Claimants," the policy states:
47
The inclusion of more than one insured in any claim or the making of claims by more than one person or organization shall not operate to increase the limits of liability and deductible.
48
Two or more claims arising out of a single act, error, omission or personal injury or a series of related acts, errors, omissions or personal injuries shall be treated as a single claim.
49
All such claims whenever made shall be considered first made on the date on which the earliest claim arising out of such act, error, omission or personal injury was first made and all such claims are subject to the same limits of liability and deductible.
50
App. at A-2-12.
51
The policy defines a claim to be "a demand made upon any insured for damages."8
52
We observe that under the Declaratory Judgment Act the Lakens can request that the district court order further relief based on the declaratory judgment. See 28 U.S.C. § 2202. Assuming the Lakens undertake such action, the district court may resolve this issue after notice and hearing either on the present record or, at its option, by hearing additional evidence. See Edward B. Marks Music Corp. v. Charles K. Harris Music Publ'g Co., 255 F.2d 518, 522 (2d Cir.1958).
53
We determine that the district court erred by granting relief to the Lakens on an issue outside the scope of the relief requested by Westport and without the notice and hearing required by statute. We therefore vacate the district court's determination that the applicable policy limit is $500,000.
III. Conclusion
54
We affirm the district court's judgment that Bayer's policy with Westport covers the Lakens' claims to the extent of the policy limits as may be determined at a later date. We vacate the district court's determination of the dollar amount of coverage and remand to the district court for further consideration.
Notes:
*
Amended in accordance with Clerk's Order dated 8/7/01
**
Amended — See Clerk's Order dated 10/1/01
***
Honorable Myron H. Bright, Senior Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation
1
Bayer has appealed the district court's judgment in the underlying case to this court. We affirm the district court's judgment in an unpublished opinion that we file contemporaneously with this opinionSee Laken v. Fryer Group of Cos., No. 00-4302, 2002 WL 463405 (3d Cir. Mar. 27, 2002).
2
The district court found that Bayer was not criminally involved in the fraudulent scheme
3
The order provided that Westport counsel receive a transcript of the trial testimony inLakens v. Fryer Group and that Westport have ten days to request leave to produce additional testimony. Westport made no such request.
4
Morton Laken purchased installment notes totaling $425,540.84. These notes were made out variously to Morton Laken, to Morton and Evelyn Laken (his wife), and to Morton Laken in trust for a third party. Alan Laken purchased installment notes totaling $252,468.75
5
The district court's order declares Westport liable for payment of the judgment rendered against Bayer inLakens v. Fryer Group "to the extent of policy limits." In its opinion, however, the court states that the question before it is whether Westport must pay the judgment against Bayer "to the extent of the policy limit ($500,000)."
6
Westport makes repeated reference to the fact that the Lakens were not in an attorney-client relationship with Bayer. We note that professional liability can arise out of an attorney's activities with those other than his own clientSee Harad v. Aetna Cas. & Surety Co., 839 F.2d 979, 984 (3d Cir.1988) (stating that the plain meaning of the term "professional service," does not of itself require an attorney-client relationship); Humphreys v. Niagara Fire Ins. Co., 404 Pa.Super. 347, 590 A.2d 1267, 1270 n. 9 (1991) (noting that policy language similar to that in the instant case "does not state that it will only cover claims brought by clients of the attorney or third party beneficiaries to the attorney-client relationship.... [or] that it will only cover claims for malpractice.")
7
"[C]overage clauses are interpreted broadly so as to afford the greatest possible protection to the insured. Exceptions to an insurer's general liability are accordingly to be interpreted narrowly against the insurer."Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747, 750 (1981) (citations omitted).
8
For cases addressing similar issues regarding policies with similar language, seeGregory v. Home Ins. Co., 876 F.2d 602 (7th Cir. 1989); Continental Cas. Co. v. Brooks, 698 So.2d 763 (Ala.1997); and Bay Cities Paving & Grading, Inc. v. Lawyers' Mut. Ins. Co., 5 Cal.4th 854, 21 Cal.Rptr.2d 691, 855 P.2d 1263 (1993). | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2386060/ | 695 F. Supp. 2d 811 (2010)
MERCATUS GROUP LLC, Plaintiff,
v.
LAKE FOREST HOSPITAL, Defendant.
No. 07 C 2042.
United States District Court, N.D. Illinois, Eastern Division.
February 16, 2010.
*813 W. Gordon Dobie, Attorney at Law, Winnetka, IL, John J. Tully, William Edward Walsh, Winston & Strawn LLP, Chicago, IL, for Plaintiff.
David Marx, Erin C. Arnold, Stephen Yusheng Wu, McDermott, Will & Emery LLP, Chicago, IL, for Defendant.
MEMORANDUM AND ORDER
BLANCHE M. MANNING, District Judge.
Plaintiff Mercatus Group LLC sued Lake Forest Hospital, the Village of Lake Bluff, and Village Trustees Michael Peters, David Barkhausen, and Rick Lesser in connection with an alleged plot to monopolize the diagnostic medical imaging market in Eastern Lake County by preventing Mercatus from opening a facility in that market.[1] Lake Forest Hospital's motion for summary judgment on Mercatus' antitrust and supplemental state claims is before the court. For the following reasons, Lake Forest Hospital's motion is granted as to Mercatus' federal claims and the court declines to exercise jurisdiction over the remaining state law claims.
I. Background
The following facts are undisputed unless otherwise noted.
A. The Parties
Lake Forest Hospital is an Illinois nonprofit corporation with its principal place of business in Lake Forest, Illinois. Mercatus was founded in 2003 by Mr. Chris Joseph. It partners with independent physicians to develop and operate physician centers, which are off-campus medical office buildings that provide a variety of services to physicians. The clinical services enable participating practices to offer comprehensive care to their patients, including diagnostic imaging. Mercatus also leases office space to physicians and provides business services including billing services, electronic medical records hosting, telecommunications services, claims processing, marketing support, staffing, and collections.
Mercatus allows physicians to share in the profits from the center, including as real estate partners. Mercatus also initially allowed physicians to share in the profits from ancillary services, including imaging but ceased doing so in March of 2007.
B. Mercatus' Efforts to Expand into Lake Bluff
Mercatus operates a physician center in Vernon Hills, Illinois, at which it delivers diagnostic imaging services including nuclear imaging, magnetic resonance imaging and computed tomography scans. In 2004, Mercatus began plans to construct a physician center in Lake Bluff, Illinois. It thus sought appropriately zoned land. It ultimately reached an agreement to lease the Shepard Land (so-called because it already featured an automotive sales dealership on part of the property called Shepard Chevrolet), which was zoned L-2, a zone that generally permits medical office buildings.
1. The Nature of the Proceedings Before the Board
Mercatus participated in a number of hearings before the Village Board in an attempt to gain support for its proposed development. Some attorneys attended at least some of these hearings. Letchinger Tr. (Tab 14) at 39:24 to 40:16 (attorneys Sandy Steinattorney for an unidentified partyand Peter Friedmanthe Village of Lake Bluff's attorneywere present at *814 a Board meeting); 96:12-24 (unidentified attorneys were present at Board meetings).[2] As noted by Lake Forest Hospital, however, Mercatus has not directed the court's attention to any evidence indicating that the Hospital's counsel were among the attorneys present at any of the Board proceedings. The Board conducted the hearings before it in an orderly fashion, recorded them, and provided notice of the hearings and a written decision.
2. Mercatus' Efforts to Secure Approval for its Project
In April of 2006, Mercatus presented its plans for the proposed Lake Bluff physician center to the Lake Bluff Board of Trustees ("Village Board"). Lake Forest Hospital representatives spoke against Mercatus' proposed development. Mercatus believed that some of these statements were inaccurate and designed to thwart its planned project. During the April 2006 meeting, the Village Board did not reference any special use ordinance governing the Shepard land or state that Mercatus needed to obtain development approval prior to proceeding with its project.
In September of 2006, the Lake Bluff Architectural Board of Review unanimously approved Mercatus' site plan, contingent upon review of proposed lighting and signage plans. Assuming Mercatus satisfied these contingencies, the Architectural Board of Review's decision meant that the Village Board could only deny site plan approval to Mercatus based on a two-thirds vote.
The parties, however, disagree as to the Village Board's consideration of development approval for Mercatus' proposed facility separately from site plan approval. According to Lake Forest Hospital, the Village Board had unfettered discretion in deciding whether to grant development approval to Mercatus. Lake Bluff's special use ordinance (Df. Ex. 10) and the amendments to that ordinance in 1976 (Df. Ex. 11) and 1979 (Df. Ex. 12) contain the discretionary factors the Village Board was required to consider when deciding whether to grant development approval. In addition, Lake Forest Hospital directs the court's attention to the conclusion of the Village Attorney (Trustee Peters) that denial of development approval did not require written findings or a written resolution but, instead, could be done via an oral motion and vote. Finally, Lake Forest Hospital stresses that the Village Board considered comments from the public but representatives from Mercatus and Lake Forest Hospital never provided sworn testimony before the Board regarding development or special use approval.
On the other hand, Mercatus asserts that the Village Board's decision to split off the decision to vote on developmental approval from the decision to vote on site plan approval was improper and flowed from the Board's desire to illegitimately deny Mercatus' site plan. It also challenges the reliance on Trustee Peters' views regarding the procedure that the Village Board was obligated to follow vis-a-vis Mercatus' project, contending that: (1) *815 Trustee Peters' employment by Lake Forest Hospital renders his views suspect; and (2) Lake Bluff's zoning code (§ 10-2-6(E), Df. Tab 16 at pp. 33-39) is at odds with Trustee Peters' position as his method of ruling on a special use permit is not prescribed by ordinance.
On October 23, 2006, Mercatus came before the Village Board to seek approval of its site plan. The meeting then followed the same path as the April meeting, as Lake Forest Hospital representatives spoke against Mercatus' plan, and Mercatus believed that some of these statements were inaccurate and designed to thwart its project. Mercatus contends that as a result of Lake Forest Hospital's influence on the proceedings (particularly through the presence of Trustee Petersa Lake Forest Hospital employeeon the Village Board), the Village Board improperly created a separate "land use"/development approval requirement that is not based on Lake Bluff's zoning code.
In response, Lake Forest Hospital contends that the Village Board proceedings were proper, arguing that: (1) Mercatus failed to cite to evidence showing that Lake Forest Hospital was responsible for the Village Board's decision to require Mercatus to seek development approval; (2) the Village attorney sufficiently explained the basis for the Board's decision to require Mercatus to seek development approval in addition to site plan approval; and (3) Mercatus' reading of the impact of Lake Bluff's zoning ordinances on the Shepard land is incorrect. The October meeting ended with a vote by the Village Board to grant development approval to Mercatus based upon the text of the special use ordinance and its amendments and to postpone deliberation on whether to grant site plan approval to Mercatus until the next meeting.
C. Mercatus' Proposed Project Flatlines
In November of 2006, the Village Board voted to reconsider its earlier approval of a portion of Mercatus's project. In early 2007, the Board considered Mercatus' proposal again and denied both development and site plan approval.[3] Mercatus contends that the lack of approval was due to improper influence by Lake Forest Hospital, pointing to a statement by Village Board President Christine Letchinger to the effect that Mercatus' project failed for political reasons. Mercatus' spin on this statement is that "political reasons" was a euphemism for a desire to protect Lake Forest Hospital.
The record shows, however, that while Ms. Letchinger knew that Lake Forest Hospital opposed Mercatus' project, her "political reasons" comment also referred to her belief that supporting the Mercatus project would not further her efforts to get support for a housing development project. Ms. Letchinger also testified at her deposition that the Board considered the Village's comprehensive plan for the area, which called for retail projects, as well as concerns about traffic and economic impact, the good of the community, and over-development *816 when voting on Mercatus' project. In addition, she stated that she believed that Lake Forest Hospital had mounted a successful lobbying effort against the Mercatus project.
The parties disagree regarding whether more than two-thirds of the Board indicated that concerns about competition with Lake Forest Hospital influenced their vote. The court finds that Mercatus has pointed to evidence that would support a jury's conclusion that concern about competition between Lake Forest Hospital and the proposed Mercatus facility was one of many factors that motivated the members of the Board when they voted. See Def. Ex. 13 at 13-029:8-15 (Rener) (noting that "a lot" of residents and community members wanted the project to be denied, apparently because they were satisfied with Lake Forest Hospital's performance, while other residents supported the project because they wanted Lake Forest Hospital's performance to improve); 13-034:23 to 13-035:19 (Surkamer) (changed vote due to satisfaction with Lake Forest Hospital and his belief that there are better uses for the property and "we don't need the threat to the hospital"); 13-035:22 to 13-036:24 (Barkhausen) (opining that competition that causes Lake Forest Hospital to lose money harms the interest of residents and stating that the interest of residents must be protected); 13-038:8-20 (Lesser) (the use of the parcel as retail "and the continued viability of the hospital are what are in the best interests of the people of the Village of Lake Bluff"); Letchinger Tr. at 55:4-14 ("Lake Forest Hospital's [concerns about competition] was part of it but not entirely all of it" as concerns about traffic, development, and retail space also drove the decision to vote against the Mercatus plan).
Mercatus also points to numerous portions of the record that purportedly show that Lake Forest Hospital was behind the Board's decision to reject Mercatus' plan. The court agrees that the record demonstrates that Lake Forest Hospital lobbied against the proposed Mercatus facility, see, e.g., Mercatus' Tab 69 (under seal), but that its efforts were one of many factors underlying the Board's decision to vote against the project. The lobbying effort had three prongs: a Village of Lake Bluff prong, a physician-strategy prong, and a media-public relations prong.[4] In addition, John Durkin (Mercatus' expert) opined that Lake Forest Hospital also encouraged other hospitals to make it more difficult for Mercatus to enter the market. Durkin Report (Df. Tab 10) at ¶ 38, pp. 10-013 to 10-014.[5]
After the Village Board rejected Mercatus' project, it issued findings of fact supporting *817 the denial of site plan approval as required by Lake Bluff's zoning ordinances. See Lake Bluff Zoning Code § 10-1-9(D)(4), 10-1-9(E)(1)-(8), Def. Ex. 14 at XX-XXX-XX. The proffered reasons which Mercatus contends were pretextualwere:
The development was prohibited under the terms and conditions of the Special Use Ordinance which required a denial of Site Plan Approval pursuant to Paragraphs 10-1-9E1 and 10-1-9E2 of the Lake Bluff Zoning Regulations;
the existing access and traffic control was insufficient to meet the access and traffic requirements of the proposed development; and
the proposed development, as a non-retail medical office building, was inconsistent with the Village's Comprehensive Plan which identified the property on which Mercatus sought to develop as a target for retail and auto-related uses.
D. Mercatus' Complaint
Mercatus filed suit, contending that Lake Forest Hospital's lobbying effort against Mercatus' project was underhanded and based on a series of lies meant to prevent a competitor from opening up shop nearby and wicking away patients. Specifically, Mercatus' amended complaint alleges that Lake Forest Hospital monopolized or attempted to monopolize the market for diagnostic imaging services in Eastern Lake County (Counts I & II), monopolized or attempted to monopolize the market for comprehensive physician services in Eastern Lake County (Counts III & IV), conspired to unlawfully restrain trade (Count V), and tortiously interfered with Mercatus' prospective economic advantage by affecting its relationships with physicians and Evanston Northwestern Healthcare (Counts VI & VII).
II. Analysis
A. Standard for a Motion for Summary Judgment
Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party opposing the summary judgment motion "may not rest upon the mere allegations or denials of the adverse party's pleading"; rather, it must respond with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir.1992). A court should grant a motion for summary judgment only when the record shows that a reasonable jury could not find for the nonmoving party. Id.
B. Lake Forest Hospital's Motion for Summary Judgment
In its order addressing Lake Forest Hospital's motion to dismiss, the court found (among other things) that it could not decide if the Noerr-Pennington doctrine immunized Lake Forest Hospital's alleged misrepresentations to the Village Board because at the motion to dismiss stage, it could not determine if the Village Board acted in an adjudicatory or legislative capacity when it denied Mercatus' development plans.[6] The court also declined *818 to consider whether Mercatus had shown that an alleged agreement in restraint of trade existed because the parties did not sufficiently address whether Mercatus had standing to raise an antitrust claim.
In its motion for summary judgment, Lake Forest Hospital contends that Mercatus cannot prevail on its federal antitrust claimsthat Lake Forest Hospital monopolized or attempted to monopolize the market for diagnostic imaging services and comprehensive physician services in Eastern Lake County (Counts I-IV) and conspired to unlawfully restrain trade (Count V)because its lobbying of the Village of Lake Bluff Board of Trustees is immunized from antitrust liability by the Noerr-Pennington doctrine. Alternatively, Lake Forest Hospital argues that Mercatus' antitrust claims fail on the merits, asserting that Mercatus cannot establish essential elements of an antitrust claim, such as its alleged product and geographic markets, the existence of or the likelihood of Lake Forest Hospital acquiring monopoly power, or the existence of a conspiracy in restraint of trade.
With respect to Mercatus' state law claims that Lake Forest Hospital tortiously interfered with Mercatus' prospective economic advantage by affecting its relationships with physicians and Evanston Northwestern Healthcare (Counts VI-VII), Lake Forest Hospital contends that it is entitled to summary judgment because its efforts to retain physician relationships are protected by the competition privilege and its conduct did not cause Evanston Northwestern Healthcare to end its relationship with Mercatus.
1. The Noerr-Pennington Doctrine
The Noerr-Pennington doctrine originated in the antitrust context and shields parties from liability based on, among other things, lobbying efforts and public statements. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961) ("no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws"); United Mine Workers of America v. Pennington, 381 U.S. 657, 670, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965) ("[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act"); see also Tarpley v. Keistler, 188 F.3d 788 (7th Cir.1999) (under the First Amendment, "parties may petition the government for official action favorable to their interests without fear of suit, even if the result of the petition, if granted, might harm the interests of others").
This means that under the Noerr-Pennington doctrine, "those who petition government for redress are generally immune from antitrust liability." Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 56, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993). The doctrine applies to petitioning activity directed at legislative, executive, and judicial branches of federal and state governments. See J. von Kalinowski, 3 Antitrust Laws and Trade Regulation § 50.03[1] (2d ed. Matthew Bender) (collecting cases).
a. The Sham Exception
There are a number of exceptions to Noerr-Pennington immunity. In this case, the parties focus on the sham exception. This exception covers "situations in which persons use the governmental process[,] as opposed to the outcome of that process," to directly harm or harass another *819 party. City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991); see also Greater Rockford Energy & Technology Corp. v. Shell Oil Co., 998 F.2d 391, 397 (7th Cir.1993). If the sham exception applies, the petitioning entity is not protected by the First Amendment's right to petition and may be subject to antitrust liability. See City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. at 380, 111 S. Ct. 1344 ("A `sham' situation involves a defendant whose activities are not genuinely aimed at procuring favorable government action at all, not one who genuinely seeks to achieve his governmental result, but does so through improper means") (internal citations and quotations omitted); 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288 (11th Cir.2003) ("There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified").
b. Legislative or Adjudicative?
The scope of the sham exception differs depending on whether the petitioning conduct is directed at a legislative or adjudicative body. "When the concerted activities occur in a legislative or other non-adjudicatory governmental setting, they are not within the Sherman Act even though they include conduct that can be termed unethical, such as deception and misrepresentation." Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 228 (7th Cir.1975) (internal citations and quotations omitted). Based on this rule, Lake Forest Hospital contends that the proceedings before the Board were legislative, as opposed to adjudicative, and Mercatus unsurprisingly argues the opposite.
As the Seventh Circuit has recognized in the due process context, "the line between legislation and adjudication is not always easy to draw." LC & S, Inc. v. Warren County Area Plan Comm'n, 244 F.3d 601, 603 (7th Cir.2001) (addressing due process and void for vagueness challenge to zoning law). Generally, action is legislative in nature if it involves "the promulgation of general or prospective legislation or establish[es] guidelines by which the future conduct of certain groups is to be judged," while actions are adjudicative if they "involve the application of already enacted ordinances or recognized policies to specific instances." Reed v. Village of Shorewood, 704 F.2d 943, 952-53 (7th Cir. 1983) (distinguishing between adjudicative and legislative actions in the context of a challenge to a zoning law under the Fourteenth Amendment due process clause). For purposes of Noerr-Pennington immunity, however, factors germane to determining if a governmental body acts in a legislative or adjudicative capacity are the "degree of political discretion" exercised by the entity, "whether it makes or administers laws, and whether it follows enforceable standards of review, or bears other indicia of adjudicatory bodies." See J. von Kalinowski, 3 Antitrust Laws and Trade Regulation at § 50.04[3][c]; see also Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d at 228.
Mercatus' position, in essence, is that the Village Board applied existing ordinances to its property and hence by definition must have acted in an adjudicative capacity. It also stresses that: (1) the Lake Bluff Architectural Board of Review conducted public hearings about Mercatus' plan and because it approved the project, two-thirds of the Village of Lake Bluff Board was required to vote against Mercatus to defeat the project; (2) the Village Board was required to issue findings of fact containing specific reasons why Mercatus' *820 project did not pass muster under Lake Bluff's zoning ordinances, see Lake Bluff Zoning Code § 10-1-9(D)(4), (E)(1) (8) (Df. Ex. 14 at XX-XXX-XX); and (3) the Village Board followed procedural rules during the hearings, information packets were provided to Trustees, and a record was created via video recordings of the proceedings and minutes. It also appears that some lawyers attended at least some of the hearings before the Board, although it does not appear that counsel for the Hospital was present.
At the motion to dismiss stage, the court declined to determine whether Village Board acted in a legislative or adjudicatory capacity because it construed Mercatus' allegations in the light most favorable to Mercatus. The record at this point, however, is more developed and while this is a difficult area of the law, the court is not persuaded that the Village's zoning decision was adjudicative.
The court begins with the fact that the Village Board delegated initial consideration of Mercatus' plan to the Lake Bluff Architectural Board of Review, which conducted public hearings, but then voted on the proposal after considerable lobbying efforts from proponents and opponents of Mercatus' project. This chain of events does not demonstrate that the Village Board acted adjudicatively, given that the Board retained the ultimate power to reject the Architectural Board of Review's decision with a two-thirds vote.
Mercatus also makes much of the fact that the Board based its decision, at least in part, on the effect that the Mercatus project would have on Lake Forest Hospital. The record shows that the Board members considered the likely outcome of increased competition on the hospital. Nevertheless, this is not per se impermissible. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 468 (7th Cir. 1988) (legislatures need not use adjudicative-type procedures when ruling on zoning requests and may "base their actions on considerationssuch as the desire of a specialinterest group for redistributive legislation in its favorthat would be thought improper in judicial decision-making"); see also Standard Bank & Trust Co. v. Village of Orland Hills, 891 F. Supp. 446, 451 (N.D.Ill.1995) (defendant local government's decision regarding proposed building plans and permits is legislative because it was "free to take into consideration ethical and political issues when deciding whether to accept the proposed business plans").
Moreover, the court's study of the extensive record in this case shows that at heart, this matter is a simple zoning dispute brought by an entity who received an adverse decision. It is true that the Board conducted its proceedings in an orderly fashion, recorded them, and provided notice of hearings and a written decision. However, with the benefit of a full record, these factors alone are not enough to transform the Board into an adjudicative body. Critically, it is undisputed that the Board members were the recipients of vigorous ex parte lobbying efforts from both sides prior to the final vote. They were also authorized to consider what they believed was best for the community when voting. See Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d at 228 (allegedly unethical lobbying of Rockford City Council in connection with applications for a cable television franchise did not violate Sherman Act because the "Rockford City Council was a legislative body, acting as such, and the conduct challenged here thus occurred in a political setting"); see also Petersburg Cellular Partnership v. Board of Sup'rs of Nottoway County, 205 F.3d 688, 694 (4th Cir.2000) ("the zoning permit process .... is a legislative one, involving predictions, value preferences, and policy judgments").
*821 The court is also unpersuaded by Mercatus' emphasis on the Board's decision to consider whether to grant developmental approval separately from site plan approval. According to Mercatus, Trustee Peters' views on how to proceed are suspect because he was a Lake Forest Hospital employee and Lake Bluff's zoning code (§ 10-2-6(E), Pl. Tab 16 at 33-39) does not support Trustee Peters' position. The fact that Trustee Peters was an interested party does not automatically create a material question of disputed fact that must go to a jury because it is not relevant to whether the Board was acting legislatively or adjudicatively. Moreover, if self-interest were dispositive and created an automatic fact question, orders granting summary judgment would be virtually non-existent.
Next, the zoning code simply provides a list of discretionary factors for consideration when making decisions. See, e.g., § 10-2-6(E)(3)(a) ("The proposed use will not have a substantial or undue adverse effect upon adjacent property, the character of the area, or the public health, safety, and general welfare"). It neither contains procedural provisions contrary to the practice followed by the Board nor requires the legislature to "judicialize zoning." Coniston Corp. v. Village of Hoffman Estates, 844 F.2d at 468 ("The decision whether and what kind of land uses to permit does not have the form of a judicial decision. The potential criteria and considerations are too open-ended and ill-defined").
In sum, as the Fifth Circuit has recognized, "when a zoning board acts on an individual request for a variance, it appears in some sense to be making both a legislative and a judicial decision" since the focus on the individual case before the board gives "the process of determining whether a variance should be granted ... distinctly adjudicative characteristics." Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 934 (5th Cir.1988). Nevertheless, zoning decisions are not necessarily adjudicative simply because they are fact-specific.
As discussed above, the undisputed facts in this case show that the Board's decision was inherently political and legislative in nature, and Mercatus' arguments to the contrary simply do not show that the rejection of zoning approval for Mercatus' project was an adjudicative decision. "[L]egislatures are free to range widely over ethical and political considerations in deciding what regulations to impose on society." Coniston Corp. v. Village of Hoffman Estates, 844 F.2d at 468. The court declines to strip them of that power. This means that Mercatus cannot proceed with any antitrust claims based on actions taken to influence the Village Board.
2. Antitrust Claims Based on Non-Lobbying Conduct
Mercatus' federal claims are not limited to conduct directed at the Village Board. Instead, Mercatus asserts that when viewed in the aggregate, a jury could find that Lake Forest Hospital's non-petitioning conduct directed at physicians and media violates the antitrust laws. At the motion to dismiss stage, the court considered Mercatus' allegations that Lake Forest Hospital allegedly: (1) persuaded physicians who had agreed to work at the Mercatus Center to back out of their agreements; (2) interfered with the business relationship between Mercatus and Evanston Northwestern Healthcare; (3) attempted to purchase the Mercatus Center land; (4) misrepresented that other purchasers were interested in purchasing the Mercatus Center land; (5) suggested agreements in restraint of trade with Mercatus in other markets outside of eastern Lake County; and (6) contacted another hospital to disparage Mercatus.
These allegations line up with the evidence presented by Mercatus at the summary *822 judgment stage, including evidence indicating that Lake Forest Hospital's lobbying effort in opposition to the Mercatus project consisted of a Village of Lake Bluff prong, a physicianstrategy prong, and a mediapublic relations prong. To the extent that Mercatus is repeating previously rejected arguments, the fact that the court previously relied on allegations in a complaint and accepted them as true, while today it is reviewing a summary judgment record, is irrelevant. The court stands by its prior order rejecting Mercatus' arguments and declines to revisit it.
This leaves Mercatus with one final arrow in its quiver: that the court erred by viewing its allegations regarding non-petitioning conduct individually and "in a vacuum." Mercatus Response at 4. According to Mercatus, the court must view the evidence regarding non-petitioning conduct in the aggregate, and when viewed in this manner, its antitrust claims are sufficient to withstand summary judgment.
In support, Mercatus directs the court's attention to Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1962). In that case, the Supreme Court considered whether plaintiff Continental Ore (a producer and distributor of a product) was damaged by the defendants, who allegedly attempted to eliminate the plaintiff's suppliers. The Court held that a jury had to determine whether the defendants had refused to deal with the plaintiff and whether the plaintiff failed to take advantage of independent sources of supplies, explaining:
It is apparent from the foregoing that the Court of Appeals approached Continental's claims as if they were five completely separate and unrelated lawsuits. We think this was improper. In cases such as this, plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. The character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole and in a case like the one before us, the duty of the jury was to look at the whole picture and not merely at the individual figures in it.
Id. at 698-99, 82 S. Ct. 1404 (internal quotations and citations omitted).
The Seventh Circuit has recognized that the Continental Ore case "does not address either antitrust standing or antitrust injury." Id. at 717, 82 S. Ct. 1404. This is unhelpful to Mercatus, which is attempting to use this case to shore up its position regarding antitrust injury. Nevertheless, Mercatus is correct that in general, "courts should not be myopic in their assessment of potential violations of the antitrust laws." Kochert v. Greater Lafayette Health Services, Inc., 463 F.3d 710, 716 (7th Cir.2006); see also City of Mishawaka, Ind. v. American Elec. Power Co., Inc., 616 F.2d 976, 986 (7th Cir.1980) ("Injury need not be conclusively shown, but the evidence [in total] must be sufficient to sustain the inference of injury to some extent").
Thus, to survive summary judgment, a plaintiff must point to sufficient evidence showing that the events at issue comprise an anticompetitive scheme culminating in the ultimate injuryhere, the Village Board's decision to reject Mercatus' proposed physician center. See Kochert v. Greater Lafayette Health Services, Inc., 463 F.3d at 716-17. In an attempt to do so, Mercatus asserts that the non-petitioning conduct had "a substantial adverse impact on competition." Response at 5. This sweeping statement ignores the fact that the main potential source of impact on competition was the rejectionby the Village Boardof zoning approval. The record *823 does not tie the non-petitioning conduct noted by Mercatus (even if the court accepts them as true) to the Village Board's adverse action.[7]
In addition, as discussed in the court's prior order, misleading statements and public expressions of opinion about competitors' plans cannot provide the basis for an antitrust claim. Arnett Physician Group, P.C. v. Greater LaFayette Health Services, Inc., 382 F. Supp. 2d 1092, 1096 (N.D.Ind.2005) (rejecting contention that allegations of "`publicity campaign' against construction of a new hospital causes antitrust injury. Public expressions of opinion about competitors' plans cannot provide the basis for an antitrust claim and such conduct is clearly lawful"), citing Schachar v. American Acad. of Ophthalmology, Inc., 870 F.2d 397, 400 (7th Cir.1989) ("[i]f such statements should be false or misleading or incomplete or just plain mistaken, the remedy is not antitrust litigation but more speech-the marketplace of ideas").
The court also adheres to its prior ruling that the refusal to deal with a competitor is not an antitrust violation. Schor v. Abbott Labs., 457 F.3d 608, 610 (7th Cir.2006) ("antitrust law does not require monopolists to cooperate with rivals.... Cooperation is a problem in antitrust, not one of its obligations") (emphasis in original).
Moreover, to the extent that Mercatus is alleging that Lake Forest Hospital entered into agreements in restraint of trade, see Pl. SOF ¶ 12, the court previously noted concerns regarding Mercatus' standing to pursue this argument. Mercatus did not address these concerns in its summary judgment filings, and the court will not construct arguments on its behalf. The court also notes that it appears that these facts are more germane to Mercatus' state law claims of tortious interference with Mercatus' prospective economic advantage based on alleged attempts by Lake Forest Hospital to affect its relationships with physicians and Evanston Northwestern Healthcare (Counts VI & VII).
For all of these reasons, the court finds that Lake Forest Hospital is entitled to summary judgment as to Mercatus' federal antitrust claims (Counts IV).
3. State Claims
This leaves Mercatus' state law claims for tortious interference. If the court eliminates a plaintiff's federal claims, it may exercise its discretion and dismiss supplemental state law claims without prejudice. See 28 U.S.C. § 1367(c)(3); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.1999) ("we pause to emphasize that it is the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial"). This is not an absolute rule. Groce v. Eli Lilly & Co., 193 F.3d at 501. Nevertheless, given the disposition of the federal claims and the nature of the remaining state claims, the court, in an exercise of its discretion, declines to exercise supplemental jurisdiction over the remaining state law claims.
III. Conclusion
For the reasons stated above, Lake Forest Hospital's motion for summary judgment *824 [# 105] is granted as to Mercatus' federal claims (Counts IV), and the court declines to exercise supplemental jurisdiction over Mercatus' state law claims (Counts VI & VII). The clerk is directed to enter a Rule 58 judgment and to terminate this case from the court's docket.
NOTES
[1] The court previously dismissed the claims against the Village of Lake Bluff and Village Trustees Michael Peters, David Barkhausen, and Rick Lesser for failure to state a claim, leaving Lake Forest Hospital as the sole defendant.
[2] It appears that an attorney named Sandy Stein was also present during at least one Board meeting. Pl.Ex. 14 at 40:91-6. The parties regrettably do not identify this person in their Rule 56.1 statements or summary judgment filings, so the court cannot ascertain who his/her client might be. This problem is illustrative of the issues the court faced when addressing the summary judgment motion: the parties generally assume that the court is familiar with the large cast of characters and the chain of events at the heart of the parties' dispute and do not consistently provide identifying details in their filings. This practice, coupled with the parties' decision to omit any summary of the facts from their filings and to instead rely only on their Rule 56.1 statements, contributed to the delay in resolving the instant motion for summary judgment.
[3] Lake Bluff's zoning code permits it to deny approval for a site plan based on the following criteria: (1) the site plan application is materially incomplete; (2) the proposed site plan fails to meet applicable zoning standards; (3) the proposed site plan is detrimental to the use and enjoyment of the surrounding property; (4) the proposed site plan creates undue traffic congestion or safety hazards; (5) the site plan landscaping does not provide adequate shielding from or for nearby uses; (6) the proposed site plan creates unreasonable drainage or erosion problems; (7) the proposed site plan places unwarranted burdens on utility systems; and (8) restrictions related to the Central Business District (not applicable to the Mercatus project). See Lake Bluff Zoning Code § 10-1-9(D)(4), 10-1-9(E)(1)-(8), Def. Ex. 14 at XX-XXX-XX.
[4] In support of its statement of fact regarding the three pronged approach, Mercatus points to deposition testimony of Damon Havill, director of planning and business development for Lake Forest Hospital. The court agrees with Mercatus' characterization of Mr. Havill's testimony. Lake Forest Hospital's denial of the corresponding portions of Mercatus' Rule 56.1 statement is thus unavailing, as Mr. Havill said what he said. Thus, Lake Forest Hospital cannot redline portions of Mr. Havill's deposition.
[5] Unsurprisingly, Lake Forest Hospital disagrees with Mr. Durkins' views. However, the court declines to accept Lake Forest Hospital's invitation to reject Mr. Durkin's report wholesale as Mr. Durkin considered evidence in the record that a fact-finder could find was consistent with his views. See, e.g., Pl. Ex. 8 at 178-180 (CEO of Lake Forest Hospital testified that he spoke with staff at Highland Park Hospital, and Advocate Condell Medical Center to urge them not to support the project); Pl.Ex. 73 (emails between a physician liaison at Lake Forest Hospital to Lake Forest Hospital's CEO after the Village Board and Evanston Northwestern Hospital withdrew their support for Mercatus and lauding Lake Forest Hospital for its successful efforts to prevent Mercatus from "invad[ing] other territories around the Suburbs!!!").
[6] Mercatus amended its complaint after the court issued its decision ruling on the motion to dismiss. The amended complaint removed the counts directed at the Village defendants and added three new antitrust claims directed at Lake Forest Hospital, but did not otherwise change the allegations directed at Lake Forest Hospital.
[7] The court acknowledges Mercatus' assertion that Lake Forest Hospital provided false or misleading information to try to convince potential tenants to stay away. According to Mercatus, this meant that Mercatus lacked key tenants and thus could not have successfully proceeded even with the Village of Lake Bluff's approval. From an injury perspective, however, the Village did not give its approval. In any event, as discussed below, the actions at issue are misleading statements and expressions of opinion about competitors' plans and thus do not support a finding of antitrust injury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386065/ | 695 F. Supp. 2d 609 (2010)
FLEXSYS AMERICA LP, Plaintiff,
v.
KUMHO TIRE U.S.A., INC., et al., Defendants.
Case No. 5:05CV156.
United States District Court, N.D. Ohio, Eastern Division.
February 8, 2010.
*610 John C. Fairweather, Amanda M. Leffler, Lisa S. Delgrosso, Brouse McDowell, David C. Minc, Akron, OH, Robert M. Masters, Bhaskar Kakarla, Brock S. Weber, Elizabeth M. Roesel, Erin Sears, Timothy P. Cremen, Paul, Hastings, Janofsky & Walker, Washington, DC, Jun Ji, Broad & Bright, Beijin, China, Qin Shi, Paul Hastings Janofsky & Walker, Palo Alto, CA, for Plaintiff.
Benjamin C. Sasse, Robert J. Hanna, Tucker, Ellis & West, Cleveland, OH, David B. Perry, Maureen A. Sheehy, Alexandra Sepulveda, Gia L. Cincone, Jeb B. Oblak, Kyle Vos Strache, Mark T. Jansen, Mehrnaz Boroumand, Nancy L. Tompkins, Townsend & Townsend & Crew, Guy W. Chambers, Duane Morris, San Francisco, CA, Vision L. Winter, O'Melveny & Myers, William H.V. Park, Kim Park Choi & Yi, Los Angeles, CA, David G. Utley, Gregory *611 H. Collins, Davis & Young, Clay K. Keller, Philip R. Wiese, Buckingham, Doolittle & Burroughs, Akron, OH, Manni Li, Law Office of Nicholas T. Hua, Beverly Hills, CA, Marcia Henninger Sundeen, Michael M. Shen, Scott Cunning, T. Cy Walker, Kenyon & Kenyon, Paul J. Zegger, Stanton T. Lawrence, III, Sidley Austin, Washington, DC, Mark J. Skakun, Buckingham, Doolittle & Burroughs, Canton, OH, for Defendants.
MEMORANDUM OPINION
SARA LIOI, District Judge.
Plaintiff Flexsys America LP (Plaintiff or Flexsys) filed the above-captioned case on January 28, 2005, alleging infringement of several of its patents by defendants Kumho Tire USA, Inc., Kumho Tire Co., Inc., and Korea Kumho Petrochemical Co., Ltd. (Kumho), Sinorgchem Co., Shandong Sinorgchem International Chemical Industry Co., Ltd., Sinorgchem Co., Tai'an, Tongling Xinda Chemical Co., Ltd., Anhui Sinorgchem Technology Co., Ltd., and Jiangsu Sinorgchem Technology Co., Ltd. (Sinorgchem).[1] The patents-in-suit all relate to the processes used to make antidegradant additives for tires and other rubber products.
A court's first task in determining whether an accused device or process infringes a patent is to construe the claims to ascertain their proper scope. Lockheed Martin Corp. v. Space Systems/Loral, Inc., 324 F.3d 1308 (Fed.Cir.2003). Accordingly, the parties came before the Court on October 30, 2009 for a hearing on the proper construction to be accorded the claims in the subject patents, commonly referred to as a Markman hearing.[2]See Markman v. Westview Instruments, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). At the Court's request, the parties submitted pre and post-hearing briefs on a variety of issues relating to claim construction. Upon consideration of the parties' briefs, argument, and the presentation of exhibits, the Court construes the disputed terms as set forth herein.
I. Background
For purposes of this litigation, Plaintiff is the holder of three patents: United States Patent No. 5,117,063 (the '063 patent), United States Patent No. 5,453,541 (the '541 patent), and United States Patent No. 5,608,111 (the '111 patent). The '541 patent, issued on a continuation-in-part application, is based on the '063 patent.[3] The '111 patent, in turn, is based on a continuation of the '541 patent. While the '541 patent was previously dismissed from this suit, the parties agree that it is relevant for purposes of claim construction.[4] (Doc. No. 226 at 3.)
The Process
The patents-in-suit set forth a new, environmentally-friendly method for making 4-aminodiphenylamine (4-ADPA) and its alkylated derivatives, namely alkylated p-phenylenediamines. These derivatives are used as anti-degradants in automobile tires. The patents set forth a three-step *612 process: (1) the coupling of aniline and nitrobenzene to produce 4-ADPA intermediates; (2) hydrogenating the 4-ADPA intermediates into 4-ADPA; and (3) alkylating 4-ADPA to form the antidegradant additive, N-(1,2-dimethylbutyl)-N'-phenyl-p-phenylemediamine (6PPD).
The focus of the patents-in-suit is the coupling step. During this initial phase, aniline is combined directly with nitrobenzene in an environment containing a suitable base, solvent, and protic materiala substance, such as water, which is capable of donating a proton to the reaction. The '063 patent teaches that control of the protic material during this step is important. ('063 patent, col. 4, ll. 31-39.) Too little protic material will result in a nonselective reaction containing too much of the undesired product and too little of the desired product. In contrast, too much protic material will inhibit the reaction and result in low yield. (Id.)
The earliest patent, the '063 patent, represented a significant departure from the traditional method of making antidegradant additives. Prior to Plaintiff's invention, the conventional process for creating 6PPD involved coupling aniline with chlorinated nitrobenzene. By eliminating chlorine from the process, the '063 inventors were able to produce the desired 6PPD without the highly corrosive chlorinated waste by-products. The same chlorine-free process was carried through the '541 and '111 patents.
In 1997, Sinorgchem began working on its own process for producing 4-ADPA and 6PPD. Sinorgchem acknowledges that it was aware of the '063 and '111 patents, but claims that it understood that the process outlined in those pre-existing patents relied on the presence of protic material, i.e., water, in amounts less than 4% of the reaction mixture volume when aniline was the solvent. Because Sinorgchem's process always utilized water in amounts greater than 10%, Defendants believed that they could produce ADPA and 6PPD without infringing upon Plaintiff's patents.
Litigation History
The parties have already litigated this matter before the International Trade Commission (ITC) on two separate occasions. The first action, In re Certain Rubber Antidegradants, Components Thereof, and Products Containing Same (Antidegradants I), Inv. No. 337-TA-553, was filed in 2005. The key issue in that action was the construction to be given to the term "controlled amount" of protic material in the '063 and '111 patents when aniline is the solvent. The Administrative Law Judge (ALJ) rejected Plaintiff's definition of "controlled amount," which contained unspecified upper and lower limits designed to ensure the desired selectivity for 4-ADPA intermediates without inhibiting the reaction of nitrobenzene and aniline, in favor of Defendants' definition, which focused on the presence of no greater than 4% protic material.
The ITC rejected the ALJ's definition, adopted Flexsys's construction, and determined that "controlled amount" of protic material was "an amount up to that which inhibits the reaction of aniline with nitrobenzene." As discussed in detail below, the Federal Circuit reversed the ITC's decision, adopting, instead, the definition previously urged by Defendants and approved by the ALJ. Sinorgchem v. ITC, 511 F.3d 1132 (Fed.Cir.2007).
Plaintiff filed a second action before the ITC on May 12, 2008. In re Certain Rubber Antidegradants, Antidegradant Intermediates, and Products Containing Same (Antidegradants II), Inv. No. 337-TA-652. On September 15, 2008, the ALJ granted Defendants' motion for summary judgment and dismissed the action. The ITC affirmed the decision, and Flexsys did not appeal.
*613 Plaintiff filed the present action on January 28, 2005. The matter has been stayed on multiple occasions in anticipation of rulings in the ITC actions. On April 24, 2009, the Court granted Plaintiff's motion to reopen the case. (Doc. No. 184.) Subsequently, the Court conducted a Case Management Conference and issued a Case Management Plan and Trial Order (CMPTO).
II. Legal Standard
Claim construction is a matter of law to be decided exclusively by the Court. Markman v. Westview Instruments, 52 F.3d 967, 970-71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). "[T]he claims of a patent define the invention to which the patentee is entitled the right to exclude." Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1115 (Fed. Cir.2004). Claim terms are "generally given their ordinary and customary meaning." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). "The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective date of the patent application." Id. at 1313. Absent an express intent to the contrary, a patentee is presumed to have intended the ordinary meaning of a claim term. York Prods. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996).
In determining the proper construction of a claim, a court begins with the intrinsic evidence of record, consisting of the claim language, the patent specification, and the prosecution history (if in evidence). Phillips, 415 F.3d at 1313. "Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language." Vitronics, 90 F.3d at 1582. "The appropriate starting point [. . .] is always with the language of the asserted claim itself." Comark Communications v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir.1998).
The claims also "must be read in view of the specification, of which they are a part." Phillips, 415 F.3d at 1315. The specification "is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Vitronics, 90 F.3d at 1582. By expressly defining terms in the specification, an inventor may "choose [. . .] to be his or her own lexicographer," thereby limiting the meaning of the disputed term to the definition provided in the specification. Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 990 (Fed.Cir.1999). Although claims are interpreted in light of the specification, this "does not mean that everything expressed in the specification must be read into all the claims." Raytheon Co. v. Roper Corp., 724 F.2d 951, 957 (Fed.Cir.1983). For instance, limitations from a preferred embodiment described in the specification generally should not be read into the claim language. See Comark, 156 F.3d at 1187. However, it is a fundamental rule that "claims must be construed so as to be consistent with the specification." Phillips, 415 F.3d at 1316. Therefore, if the specification reveals an intentional disclaimer or disavowal of claim scope, the claims must be read consistent with that limitation. Id.
Courts also may consider the patent's prosecution history, if in evidence. The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution. See Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995). The prosecution history "constitutes a public record of the patentee's *614 representations concerning the scope of and meaning of the claims, and competitors are entitled to rely on those representations when ascertaining the degree of lawful conduct." Seachange Int'l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1369 (Fed.Cir. 2005) (quoting Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 957 (Fed.Cir.2000)). The prosecution history may reveal "whether the patentee disclaimed or disavowed subject matter, narrowing the scope of the claim terms." Id. (internal citation omitted). "Where an applicant argues that a claim possesses a feature that the prior art does not possess in order to overcome a prior art rejection, the argument may serve to narrow the scope of otherwise broad claim language." Id. (citations omitted). Any such disclaimer must be clear and unambiguous. Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323-25 (Fed.Cir.2003). Courts must remain mindful, however, that "because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Phillips, 415 F.3d at 1317 (citations omitted).
In most circumstances, analysis of the intrinsic evidence alone will resolve claim construction disputes. See Vitronics, 90 F.3d at 1583. Extrinsic evidence may be considered, as it "`can shed light on the relevant art,' but is less significant than the intrinsic record in determining the `legally operative meaning of disputed claim language.'" C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed.Cir. 2004) (quoting Vanderlande Indus. Nederland BV v. ITC, 366 F.3d 1311, 1318 (Fed. Cir.2004)). Courts should not rely on extrinsic evidence in claim construction to contradict the meaning of claims discernable from examination of the claims, the written description, and the prosecution history. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed.Cir.1999) (citing Vitronics, 90 F.3d at 1583). However, the court may appropriately consult "trustworthy extrinsic evidence to ensure that the claim construction it is tending to from the patent file is not inconsistent with clearly expressed, plainly apposite, and widely held understandings in the pertinent technical field." Id. Extrinsic evidence "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317. All extrinsic evidence should be evaluated in light of the intrinsic evidence. Id. at 1319.
In construing claims, the Court determines whether or not a term requires construction. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.Cir.1997). The Court is not required to accept a construction of a term, even if the parties have stipulated to it, but instead may arrive at its own construction of claim terms, which may differ from the constructions proposed by the parties. Pfizer, Inc. v. Teva Pharms., USA, Inc., 429 F.3d 1364, 1376 (Fed.Cir.2005).
III. The Disputed Claim Terms and the Parties' Constructions
The parties seek construction of a number of claim terms and phrases, several of which recur throughout one or both of the patents-in-suit. The disputes center around four terms: "controlled amount of protic material," "the amount of protic material [. . .] is controlled," "controlling the amount of said protic material [. . .]," and "suitable solvent system." The parties agree that, where a disputed term appears in both the '063 and the '111 patents, it should be given the same construction.
*615 A. "Controlled Amount of Protic Material"
The phrase "controlled amount of protic material" appears in claims 30 and 61 of the '063 patent, and claims 7, 11, and 29 of the '111 patent. Flexsys argues that "controlled amount of protic material" is "an amount of protic material up to that which inhibits the reaction of aniline with nitrobenzene and a minimum amount which is necessary to maintain the selectivity of the desired products." The term "inhibits," in turn, refers to "when the reaction of aniline with nitrobenzene is no longer significant."
Defendants urge the Court to adopt the definition approved by the Federal Circuit in Sinorgchem; namely, that a "controlled amount" of protic material is "an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H2O based on the volume of the reaction mixture when aniline is utilized as the solvent." Sinorgchem, 511 F.3d at 1140. (Doc. No. 213, Claims Construction Chart at 1-2.)
B. "The Amount of Protic Material [. . .] is Controlled"
The phrase "amount of protic material in step (b) is controlled" appears in claims 7 and 11 of the '111 patent. Plaintiff proposes a construction consistent with what it believes is the plain and ordinary meaning of these words; namely, "the amount of protic material is adjusted, controlled, managed, maintained or regulated." Defendants suggest that "is controlled" has the same meaning as "controlled amount" and should be given the same treatment as the latter term received from the Federal Circuit in Sinorgchem. (Claims Construction Chart at 2.)
C. "Controlling the Amount of Said Protic Material [. . .]"
The phrase "controlling the amount of said protic material in step (a) or (b) to provide a selectivity of at least 0.97, wherein the selectivity is the molar ratio of 4-ADPA intermediates" appears in claim 23 of the '111 patent. Flexsys, again, advocates for what it views as the plain and ordinary meaning"adjusting, controlling, managing, maintaining, or regulating how much protic material is present in the reaction of aniline (or substituted aniline derivatives) and nitrobenzene so that the reaction has a selectivity of at least 0.97, where selectivity is the molar ratio of 4-ADPA intermediates to undesired products [. . .]." (Claims Construction Chart at 1-2.) Defendants argue that the phrase "controlling," too, has been used interchangeably in the patents with "controlled amount" and should receive the same treatment as that given to "controlled amount" by the Federal Circuit.[5] (Claims Construction Chart at 2-3.)
D. "Suitable Solvent System"
The phrase "suitable solvent system" appears in claims 30, 31, 39, 41, 43, 61, 62, 70, 72, and 74 of the '063 patent, and claims 7, 11, 23, and 29 of the '111 patent. Plaintiff proposes that the term refers to "a solvent or mixture of solvents." Defendants seek a more specific definition: "a solvent or mixture of solvents suitable for bringing aniline and nitrobenzene into reactive contact." (Claims Construction Chart at 1.)
V. The Federal Circuit's Decision in Sinorgchem
This Court does not write on a clean slate. As noted above, the Federal Circuit has previously given construction to the *616 central term at issue here: "controlled amount of protic material." In Sinorgchem, the court turned to a portion of the '063 patent specification, which provided:
A "controlled amount" of protic material is an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H2O based on the volume of the reaction mixture when aniline is utilized as the solvent.
('063 patent, col. 4, ll. 48-52.) The Federal Circuit found that by this language, the drafter had expressly defined the term "controlled amount" when aniline was the solvent. In so ruling, the court noted that the term "controlled amount" was set off by quotation marks"often a strong indication that what follows is a definition." Sinorgchem, 511 F.3d at 1136. Further, the term was followed by "is," which signified that the patentee was acting as his own lexicographer. Id. The Federal Circuit concluded that "the drafter clearly, deliberately, and precisely defined the term `controlled amount' of protic material [. . .]." The court found telling the fact that "[e]lsewhere in the same paragraph, the specification again refers to the 4% limit." Id.
In reaching this conclusion, the court rejected the ITC's finding that language in the specification indicating that the amount of protic material will vary depending on the type of base, amount of base, and base cation used demonstrated that "e.g., up to about 4% H2O" was simply an example and was not part of the express definition. According to the Federal Circuit, this vague language could not override the express definitional language. Sinorgchem, 511 F.3d at 1137. Ultimately, the court concluded that "[w]hen aniline is used as the solvent, the express definition is neither ambiguous nor incomplete the `controlled amount' is `up to about 4% H2O based on the volume of the reaction mixture'and we need look no further for its meaning." Id. at 1138. This determination was further bolstered by the fact that, elsewhere in the specification, a different limit of "about 8% water" was set forth for the "controlled amount" of protic material when DMSO is the solvent.[6]Id.
In a strongly worded dissent, Judge Newman criticized the ruling, noting that the majority's opinion disregarded examples in the patent wherein amounts of protic material in excess of 4% were utilized when aniline was the solvent. The dissent found that the decision to focus on the language contained in Example 3 caused the majority to ignore clear language located elsewhere in the specification and, in doing so, "exclude a major part of the invention." Sinorgchem, 511 F.3d at 1141. For their part, the majority considered the fact that other examples, such as Example 10, appeared to utilize amounts of protic material greater than 4% in different circumstances, noting that "[w]here, as here, multiple embodiments are disclosed, we have previously interpreted claims to exclude embodiments where those embodiments are inconsistent with unambiguous language in the patent's specification or prosecution history." Id. at 1138 (citing Telemac Cellular Corp., 247 F.3d at 1326 (Fed.Cir.2001)).
VI. Deference Given to the Federal Circuit's Decision in Sinorgchem
Before construing the aforementioned claim terms, the Court must determine what weight is to be afforded the Federal Circuit's decision in Sinorgchem. In its *617 decision in Texas Instruments v. Cypress Semiconductor Corp., the Federal Circuit ruled that decisions of the ITC had no preclusive effect in subsequent actions in district court, 90 F.3d 1558, 1559 (Fed.Cir. 1996) ("[T]he district court can attribute whatever persuasive value to the prior ITC decision that it considers justified.")
In Alloc v. Norman D. Lifton Co., 2007 WL 2089303, 2007 U.S. Dist. LEXIS 52293 (S.D.N.Y. July 18, 2007), the court found that a different standard applies, however, to Federal Circuit decisions on appeal from the ITC. Relying upon the warning in Texas Instruments that "[d]istrict courts are not free to ignore holdings of [the Federal Circuit] that bear on cases before them," 90 F.3d at 1569, the court in Alloc determined that "a district court should afford Federal Circuit claim interpretation on appeal from the ITC a strong presumption of correctness, and deviate only where the party advancing an alternative interpretation provides compelling reasons to do so." 2007 WL 2089303, at *11, 2007 U.S. Dist. LEXIS 52293, at *29.
According to Alloc, the conclusion that Federal Circuit decisions are entitled to a presumption of correctness was supported by "`the importance of uniformity' relied on by the Supreme Court in finding claim construction to be entirely an issue of law for the court to determine." Id. at *10, 2007 U.S. Dist. LEXIS 52293 at *27 (citing Markman, 517 U.S. at 391, 116 S. Ct. 1384). Uniformity in claim construction was in keeping with the laudable goals surrounding the creation of the Federal Circuit in the first place: "to ensure consistent ruling on patent scope, preventing a `zone of uncertainty' which enterprise and experimentation may enter only at the risk of infringement claims." Id. (quoting United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236, 63 S. Ct. 165, 87 L. Ed. 232 (1942)).
Such a conclusion is further supported by the Federal Circuit's warning that subsequent Federal Circuit panels are "not free to ignore precedents set by prior panels of the court." Texas Instruments, 90 F.3d at 1569. Rather, "a subsequent panel will have powerful incentives not to deviate from that prior holding, short of thoroughly justified grounds." Id. As the court in Alloc found, "what is a suggestion to future Circuit panels must be understood as a command to the district courts. Given the greater authority and capacity of the Federal Circuit, a district court should accord prior rulings more deference than would a subsequent Circuit panel." 2007 WL 2089303, at *10, 2007 U.S. Dist. LEXIS 52293, at *27 (emphasis in original.)
In light of the clear mandate from the Federal Circuit, this Court shall afford the Federal Circuit's claim interpretation a strong presumption of correctness, which may only be overcome by compelling reasons such as "evidence or arguments not presented to the Circuit panel or, in the rarest of cases, plain error on the face of the Federal Circuit opinion." Id. at *11, 2007 U.S. Dist. LEXIS 52293 at *29. To defeat this presumption, Flexsys argues both that the Federal Circuit erred in its analysis and that certain arguments and evidence not before the Circuit would have, had they been offered, changed the outcome. The Court finds these arguments neither new nor persuasive. As such, it sees no reason to stray beyond the Federal Circuit's decision.
VII. Claim Construction
"Controlled Amount of Protic Material"
The Federal Circuit previously found that the parties agreed that the term "controlled amount" did not enjoy any well-accepted meaning in the field of chemistry. Sinorgchem, 511 F.3d at 1136. Plaintiff contends that the Circuit erred in reaching *618 this conclusion, and offers new expert testimony to demonstrate the existence of an ordinary and well-accepted meaning.[7]
There is no Well-Accepted Meaning for "Controlled Amount"
The Court approaches Plaintiff's "new" evidence with a healthy dose of skepticism. Extrinsic evidence in the form of expert testimony is less persuasive than the patent and its prosecution history. Phillips, 415 F.3d at 1318. As the court in Phillips explained: "extrinsic evidence consisting of expert reports and testimony is generated at the time of and for the purpose of litigation and thus can suffer from bias that is not present in intrinsic evidence." Id. Thus, with this limitation in mind, the Court turns to Flexsys's new evidence.
Plaintiff's expert, Dr. Robert E. Maleczka, Jr., testified that those of ordinary skill in the art would understand the term "controlled amount" to refer to "an amount of something that is not necessarily quantified but that is present in a regulated amount, regulated at the lower and upper limit, such that one will be able to achieve a desired result through that control." (Markman Hearing Transcript (TR) at 62.) Dr. Maleczka testified that his opinion that "controlled amount" has an accepted meaning was supported by a computer generated search he performed in relevant chemistry publications for the term "controlled amount." (TR at 106.)
The results of this search are less than impressive. While Dr. Maleczka indicated that his search scored 471 hits, the actual number of articles he reviewed was 19.[8] (TR at 110-11.) He further conceded that he found no dictionary definitions for the term "controlled amount," and that none of the articles put the term in quotes to suggest that the term held a particular meaning. (TR at 132, 162-63.) He also admitted that two of the articles he relied upon in forming his opinion were written in 2000 and another was published in 1998. (TR at 171, 173.) Of course, these articles, written years after the '063 patent issued, cannot shed light on the accepted meaning prior to 1991 when the '063 patent application was filed. Finally, Dr. Maleczka failed to show that any of the articles he reviewed treated the term "controlled amount" in the same manner in which he seeks to treat it, as a range with an upper and lower limit. In fact, one of the articles quantified the term as a fixed number, consistent with Defendants' use of the term. (TR at 169.)
Defendants' expert, Dr. Gregory Fu, performed the same computer search, and his results were telling. He testified that while he obtained "hits" for the words *619 "controlled amount," the words did not appear together in the text. Instead, he would find "controlled" in one part of the document and "amount" in another portion of the text. (TR at 217.) Further, while Dr. Fu did testify that the term appeared five times in the Journal of Organic Chemist, he noted that the use of the term five times in the history of a journal that has been in publication for more than 55 years is hardly significant. (TR at 219-220.) The Court agrees, and finds that Plaintiff has failed to set forth sufficient evidence to establish a well-accepted meaning in the chemistry community for the term "controlled amount."
An Express Definition Trumps Any Well-Accepted Meaning
Of course, even if Flexsys had come forward with evidence demonstrating the existence of a common definition for "controlled amount," such a definition would have had to give way to any express definition set forth in the patents. "[A] claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in [. . .] the specification [. . .]." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir. 2002). See Innova/Pure Water, 381 F.3d at 1117 ("Because the inquiry into the meaning of claim terms is an objective one, a patentee who notifies the public that claim terms are to be limited beyond their ordinary meaning to one of skill in the art will be bound by that notification, even where it may have been unintended.")
Flexsys suggests, however, that the Federal Circuit "hedged" and "implicitly invit[ed]" Flexsys to offer evidence of a well-accepted meaning for the term "controlled amount" when it noted that:
On appeal, the ITC relies on expert testimony that "a person of skill in the art would recognize the example of 4[%] water to be limited to the conditions of room temperature and ambient pressure." Br. of Appellee at 22. We attribute no weight to that testimony because the experts did not identify any evidence that those skilled in the art would recognize that "controlled amount," or any term used in the specification, has an accepted meaning in the field of chemistry. Under such circumstances, testimony as to how one skilled in the art would interpret the language in the specification is entitled to little or no weight.
Sinorgchem, 511 F.3d at 1137, n. 3. The observation that the Court could not begin to consider how one skilled in the art would treat the limitation of 4[%] protic material in the absence of evidence of a well-accepted meaning for "controlled amount" cannot be equated to a finding that had such evidence been provided, the outcome would have been different. The Federal Circuit unequivocally found (and this Court agrees) that the drafter had acted as his own lexicographer by "clearly, deliberately[] and precisely" defining the term, Id. at 1136, and, as a result, the Court concluded that it "need look no further" than the express definition for the meaning of "controlled amount." Id. at 1138. Clearly, any evidence of a well-accepted meaning would not have changed this outcome.
The Federal Circuit Did Not Commit Plain Error in Finding an Express Definition for "Controlled Amount"
Plaintiff argues that the Federal Circuit erred in finding that the drafter included an express definition for "controlled amount." Specifically, Flexsys suggests that the Federal Circuit ignored its own precedents relating to the interpretation of the phrase "e.g." The Court disagrees.
The relevant portion of the specification containing the phrase "e.g." provides:
Control of the amount of protic material present in the reaction is important. *620 Generally, when the reaction is conducted in aniline, water present in the reaction in an amount greater than about 4% H2O, (based on volume of the reaction mixture) inhibits the reaction of the aniline with the nitrobenzene to an extent where the reaction is no longer significant. Reducing the amount of water to below the 4% level causes the reaction to proceed in an acceptable manner. When tetramethylammonium hydroxide is utilized as a base with aniline as the solvent, as the amount of water is reduced further, e.g., down to about 0.5% based on the volume of the reaction mixture, the total amount of 4-nitrodiphenylamine and 4-nitrosodiphenylamine increases with some loss in selectivity so that more 2-nitrodiphenylamine is produced but still in minor amounts. Thus, the present reaction could be conducted under anhydrous conditions. A "controlled amount" of protic material is an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H2O based on the volume of the reaction mixture when aniline is utilized as the solvent. The upper limit for the amount of protic material present in the reaction varies with the solvent. For example, when DMSO is utilized as the solvent and tetramethylammonium hydroxide is utilized as the base, the upper limit is about 8% H2O based on the volume of the reaction mixture. In addition, the amount of protic material tolerated will vary with type of base, amount of base, and base cation, used in the various solvent systems. However, it is within the skill of one in the art, utilizing the teachings of the present invention, to determine the specific upper limit of the amount of protic material for a specific solvent, type and amount of base, base cation and the like. The minimum amount of protic material necessary to maintain selectivity of the desired products will also depend on the solvent, type and amount of base, base cation and the like, that is utilized and can also be determined by one skilled in the art.
('063 patent, col. 4, l. 31-col. 5, 1. 4; emphasis added.) Plaintiff cites Verizon Serv. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1305 (Fed.Cir.2007), for the proposition that "Federal Circuit precedent recognizes that, "e.g.," when appearing in a definition, indicates that what follows is an example that illustrates the meaning of the defined term, but does not limit it scope." (Doc. No. 55 at 13, emphasis in original.) Plaintiff's reliance on Verizon is misplaced.
In Verizon, the court looked to a dictionary definition to discern the ordinary meaning of the term "destination." Therein, the dictionary defined the term as "a place which is set for the end of a journey or to which something is sent: place or point aimed at [, e.g.,] when buying your plane tickets always buy through to your farthest [destination]." 503 F.3d at 1305 (quoting Webster's Third New International Dictionary 614 (2002)). In that case, the use of the term "e.g." came after the definition, and clearly was added to announce one possible use of the word "destination" in a sentence.[9]
In contrast, the drafter of the '063 patent used the phrase "e.g." as part of the definition of "controlled amount." Significantly, the phrase "e.g." occurred after the words "controlled amount" appeared in quotations followed by the word "is." The use of quotation marks followed by a definitional term such as "is" or "means" *621 alerts the reader that what follows is a definition.[10]See, e.g., Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328, 1330 (Fed. Cir.2000); Durel Corp. v. Osram Sylvania Inc., 256 F.3d 1298, 1303 (Fed.Cir.2001); Abbott Laboratories v. Teva Pharmaceuticals USA, Inc., 2005 WL 1026746 (D.Del. Apr. 22, 2005).
The fact that Defendants' expert agreed that the definition could have been written without the "e.g." does not change this conclusion. (TR at 252-53.) As Dr. Fu observed, the drafter chose to uses the phrase "e.g." as part of the definition. (TR at 246.) Having done so, the patentee is now bound by that limitation.[11]See Innova/Pure Water, Inc., 381 F.3d at 1117.
The Existence of Examples Using > 4% Water When Aniline is the Solvent Does Not Justify Deviation from Sinorgchem
Flexsys suggests that its definition for "controlled amount" must be adopted by this Court because only its definition can encompass all of the examples. In support, Flexsys notes that Examples 9 and 10 in the '063 patent and Examples 13, 15, and 17 in the '111 patent all utilize water in amounts greater than 4% when aniline is the solvent.[12] This argument is not new, and was rejected by the Federal Circuit in Sinorgchem. While noting that Example 10 utilized more than 4% protic material, the Federal Circuit found that it was permissible "to exclude embodiments where those embodiments are inconsistent with unambiguous language in the patent's specifications or prosecution history." Sinorgchem, 511 F.3d at 1138 (citing Telemac Cellular Corp., 247 F.3d at 1326). The court in Sinorgchem found such a course of action particularly appropriate in light of the fact that Example 10 was not even directed toward illustrating the amount of protic material to be used in the reaction but was, instead, offered to illustrate "the reaction of aniline, nitrobenzene and tetramethylammonium hydroxide dehydrate under anaerobic conditions at 50 degrees C." Id. at 1139 (quoting '063 patent, col. 11, ll. 61-63).
A similar analysis may be applied to the other examples highlighted by Flexsys. *622 None of these examples are directed to illustrating the effect of varying the amount of protic material on the yield of the 4-ADPA. The purpose of Example 7 is to demonstrate how the ratio of p-NDPA/4-NPDA can be controlled by the ratio of aniline/nitrobenzene. ('063 patent, col. 10, ll. 50-52.) Example 13 illustrates the continuous removal of water through distillation ('111 patent, col. 14, ll. 40-43), Example 15 speaks to how a variety of different phase transfer catalysts can be employed during the reaction ('111 patent, col. 15, ll. 55-56), and Example 17 shows under what conditions the amount of phenazine can be reduced ('111 patent, col. 17, ll. 12-15.)
The only examples that are designed to illustrate the impact of varying the amount of protic material are 3 and 8.[13] (TR at 39.). Example 3 clearly teaches that when aniline is the solvent, the controlled amount of protic material is about 4%, while Example 8 teaches that the controlled amount is about 8% when DMSO is utilized as a solvent.[14]Sinorgchem, 511 F.3d at 1138. Further, Table 2, found in Example 3, demonstrates that as the amount of water in the reaction increases above a threshold of about 4%, the yield decreases "very significantly and, in fact, selectivity decreases." (TR at 226; '063 patent, col. 9, ll. 32-44.) As the Federal Circuit found, the examples directed to the proper amount of protic material, the focal point of the analysis of the term "controlled amount" of protic material, reinforce the express definitional language setting the proper amount of protic material at about 4% when aniline is used as the solvent, and about 8% when DMSO is used. Sinorgchem, 511 F.3d at 1139.
Additional reasons counsel against relying upon the examples employing more than 4% of protic material to alter the express definition found by the Circuit. First, Examples 13, 15, and 17 appear only in the '111 patent and, therefore, were not part of the '063 prosecution history. "Additional examples included in the specification of the continuation-in-part application that led to the '111 patent cannot alter the meaning of the term as it appears in the [earlier] '063 patent." Sinorgchem, 511 F.3d at 1139, n. 5. But see Microsoft Corp. v. Multi-Tech Sys., 357 F.3d 1340, 1349 (Fed.Cir.2004).
Second, Examples 13, 15, and 17 utilize distillation, i.e., boiling off of water, during the reaction. (TR at 147.) While these examples may start with more than 4% protic material, the water is reduced over the course of the reaction in order to reach the optimal amount. (TR at 147-48.) Even Dr. Maleczka admitted that, with enough aniline, it would be possible to drive the water below 4%. (TR at 148-50.) The fact that these examples begin with more than 4%, therefore, does not constitute compelling reasons to revisit the Federal Circuit's decision.[15]
*623 Prosecution History Not Before the Federal Circuit Does not Cast Doubt on the Decision in Sinorgchem
When the '063 patent issued, Example 10 did not identify a specific amount of protic material. The Federal Circuit found it "significant" that no amount was stated, and noted that the amount could "only be determined by a complex calculation." Sinorgchem, 511 F.3d at 1139. During the prosecution of the 541' patent, applicants submitted the calculation of the amount of water for Example 10-9.8%. At the Markman hearing in the present case, Defendants' expert testified that one of ordinary skill in the art could perform the calculation (TR 235), while Dr. Maleczka testified that the calculation was actually "pretty routine" (TR at 89).
This "new" evidence would not have changed the result. In finding Example 10 to be entitled to "little weight," Sinorgchem, 511 F.3d at 1139, the Circuit underscored the fact that Example 10 was not even directed to the importance of controlling the amount of protic material. Id. Moreover, the Circuit clearly knew that the amount of protic material in Example 10 exceeded 4% when it determined that it was appropriate to exclude this "preferred embodiment" from the interpretation of the term "controlled amount" of protic material. Id. at 1138-1139. Having the specific figure of 9.8% would not have changed the Circuit's opinion that Example 10 was "merely one of twenty-one distinct examples set out in the two specifications," Id. at 1138, and that this particular example happened to fall outside of the claim definition. See id. at 1139.
Likewise subsequent "corrections" to Example 9 do not call into question the Circuit's decision. In 1995, four years after the '063 patent issued, Flexsys corrected Example 9 in the '111 patent to reflect that the water content was not a constant amount during the reaction but actually ranged between 4.3% and 9.6%. (Doc. No. 227 at 17.) This "new evidence" adds little to the analysis. As previously noted, Example 9 is not restricted to demonstrating the effects of varying the amount of protic material, but also illustrates the "the effect that increasing the amount of the base has on yields of 4-NDPA and p-NDPA [. . .]." ('063 patent, col. 11, ll. 36-39; TR at 139.) Because this example varies both the base and the protic material, its usefulness in testing the definitional language found by the Circuit in the '063 patent is limited. Moreover, corrections made years after the '063 patent issued cannot begin to shed light on the meaning of "controlled amount" the drafters intended at the time of drafting the '063 patent. See Sinorgchem, 511 F.3d at 1139, n. 5.
Flexsys's Proposed Definition Would Fail for Indefiniteness
In response to the Court's inquiry regarding whether Plaintiff was permitted to argue both that the term "controlled amount of protic material" had an ordinary meaning to one skilled in the art and that the term had a specific meaning in the patent, Flexsys stated that its proffered definition merely "built upon" the accepted meaning set forth by its expert, Dr. Maleczka. (Doc. No. 255 at 11-12.) Whatever its origin, the Court questions whether such a definitionan amount of protic material up to that which inhibits the reaction *624 of aniline with nitrobenzene and a minimum amount which is necessary to maintain the selectivity of the desired productswould be patentable.
"A patent holder should know what he owns, and the public should know what he does not. For this reasons, the patent laws require inventors to describe their work in `full, clear, concise, and exact terms,' 35 U.S.C. § 112, as part of the delicate balance the law attempts to maintain between inventors, who rely on the promise of the law to bring the invention forth, and the public, which should be encouraged to pursue innovations, creations, and new ideas beyond the inventor's exclusive rights." Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731, 122 S. Ct. 1831, 152 L. Ed. 2d 944 (2002).
Paragraph 2 of 35 U.S.C. § 112 requires that the specification of a patent "conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." Because claims define the limits of a patentee's right to exclude, "the patent statute requires that the scope of the claims be sufficiently definite to inform the public of the bounds of the protected invention, i.e., what subject matter is covered by the exclusive rights of the patent. Otherwise, competitors cannot avoid infringement, defeating the public notice function of patent claims." Halliburton Energy Services, Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed.Cir.2008) (citing Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1581 (Fed.Cir.1996)). "The statutory requirement of particularity and distinctness in claims is met only when [the claims] clearly distinguish what is claimed from what went before in the art and clearly circumscribe what is foreclosed from future enterprise." United Carbon Co., 317 U.S. at 236, 63 S. Ct. 165.
Dr. Maleczka testified that while the patents-in-suit do not provide an enumeration of the level of selectivity that is desired, the patents-in-suit give "some sense [. . .] of what's achievable in terms of selectivity." (TR at 187.) He admitted, however, that at the point that selectivity is no longer maintained at an acceptable fashion will vary from chemist to chemist, and situation to situation (TR at 191), and "is going to be dependent upon the chemistry and, again, in part dependent on the other considerations as to why you're doing this particular reaction." (TR at 188.) As for the definition of "inhibits," which Plaintiff defines as "when the reaction of aniline with nitrobenzene is no longer significant," Dr. Maleczka admitted that the point in which the reaction is "no longer significant" is "a bit of a judgment call." (TR. at 192.) He also noted that it, too, could vary from chemist to chemist, but added that "the inventors do give you some sense of where they're making that call." (Id.)
Plaintiff's "Goldilocks" definition of "controlled amount of protic material"not too little and not too much, but just the right amountwould render the patents indefinite. Here, there is no defined standard for judging whether selectivity has been maintained and at what point the reaction of aniline with nitrobenzene is no longer significant. Rather, the claim language would be entirely dependent on the "unrestrained, subjective opinion of a particular individual purportedly practicing the invention," rendering the patents indefinite. See, e.g., Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed.Cir. 2005) (patent was indefinite where the term "aesthetically pleasing" depended upon an undefined standard); Halliburton Energy Services, Inc., 514 F.3d at 1250 (claim term "fragile gel" rendered a patent indefinite due to the ambiguity in interpreting that phrase).
*625 For the reasons set forth above, the Court defines the term "controlled amount of protic material" as follows: "an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H2O based on the volume of the reaction mixture when aniline is utilized as the solvent."
Controlling the Amount of Said Protic Material
The Amount of Protic Material in Step(b) is Controlled
The parties also seek construction of two similar terms: "controlling the amount of said protic material in step (a) or (b) to provide a selectivity of at least 0.97, wherein the selectivity is the molar ratio of 4-ADPA intermediates" and "the amount of protic material in step (b) is controlled." The Court agrees with Defendants that these terms have been used interchangeably with "controlled amount of protic material," and are entitled to a similar construction.
The Federal Circuit gives like treatment to terms that are used within the specifications interchangeably. In Tehrani v. Hamilton Med. Inc., the court applied the same interpretation to the terms "indicative of" and "representing" because "the intrinsic evidence indicates that the patentee meant for these two terms to be interchangeable and to carry the same meaning within the claims." 331 F.3d 1355, 1361 (Fed.Cir.2003). Similarly, in Tate Access Floors, Inc v. Maxcess Techs., the court construed the terms "inner layer" and "inner body portion" in the same manner because "they are used interchangeably in the specification." 222 F.3d 958, 968 (Fed. Cir.2000).
Turning to the specifications for the patents-in-suit, it is clear that Flexsys never drew a distinction between the terms "controlled amount," "controlling the amount," and "is controlled." For example, the specifications provide: "[c]ontrol of the amount of protic material present in the reaction is important" ('065 patent, col. 4, ll. 30-32; '111 patent, col. 5. 11. 27-28 and col. 10, ll. 30-31); "[a] `controlled amount' of protic material is an amount up to that which inhibits the reaction [. . .]" ('065 patent, col. 4, ll. 48-52; '111 patent, col. 5, ll. 43-47); "[t]he present invention relates to methods for preparing 4-aminodiphenylamine [. . .] wherein the amount of protic material, e.g., is controlled, to produce a mixture [. . .]" ('065 patent, col. 4, ll. 48-52; '111 patent, col. 1, ll. 15-22); and "the continuous distillation of protic material is the currently preferred method for controlling the amount of protic material [. . .]."[16] ('111 patent, col. 6, ll. 40-44) (emphasis added).
As for the claims, it is clear in claim 7 of the '111 patent that the phrase "the amount of protic material in step (b) is controlled" is referring to the "controlled amount of protic material" that is identified at column 21, lines 4-5, and has been previously defined by the Court. The same analysis applies to claim 11. As for claim 23, "controlling the amount of said protic material in step (a) or (b) to provide a selectivity of at least 0.97, wherein the selectivity is the molar ratio of 4-ADPA intermediates" also corresponds to the "controlled amount" of protic material that is critical to the reaction and has previously been defined.
Thus, the Court construes "the amount of protic material in step (b) is controlled" to mean "the amount is controlled *626 so that it is an amount up to that which inhibits the reaction of aniline with nitrobenzene, e.g., up to about 4% H2O based on the volume of the reaction mixture when aniline is utilized as the solvent." The phrase "controlling the amount of protic material" in claim 23 also has the same meaning as "is controlled" and "controlled amount." As for the second half of the term, "to provide a selectivity of at least 0.97, wherein the selectivity is the molar ratio of 4-ADPA intermediates to undesired products," the Court finds that a person of ordinary skill in the art is readily familiar with the formula set forth in this phrase and, therefore, no construction is necessary.
Suitable Solvent System or Solvent System
The final term for which the parties have sought construction is "suitable solvent system" or "solvent system." The parties offer similar interpretations for this phrase, suggesting that there is substantial agreement as to the construction of this term. Nonetheless, there is some dispute. While both sides agree that a "suitable solvent system" or a "solvent system" is a "solvent or mixture of solvents," Defendants wish to add to the definition the language "suitable for bringing aniline and nitrobenzene into reactive contact."
The Court agrees with Plaintiff that this additional language is superfluous. Indeed, to adopt Defendants' definition in toto would be redundant, as certain claims, such as claims 30 and 61 of the '065 patent, and claims 7, 11, 23, and 29 of the '111 patent, already discuss bringing aniline or substituted aniline derivatives and nitrobenzene into reactive conduct in the same sentence in which the term "suitable solvent system" appears. Therefore, the Court finds that the proper construction of "suitable solvent system" or "solvent system" is "a solvent or mixture of solvents."
VIII. Motion to Appoint a Technical Advisor
Plaintiff has also filed a motion to appoint a technical advisor. (Doc. No. 208.) Defendants oppose the motion (Doc. No. 218), and Plaintiff has replied (Doc. No. 222). The Court deferred ruling on the motion until after the Markman hearing and is now prepared to rule.
Flexsys maintains that a technical adviser versed in chemistry could assist the Court, especially at the claim construction stage. In support of its position, Flexsys notes that claim construction has been hotly contested both in the first action before the ITC and in the present litigation.
Defendants oppose the motion, stating that an advisor would be unnecessary because the tutorial [was] adequate to educate the Court on the claim construction issues. Defendants also stress that Plaintiff's motion comes too late, and that it would take so long to appoint an appropriate neutral advisor that the dates and deadlines in the Court's CMPTO might be jeopardized.
Because it is the "gatekeeper" of the trial in determining what scientific evidence is admissible, "the district court must have the authority to appoint a technical advisor in such instances so that the court can better understand scientific and technical evidence in order to properly discharge its gatekeeper role of determining the admissibility of such evidence." Tech-Search LLC v. Intel Corp., 286 F.3d 1360, 1377 (Fed.Cir.2002). District courts must, however, exercise this authority "sparingly and then only in exceptionally technically complicated cases." Id. at 1378 (citing Ass'n of Mexican-Am. Educators v. Cal., 231 F.3d 572, 590 (9th Cir.2000)). The decision of whether to appoint a technical advisor rests within the sound discretion of *627 the district court. See TechSearch LLC, 286 F.3d at 1379.
The Court finds that this is not the "exceptionally technically complicated" case that warrants the appointment of a technical advisor. The thorough and professional tutorial that the parties presented prior to the Markman hearing more than adequately educated the Court on the chemistry that is at the core this litigation. Moreover, the parties' exceptional briefing has further contributed to the Court's understanding of how the chemistry relates to the issues present in this matter. As such, the Court DENIES Plaintiff's motion to appoint a technical advisor. For the same reasons, the Court also DENIES Plaintiff's alternative motion to appoint an independent expert witness under Rule 706 of the Federal Rules of Evidence. See Tangwall v. Robb, 2003 WL 23142190, at *3, 2003 U.S. Dist. LEXIS 27128, at *8 (E.D.Mich. Dec. 23, 2003) ("The determination to appoint an expert under [Rule 706] rests solely in the Court's discretion and is to be aided by such factors as the complexity of the matters to be determined and the fact-finder's need for a neutral, expert view.")
IT IS SO ORDERED.
NOTES
[1] Flexsys also named Sovereign Chemical Company as a defendant in this action. While Sovereighn remains a party to this litigation, it did not participate in the claim construction proceedings.
[2] Prior to the Markman hearing, the parties conducted a tutorial on October 29, 2009 for the benefit of the Court, wherein the chemistry behind the patents-in-suit was explained.
[3] The '063 patent issued on May 26, 1992, the '541 patent issued on September 26, 1995, and the '111 patent issued on March 4, 1997. Copies of the patents are contained in the parties' joint appendix. (See Doc. No. 213, Tab A, '063 patent; Tab B, '541 patent; Tab C, '111 patent).
[4] Another patent, United States Patent No. 6,140,538, was alleged in the complaint but was dismissed with the '541 patent.
[5] Defendants offer a separate definition for the second half of the phrase: "the ratio of the amount of 4-NODPA and 4-NDPA to the amount of phenazine and azobenzene obtained from the reaction of aniline and nitrobenzene." (Id. at 3.)
[6] Given the fact that aniline and DMSO were the only two solvents of six mentioned for which a numerical limit was provided, the court found that the "will vary" language in the specification clearly referred to the other four solvents for which a specific amount was not provided. Id. at 1138.
[7] Flexsys suggests that the Circuit erred in finding that it had agreed with Defendants that there was no well-accepted meaning for the term "controlled amount" shared by chemists, suggesting that "[a]t most, Flexsys failed to object to Respondents' proposed finding of fact pertaining to a different term `controlled amount of protic material.'" (Doc. No. 255 at 19.) The Court finds this specious distinction to be without any meaningful difference. The only "controlled amount" that is relevant to the patents-in-issue is the "controlled amount of protic material." Moreover, Flexsys's expert, Dr. Crich, testified that one would have to "read the entire patent" in order to glean the meaning of the term "controlled amount." (Doc. No. 256, Ex. 19 at 3.) It is clear that Flexsys did not advocate for a finding of a well-accepted meaning before the Federal Circuit.
[8] At the Markman Hearing, Defendants objected to the fact that Dr. Maleczka did not appear to be limiting his opinion to the 3 articles that he appended to his declaration, but had broadened his opinion to include these other 16 articles that he discovered in the course of his search. The Court has reviewed Dr. Maleczka's declaration (Doc. No. 228), and has concluded that the declaration was not based solely on the appended articles. As such, Dr. Maleczka was entitled to testify as to all of the articles that formed the basis of his opinion.
[9] It appears from the text of the Verizon decision that the "e.g." did not appear in the original text, but was added later by the court.
[10] It is worth noting that the drafter did offer two examples in the specification. Immediately after observing that "[t]he upper limit for the amount of protic material present in the reaction varies with the solvent," the drafter states "For example, when DMSO is utilized as the solvent and tetramethylammonium hydroxide is utilized as the base, the upper limit on the amount of protic material present in the reaction is about 8% H2O based on the volume of the mixture." ('063 patent, col. 4, ll. 54-58.) Here, the drafter is showing an example of how the amount of protic water varies with the choice of solvent. Of course, consistent with the Federal Circuit's definition, the next example offered shows that when aniline is the solvent the amount of protic material is 4%. ('063 patent, col. 4, ll. 58-60.)
[11] Plaintiff also questions the Federal Circuit's determination that the "will vary" language in the specification "appears to refer to the four other solvents for which a specific percentage was not provided." Sinorgchem, 511 F.3d at 1138. Plaintiff argues that the Circuit's "novel interpretation" is inconsistent with a chemist's understanding that a change in one reaction condition can affect the optimal values and tolerances for other reactions and, therefore, the language must apply to all solvents, including aniline. (Doc. No. 227 at 24-25.) The Court cannot accept Plaintiff's interpretation. The language immediately preceding the "will vary" language states unequivocally that when DMSO is the solvent, the amount of protic material is "about 8%." Earlier in the same paragraph, 4% is identified as the amount of protic material when aniline is the solvent. Clearly, the "will vary" language refers to those solvents for which the patentee has not specifically assigned a numeric amount.
[12] Example 9 uses between 4.3% and 9.6% water, Example 10 uses 9.8%, Example 13 uses 10.8%, (TR at 95), and Examples 15 and 17 use 13.8% (TR at 10, 97.)
[13] Example 9 also addresses the amount of protic material to use in the reaction, but its focus is on the "effect that increasing the amount of base has on yields of 4-NDPA and p-NDPA [. . .]." ('063 patent, col. 11, ll. 36-39; TR at 139.)
[14] Dr. Maleczka admitted that Example 3 is a "learning" example, as opposed to Examples 10, 13, 15, and 17, which he described as "preparative" examples. (TR at 78.) He further testified, however, that Example 3 does not teach that the amount of water must be limited to below 4%. (TR at 82.) Because this expert testimony contradicts the intrinsic evidence found in the patent, itself, it must be rejected See Markman, 52 F.3d 967, 981 (Fed. Cir.1995).
[15] Flexsys challenges the Federal Circuit's observation that, with respect to Example 15, "Flexsys has not explained how the presence of 13.8% water at the beginning of the reaction is necessarily inconsistent with a `controlled amount' of 4% during the operative part of the reaction." Sinorgchem, 511 F.3d at 1140, n. 6. While the experts agree that "the operative part of the reaction" is that point after all the necessary reactants are present (TR at 94, 98, 101, 253), the '111 patent provides that the reaction takes place over a period of 4 hours and 5 minutes ('111 patent, col. 16, ll. 5-9). Thus, it is possible to reconcile the Circuit's observation in Footnote 6 with the testimony of the experts, leaving this Court with no definitive evidence that would support a contrary ruling.
[16] In addition, Dr. Maleczka testified that the terms "controlled" and "controlling" were used in an interrelated way. (TR at 179.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386072/ | 885 S.W.2d 389 (1994)
STATE of Texas ex rel. John B. HOLMES, Jr., District Attorney, Relator,
v.
The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent.
TEXAS BOARD OF PARDONS AND PAROLES, et al., Relator,
v.
The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent.
Nos. 71764, 71765.
Court of Criminal Appeals of Texas, En Banc.
April 20, 1994.
Rehearing Denied June 8, 1994.
*390 John B. Holmes, Jr., Dist. Atty., and Calvin A. Hartmann and Roe Wilson, Asst. Dist. Attys., Houston, Charles Palmer, Asst. Atty. Gen., Austin, for relators.
James C. Harrington, Austin, for real party in interest Gary Graham.
Before the court en banc.
OPINION ON RELATORS' APPLICATION FOR WRIT OF MANDAMUS
BAIRD, Judge.
Relators, Harris County District Attorney John B. Holmes and the Texas Board of Pardons and Paroles by and through the Attorney General, seek a writ of mandamus and/or prohibition directing respondent, the Third Court of Appeals, to withdraw its order enjoining the execution of death row inmate Gary Graham. We will conditionally grant relief.
I.
A recitation of the procedural history of this case is in order. Graham was convicted of capital murder in the 182nd District Court of Harris County. Tex.Penal Code Ann. ง 19.03(a)(2). We affirmed. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). We denied Graham's first application for writ of habeas corpus, Ex parte Graham (Tex.Cr. App. No. 17,568-01, delivered February 19, 1988) (not published), and Graham unsuccessfully petitioned the federal courts for relief. Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc); and, Graham v. Collins, ___ U.S. ___, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993). Although we ultimately denied Graham's second writ application, we stayed his execution pending the resolution of Johnson v. Texas, ___ U.S. ___, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993). Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993); and, Ex parte Graham, 853 S.W.2d 565 (Tex. Cr.App.1993). Our stay expired by its own terms and the Supreme Court denied certiorari. Graham v. Texas, ___ U.S. ___, 113 S. Ct. 2431, 124 L. Ed. 2d 651 (1993).
*391 The Texas Board of Pardon and Paroles, hereafter the Board, denied Graham's first request for executive clemency and Governor Richards granted Graham a thirty day reprieve. Graham requested executive clemency a second time but the Board did not act on that request because of our aforementioned stay of Graham's execution. Graham, 853 S.W.2d at 567.
Upon expiration of our stay, the judge of the 182nd District Court ordered Graham's execution before sunrise on August 17, 1993. On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County seeking an order compelling the Board to hold a hearing on his request for clemency. Graham contended art. I, งง 13 and 19, and art. IV, ง 11 of the Texas Constitution required a hearing. The judge of the 299th District Court agreed and entered a temporary injunction requiring the Board to hold a hearing on or before August 10, 1993, or to reschedule Graham's execution until such a hearing could be held.[1]
On August 10, 1993, the Board filed notice of appeal to respondent, Third Court of Appeals. On Graham's motion, respondent entered a writ of injunction enjoining relators from proceeding with the execution. Writ of Injunction, pg. 2. Respondent held the injunction was necessary to preserve its jurisdiction over the appeal.[2]
The Board filed a motion for leave to file original applications for writ of prohibition and mandamus in this Court requesting that we vacate the injunction, prohibit respondent from taking further action and address Graham's claims.[3] Relator Holmes filed a motion for leave to file petition for writ of mandamus and request for emergency stay requesting that we vacate respondent's injunction.[4] On August 16, 1993, we denied leave to file but, on our own motion, stayed Graham's execution. State ex rel. Holmes v. Third Court of App., 860 S.W.2d 873 (Tex.Cr. App.1993).
On November 9, 1993, we re-considered each motion, granted leave to file and consolidated *392 the motions. The contentions before us are:
1. Whether respondent's order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court's original jurisdictional authority over Graham's case;
2. Whether respondent's order violates the original jurisdiction of this Court under art. V, ง 5 of the Texas Constitution;
3. Whether respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham's execution;
4. Whether Graham has failed to present his complaint to the trial court by means of exclusive post conviction habeas corpus remedy set forth within Tex.Code Crim.Proc.Ann. art. 11.07; and,
5. Whether this Court should assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.
We will address contentions one, two, and, three in part II of this opinion; contention four in parts III, IV, and V; and, contention five in part VI.
II.
A. Mandamus
Our power to issue writs of mandamus is derived from art. V, ง 5 of the Texas Constitution and Tex.Code Crim.Proc.Ann. art. 4.04.[5] Mandamus is an extraordinary remedy to be invoked sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Cr.App.1992). To be entitled to a writ of mandamus, the relator must demonstrate: 1) the act sought to be compelled is purely ministerial (as opposed to discretionary); and, 2) the relator has no other adequate remedy. Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991). See, State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr. App.1990); Collins v. Kegans, 802 S.W.2d 702 (Tex.Cr.App.1991); and, Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989).[6]
B. Criminal Law Matter
Our mandamus power is limited to "criminal law matters." Tex. Const. art. V, ง 5. See, n. 5, supra. See also, Dickens v. *393 Court of Appeals, 727 S.W.2d 542, 545 (Tex. Cr.App.1987). Therefore, the threshold issue is whether respondent's injunction is a criminal law matter.
While no rule precisely defines the limits of a criminal law matter, we enunciated a general rule in Curry v. Wilson, 853 S.W.2d 40 (Tex.Cr.App.1993). Curry was acquitted in his criminal trial. After the trial, Wilson, the trial judge, believing Curry was no longer indigent, sought to recoup the legal fees incurred by Tarrant County for Curry's representation. See, Tex.Code Crim.Proc.Ann. art. 26.05(e). Curry sought a writ of prohibition to prevent the recoupment. Wilson challenged our jurisdiction to hear the case, contending it was not a criminal law matter. Id., at 43. We explained that criminal law matters are those:
... Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution....[7]
Id. We noted respondent's authority to order recoupment arose from the Code of Criminal Procedure. Id. We further observed that the legal services were incurred in the course of Curry's criminal trial. Id. We concluded the "dispute [was] a criminal law matter and this Court [had] jurisdiction to hear the case and determine whether a writ of prohibition should issue." Id.
Similarly, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App. 1993), we considered whether a former judge may preside at a criminal trial over the State's objection. Lanford, who had resigned as a district judge, was assigned to sit as a visiting "former judge." Tex.Gov't Code Ann. ง 74.054. Lanford, 847 S.W.2d at 583. The State's objection to Lanford's assignment was overruled. Id. The State then sought and received a writ of mandamus from the Fourteenth Court of Appeals ordering Lanford to not preside in a criminal case over the State's objection. Id. Lanford sought a writ of mandamus from this Court ordering the Court of Appeals to rescind its writ of mandamus. Id., at 584. The State contended we lacked jurisdiction to decide the matter because "[t]he orderly assignment of judges [was] a concern which [was] peculiarly within the province of the Texas Supreme Court," i.e., a civil law matter. Id.
In addressing the jurisdiction issue, we noted that the primary goal in interpreting constitutional provisions was to "ascertain and give effect to the apparent intent of the voters who adopted it." Lanford, 847 S.W.2d at 585 (citing Edgewood I.S.D. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989); and, Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 265 (1922)). We concluded:
... [the] average voters reading the phrase "criminal law matters" at the time of [art. V, ง 5's] adoption would probably have interpreted it to encompass, at a minimum, all legal issues arising directly out of a criminal prosecution. Thus, we conclude without difficulty that the constitutional phrase "criminal law matters" does encompass, and this Court does have jurisdiction over, the issue presented in Lanford's application.
Lanford, 847 S.W.2d at 585.
Further, in Smith v. Flack, 728 S.W.2d 784 (Tex.Cr.App.1987), we considered whether the payment of attorney's fees was a criminal law matter. See, Tex.Code Crim.Proc.Ann. art. 26.05. The relators, four court-appointed criminal defense attorneys, sought a writ of mandamus to compel the Harris County Auditor and Commissioner's Court to pay attorneys' fees awarded by a trial judge. Id., at 787-788. To determine whether we had jurisdiction to issue the writ, we observed: "[W]hen read as a whole, Article V, ง 5 ... grants this Court the power to issue writs of mandamus when a criminal law is the subject of the litigation." Id., at 788. Concluding the litigation was grounded upon art. 26.05, we held the writ application directly involved a criminal law matter. Id., 788-789. See also, Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Cr.App.1987) (denial of motion for legislative continuance during criminal trial was a criminal law matter within Court's mandamus jurisdiction); Dickens, 727 S.W.2d 542 (criminal discovery law was a criminal law matter within Court's mandamus jurisdiction); *394 and, Weiner v. Dial, 653 S.W.2d 786, 787 (Tex.Cr.App.1983) (appointment and compensation of attorneys to represent criminal clients pursuant to art. 26.05 is a criminal law matter).
Moreover, a matter does not cease to be a criminal law matter simply because it may be necessary to address elements of civil law in resolving the matter. See, Commissioners' Court v. Beall, 98 Tex. 104, 81 S.W. 526, 528 (1904). Compare, Ex parte Mode, 77 Tex. Crim. 432, 180 S.W. 708 (1915) (statute providing for local elections for pool hall regulation held constitutional). Although civil and criminal law matters may occasionally overlap, when a matter is essentially criminal, the presence of civil law issues will not remove the matter from our jurisdiction. Smith v. Flack, 728 S.W.2d at 788-789. In Smith, we explained that our jurisdiction to determine incidental issues of civil law was necessary to the exercise of our mandamus power:
... Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a criminal law matter as much as the issuance of the order itself, even if it requires this Court to examine civil laws in the process. Were it otherwise, this Court's power to decide criminal law matters would be seriously eroded or eliminated altogether by the incidental presence of civil law matters.
Id.
Clearly, the entry of an order which stays the execution of a death row inmate is a criminal law matter. Art. V, ง 5 specifically confers exclusive appellate jurisdiction of all cases in which the death penalty has been assessed in the Court of Criminal Appeals. A sentence of death may only be based upon a conviction for capital murder. Tex.Penal Code Ann. ง 19.03. Further, the legislature has provided specific procedures relating to a capital trial and the execution of the death sentence. See e.g., Tex.Code Crim.Proc.Ann. arts. 34.01, 35.13, 35.15, 37.071, 42.04, 43.14, 43.15, 43.16, 43.17, 43.18, 43.19, 43.20, 43.21, 43.22, 43.24, and, 43.25. Because the respondent's injunction "arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure," and "arise[s] as a result of or incident to a criminal prosecution," we hold this issue is a criminal law matter properly before this Court. See, Curry, supra; and, art. V, ง 5.
C. Adequate Remedy
Graham contends relators have an adequate remedy through the normal appeals process. Relators contend this remedy is inadequate because the injunction was not a final judgment and, therefore, may not be immediately appealed. Further, relators contend the ultimate appeal of Graham's case would be to the Supreme Court, Tex. R.App.P. 130, which would make resolution of the issue impossible because the Supreme Court would lack jurisdiction to decide the issue if we determine the injunction to be a criminal law matter, see, part II(B), supra; and, State v. Morales, 869 S.W.2d 941 (1994).
In Smith, we held: "In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate." Id., 728 S.W.2d at 792. As we stated in Stearnes, "[t]he remedy of appeal is simply inappropriate to the situation present[ed] here." Id., 780 S.W.2d at 225. Relators' contentions address respondent's jurisdiction to enter its writ of injunction. Resolution of this issue through the normal appeals process would necessarily require relators to wait until final judgment is entered, and the appeals process would likely be through the civil courts. As previously noted, this Court has the ultimate jurisdiction over criminal law matters. See, Part II(B), supra. Consequently, we hold that, under the facts of this case, the normal appellate process would not provide relators an adequate remedy.
D. Discretionary or Ministerial
Relators contend respondent had no jurisdiction to enjoin Graham's execution. Graham contends:
[w]hile the trial court and [the Court of Criminal Appeals] certainly have the authority to stay Mr. Graham's execution, nothing in the statutes cited by Relators grants "exclusive" authority to either *395 court. Neither can they reasonably be read to limit the inherent authority of a Court of Appeals to enjoin parties before it from carrying out an execution when such action is necessary to the lawful exercise of jurisdiction over an appeal brought by state officials....
Response of Real Party in Interest to the State's Motion For Leave To File Petition For Writ of Mandamus and/or Writ of Prohibition, pp. 13-14.[8]
At the time the indictment against Graham was filed in the 182nd District Court, "that court obtained sole jurisdiction over the case to exclusion of all other courts." State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 480 (Tex. Cr.App.1985). Graham was convicted of capital murder and was sentenced to death. Appeal to this Court was automatic, Tex.Code Crim.Proc.Ann. art. 37.071(h), and we affirmed. Graham, 671 S.W.2d at 529. On December 10, 1984, our mandate issued. Pursuant to our mandate, the judge of the 182nd District Court ordered Graham's execution. The effect of respondent's injunction was to circumvent our decision and disobey our mandate.[9]
In State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892 (1961), Judge Cullen Briggs, judge of the 117th District Court in Nueces County, stayed the execution of Howard Stickney, an inmate convicted in Harris County of capital murder and sentenced to death. Briggs held a hearing on Stickney's application for writ of habeas corpus and stayed the execution. We set aside the stay and denied the application. Id., 351 S.W.2d at 893. The trial judge again set Stickney's execution. However, the execution was stayed by yet another district judge. Id. The trial judge scheduled a third execution. However, eight minutes before the execution, Briggs stayed the execution and scheduled a hearing in Nueces County. Relators sought a writ of prohibition directing "Judge Briggs to take no further action or hold any further hearings on this application for habeas corpus." Id., 351 S.W.2d at 893-894. We held:
Judge Briggs has no greater authority or responsibility in death penalty cases tried in counties not in his judicial district than any of the other more than 150 district judges of this state. If it be the law in Texas that every district judge must be satisfied before a death sentence may be carried out, and any district judge may prevent the execution of such a sentence upon grounds which this Court has rejected, then this Court is not a court of last resort in criminal matters in this state.
Briggs, 351 S.W.2d at 896.[10]
We find Briggs controlling. Any order by another state court which purports to *396 stay a scheduled execution circumvents our decision and disobeys our mandate. Briggs, 351 S.W.2d at 894. Notwithstanding that respondent held the injunction was necessary to protect its jurisdiction over the appeal of the Graham's civil case, Tex.R.App.P. 43, respondent may not interfere with our exclusive jurisdiction or disobey our mandate. We hold that respondent had no jurisdiction to enjoin the scheduled execution.
In State ex rel. Millsap v. Lozano, we considered whether an order entered when the trial court had no jurisdiction over the cause was subject to mandamus. "Being without jurisdiction, the order entered after hearing is void and a writ of mandamus may issue to compel vacation of the order or orders...." Id., 692 S.W.2d at 482. See, State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App.1990); and, Stearnes, supra. Consequently, we hold that respondent's injunction must be vacated because respondent had no jurisdiction to enter an order enjoining Graham's execution.[11]
Therefore we sustain relators' contentions one, two and three and hold that relators are entitled to a writ of mandamus to compel the vacation of respondent's injunction.
III.
The State contends Graham's only remedy is through post-conviction habeas corpus. See, Tex.Code Crim.Proc.Ann. art. 11.07. In response, Graham contends post-conviction habeas corpus does not lie in this case:
[h]abeas corpus is available only to review jurisdictional defects, or if the error is of constitutional dimension. Traditionally, however, the denial of fundamental or constitutional rights must have occurred during the underlying state criminal proceedings. Graham's Brief at pg. 37. Graham further contends that claims of newly discovered evidence are not cognizable through habeas corpus, and, therefore, his only remedy is through the executive clemency process. In support of this contention Graham relies on Ex parte Binder, 660 S.W.2d 103 (Tex.Cr. App.1983).
A. Tex.Code Crim.Proc.Ann. art. 11.07
Tex.Code Crim.Proc.Ann. art. 11.01 defines writ of habeas corpus:
The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.
Art. 11.07 ง 2 provides the procedures for consideration of an application for writ of habeas corpus when the applicant is restrained by felony conviction. The writ is filed in the court where the conviction was obtained. Art. 11.07 ง 2(b). If "controverted, previously unresolved facts ... material to the legality of the applicant's confinement" exist, the trial judge must resolve the issues of fact and may order "affidavits, deposition, interrogatories, and hearings" to assist in his determination. After the trial judge makes "findings of fact," the cause is transferred to this Court. Art. 11.07 ง 2(d). We may deny relief "upon the findings and conclusions of the hearing judge," or docket the case "as though originally presented." Art. 11.07 ง 3.
B. Post-Conviction Habeas Corpus and Newly Discovered Evidence
In Ex parte Binder, 660 S.W.2d 103 (Tex. Cr.App.1983), Binder contended he was entitled to habeas relief based on newly discovered *397 evidence. Id., 660 S.W.2d at 104-105. We denied relief concluding that "post-conviction habeas corpus has not been and is not now the appropriate remedy for an applicant whose claim for relief is based on newly discovered evidence." Id., 660 S.W.2d at 106. However, we noted that Binder's contentions were "based on nothing more than newly discovered evidence." Binder made no claim of a violation of a "state or federal constitutional or statutory right." Id.
In Ex parte Bravo, 702 S.W.2d 189 (Tex. Cr.App.1982), Bravo contended he was entitled to habeas relief because the trial judge had improperly excused a veniremember under Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980). Bravo, 702 S.W.2d at 190-191. Finding the error to be of constitutional dimension, we granted relief. Id. In its motion for rehearing the State contended Bravo could not raise such a claim in his application for writ of habeas corpus because it was not raised on direct appeal. Id., 702 S.W.2d at 192. We overruled the State's motion noting: "It is well established that habeas corpus will lie ... to review jurisdictional defect or denials of fundamental or constitutional rights." Id., 702 S.W.2d at 193. See also, Ex parte Watson, 601 S.W.2d 350, 352 (Tex.Cr.App.1980) ("[H]abeas corpus will lie only to review jurisdictional defects or denials of fundamental or constitutional rights.").
There is no question that Graham's liberty has been restrained by virtue of his death sentence. Thus to determine whether Graham may pursue a post-conviction application of habeas corpus we must view Graham's claims in light of Binder, supra, and Bravo, supra. Consequently, if Graham alleges the denial of a fundamental or constitutional right habeas corpus is the appropriate vehicle for this Court to address Graham's claims. Id.
IV. Fundamental or Constitutional Right
Graham contends that newly discovered evidence demonstrates his innocence of the crime for which he was condemned. The Supreme Court considered a similar issue in Herrera v. Collins, ___ U.S. ___, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), under the Due Process Clause of the Fourteenth Amendment.[12] Herrera was convicted of capital murder and sentenced to death in 1982. Ten years later, Herrera filed a federal habeas petition wherein he asserted newly discovered evidence that his brother committed the murder. Herrera contended he was entitled to federal habeas relief under the Due Process Clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment found in the Eighth Amendment. Herrera, ___ U.S. at ___-___, 113 S.Ct. at 856-859. Chief Justice Rehnquist, writing for the majority, stated: "We may assume for the sake of argument in deciding this case ... a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Herrera, ___ U.S. at ___, 113 S.Ct. at 869. From our reading of Herrera, we understand six members of the Supreme Court to have recognized the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Graham, 853 S.W.2d at 567, n. 1 (Maloney, J., concurring and dissenting). (citing Herrera, ___ U.S. at ___, 113 S.Ct. at 853; Id., ___ U.S. at ___, 113 S.Ct. at 869 (O'Connor and Kennedy, JJ., concurring; Id., ___ U.S. at ___, 113 S.Ct. at 875 (White, J., concurring); and, Id., ___ U.S. at ___, 113 S.Ct. at 876 (Blackmun, Stevens, and Souter, JJ., dissenting)). With this sound and fundamental principle of jurisprudence we cannot disagree; such an execution would surely constitute a violation of a constitutional or fundamental right.
With the foregoing in mind, we read Graham's contentions as claiming his execution *398 would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, we hold that habeas corpus is an appropriate vehicle for Graham to assert his claim. To the extent that it conflicts with this holding, Binder is expressly overruled.
V.
A. Threshold Standard
In Herrera, the Court recognized the need for an "extraordinarily high" threshold showing of innocence before habeas proceedings would be appropriate. Herrera, ___ U.S. at ___, 113 S.Ct. at 869. The State agrees that before conducting proceedings on a claim of factual innocence based on newly discovered evidence a threshold should be required. The State contends that consideration of newly discovered evidence without the establishment of a threshold "would unfairly denigrate the constitutionally mandated right to trial by jury and would diminish, rather than enhance, the truth-seeking function of the criminal justice process." We agree.
Judge Maloney suggested such a threshold standard in Ex parte Graham, 853 S.W.2d 565, 567 (Tex.Cr.App.1993) (Maloney, J., concurring and dissenting, Baird and Overstreet, JJ., join).
As to capital cases where newly discovered evidence is presented in support of a claim of actual innocence, this Court should establish a threshold standard.... In my opinion, the threshold question should be whether the newly discovered evidence, if true, would create a doubt as to the efficacy of the verdict to the extent that it undermines our confidence in the verdict and that it is probable that the verdict would be different....
We believe the adoption of this threshold standard will serve to eliminate the frivolous claims of factual innocence based on newly discovered evidence and provide for the efficient administration of such potentially meritorious claims. Consequently, we hold an applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different. Once that threshold has been met the habeas court must afford the applicant a forum and opportunity to present his evidence. We now must determine the burden of proof the applicant must bear at that hearing in order to obtain habeas relief.
B. The Burden of Proof
Both Chief Justice Rhenquist speaking for the majority and Justice Blackmun, in dissent, stated "a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional." Id., ___ U.S. at ___ and, ___, 113 S.Ct. at 856 and, 882. Although Chief Justice Rhenquist did not define precisely the burden associated with "a truly persuasive demonstration of actual innocence," we believe such a burden should be very high. The reasons for establishing such a high burden were articulated by Justice Blackmun in explaining why an otherwise constitutionally valid conviction should not be set aside lightly.
... [C]onviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant's guilt beyond a reasonable doubt, [citations omitted], but once the government has done so, the burden of proving innocence must shift to the convicted defendant... When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.
Herrera, ___ U.S. at ___, 113 S.Ct. at 882-883 (Blackmun, J., dissenting).
In his concurrence, Justice White articulated the burden we feel is appropriate in these cases:
In voting to affirm, I assume that a persuasive showing of "actual innocence" made after trial, even though made after the expiration of the time provided by law *399 for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, "no rational trier of fact could find proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307 324, 99 S. Ct. 2781, 2792, 61 L. Ed. 2d 560 (1979)....
Herrera, ___ U.S. at ___, 113 S.Ct. at 875 (White, J., concurring).
Therefore, we hold that in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.
This threshold standard and burden of proof will satisfy the Due Process Clause of the Fourteenth Amendment and we adopt them in the habeas context. If the applicant meets the threshold standard announced above the habeas judge must hold a hearing to determine whether the newly discovered evidence, when considered in light of the entire record before the jury that convicted him, shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt.
Therefore, we sustain the fourth contention and hold that, pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, Graham may appropriately couch his claims of factual innocence in the context of a violation of the Due Process Clause of the Fourteenth Amendment.[13]
VI.
Finally, relators request that we assume original habeas corpus jurisdiction and resolve Graham's claims. However, in light of our resolution of relator's fourth contention, Graham is free to pursue his claims through the filing of an application under Tex.Code Crim.Proc.Ann. art. 11.07. But, there is no application presently pending before this Court, nor has the trial judge been given the opportunity to prepare findings of fact consistent with art. 11.07 ง 3. Consequently, relators' fifth contention is dismissed.
Conclusion
We withhold issuance of the writ of mandamus and accord respondent the opportunity to conform its actions with part II of this opinion. Should such action not be taken, the writ of mandamus will issue. Our stay of execution granted August 16, 1993, is vacated.
MILLER, J., dissents. Judge CAMPBELL, in his concurring opinion's discussion of "The Clemency Process," appears to mirror my earlier comments in my Dissent to the Order Filing and Setting Relator's Mandamus Actions, footnote 2. To that extent I agree with his "observations." Nevertheless, Judge MEYERS has the proper view of the correct disposition of this matter, and thus I join his opinion.
OVERSTREET, J., dissents to Part II for the reasons stated in his dissenting opinion but joins Parts III, IV, V, and VI of this opinion.
CAMPBELL, Judge, concurring.
I agree that the Court should grant mandamus relief, see State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873, 879 (Campbell, J., dissenting), and I join the opinion of the Court. I write separately, however, to elaborate upon the necessity to overrule, to the extent in conflict, our holding in Ex parte Binder, 660 S.W.2d 103 (Tex. Crim.App.1983).
In Binder we held that "post-conviction habeas corpus ... is not ... the appropriate remedy for an applicant whose claim is based on newly discovered evidence." Id., at 106. *400 Two concerns, one constitutional and one prudential, now persuade me that we must modify our holding in Binder to the extent that the post-conviction habeas corpus process should be available to those few applicants who can meet the threshold standard set by a majority of the Court today.
Due Process
Gary Graham does not come before this Court as an innocent man, but rather as one who has been convicted in accordance with due process of law of capital murder. Graham v. State, 671 S.W.2d 529 (Tex.Crim.App. 1984). The question before us, then, is not the legal guilt of Graham, but rather whether due process entitles a legally convicted individual to post-conviction judicial review of an "actual innocence" claim.
The due process clause of the Fourteenth Amendment prohibits criminal process that "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, 432 U.S. 197, 202, 97 S. Ct. 2319, 2322, 53 L. Ed. 2d 281 (1977). Certainly, the execution of an innocent person would offend the most basic of principles, deeply rooted in our civilization, that the innocent must not be punished. Six members of the Supreme Court, in various combinations and opinions, so stated in Herrera v. Collins, ___ U.S. ___, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). Because our present state criminal process presents a substantial risk that that basic principle will be violated, I believe that the process is constitutionally deficient. Given the interests at stake and the relatively slight cost to the government of litigating those few claims that will meet the minimum threshold set by the Court today, due process of law requires that a judicial forum be available for the assertion of such claims.
The Clemency Process
In Herrera v. Collins, ___ U.S., at ___-___, 113 S.Ct., at 868-869 (1993) (some citations omitted), the Court noted the following:
Executive clemency has provided the "fail safe" in our criminal justice system.... Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of "actual innocence" have been made....
In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const. art, IV, ง 11; [Tex. Code Crim.Proc.] Art. 48.01. (Vernon 1979). The board's consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for a full pardon, a commutation of death sentence to life imprisonment or appropriate maximum penalty, or a reprieve of execution. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days.
The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will entertain applications for a recommendation of full pardon because of innocence upon receipt of the following: "(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based." Tex.Admin.Code ง 143.2....
What the Supreme Court in Herrera did not realize, though, was that the policy of this Court, as expressed in Binder, rendered subsection (2) of ง 143.2 unworkable and useless, for under Binder there is simply no way for a convicted individual to get into "a court having jurisdiction" to get his claim heard under subsection (2). And it is fairly obvious that subsection (1) is unlikely ever to be utilized successfully. Thus, under Binder there is a serious flaw in the Texas clemency process for claims of actual innocence.
Under the Court's holding today, in contrast, subsection (2) will be rendered meaningful. A convicted individual can file an application for writ of habeas corpus under Article 11.07 and then, if he wishes, use the findings of that court to file an application for *401 a recommendation of full pardon under ง 143.2(2).
With these comments, I join the opinion and judgment of the Court.
WHITE, Judge, concurring in part and dissenting in part.
I.
I agree with the majority that we should sustain relators' first, second, and third contentions, and find relators are entitled to a writ of mandamus to compel the vacation of respondent's injunction. I believe respondent does not have the jurisdiction to enjoin the execution of Gary Graham, which would be an unlawful interference with the mandate of this Court. To decide otherwise, would be the dangerous precedent of permitting lower courts to interfere with the mandates of this Court whenever they perceive it to be necessary in a civil lawsuit. I therefore join Parts I and II of the majority opinion.
This does not mean that I believe the District Court lacked jurisdiction to hear Gary Graham's claim: that the Board of Pardons and Paroles violated his right to due course of law by denying his request for executive clemency without permitting him a hearing to present his request. I believe this question into the constitutional viability of the procedures followed by the Board is a matter of civil law. Our State's executive clemency provisions do not constitute another step in the appellate review of a criminal conviction. These provisions do not provide a venue to contest the validity or integrity of a criminal conviction. They involve the issuance of orders pursuant to civil statutes, not criminal statutes. Compare with Curry v. Wilson, 853 S.W.2d 40, at 43 (Tex.Cr.App. 1993). I believe that is a matter to be resolved in courts with jurisdiction over matters of civil law.
However, I think they are an important safeguard and remedy against the wrongful punishment of an individual who is actually innocent.
II.
Because I also believe that the State's executive clemency procedures are the only state remedy available to an inmate who advances a claim of actual innocence after his conviction is final, I disagree with the majority's holding that Graham is entitled to pursue his claim of actual innocence through this state's habeas procedures. As the Supreme Court explained in Herrera v. Collins, ___ U.S. ___, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), clemency is the traditional state remedy for these claims.
In Herrera, the Court found the proper avenue for a claim of newly discovered evidence of innocence was executive clemency procedures, as it "is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera v. Collins, ___ U.S. at ___, 113 S.Ct. at 866. The Court determined that the procedures set up by the Texas Legislature for executive clemency in this State were a sufficient remedy for the claim advanced by Herrera. "History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Herrera v. Collins, ___ U.S. at ___, 113 S.Ct. at 869.
In its opinion, the Court points out that "a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional." Herrera v. Collins, ___ U.S. at ___, 113 S.Ct. at 869. If there "were no state avenue open to process such a claim," federal habeas relief would be warranted. Id. Yet, even though they held that Texas' executive clemency procedures were an adequate remedy to process a claim of actual innocence, the Court reviewed the merits of Herrera's claim by assuming, arguendo, that Herrera had advanced such a constitutional claim. Herrera, ___ U.S. at ___, 113 S.Ct. at 870.
After assuming for the sake of the argument that Herrera had advanced a bona fide claim under the Fourteenth Amendment, the Court reviewed the evidence which Herrera brought forward and concluded that his showing of innocence fell "far short of that which would trigger the sort of constitutional *402 claim which we have assumed, arguendo, to exist." Herrera, ___ U.S., at ___-___, 113 S.Ct., at 869-870. The Court relied on the protections of the Due Process Clause in reaching this decision.
Today, the majority acts to create another, and, in my view, unnecessary and dangerous, remedy for claims like Herrera and Graham's within our state. It creates this remedy in our state habeas system. In order to do this, the majority assumes that Graham's claim is the same as Herrera's claim: that his execution would violate the Due Process Clause of the Fourteenth Amendment.[1] The majority then holds that state habeas corpus "is an appropriate vehicle for Graham to assert his claim." I do not believe that we should add a layer of protection for Fourteenth Amendment claims between this state's executive clemency procedures and the federal habeas system.[2]
To reach their conclusion, the majority views Graham's claim to be a demonstration of "his innocence of the crime for which he was condemned." Instead, I would hold Graham's claim of "innocence" to be nothing more than window dressing over a claim that is actually a claim of "newly discovered evidence." Graham has assembled what he believes to be new evidence in support of his alibi and in support of his claim that another individual committed the capital murder for which he was convicted. Actual innocence is merely the conclusion which he hopes a tribunal will reach upon review of his "newly discovered evidence."
Graham readily admits that a claim of newly discovered evidence, as this Court ruled in Ex Parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983), is not a fit subject for the exercise of state habeas corpus powers. Binder, at 106. I believe these claims do not involve challenges to the legality of the proceedings in which the claimants were convicted, or challenges to the constitutionality of those proceedings which produced those convictions. Binder, at 106. I would hold they are not properly advanced in state habeas proceedings.
I draw more support for my argument that Graham's claim is not suitable for state habeas from this Court's previous discussions of the nature of a claim of "newly discovered evidence." In Drew v. State, 743 S.W.2d 207 (Tex.Cr.App.1987), this Court decided that a claim of newly discovered evidence will prevail only if, "The materiality of the evidence is such as would probably bring about a different result in another trial." Drew v. State, at 226; and cases cited therein. Essentially, a reviewing court is asking whether or not the newly discovered evidence would contribute enough to a jury's deliberations that they would reach a different verdict.
I do not mean to imply that deciding the materiality of newly discovered evidence is the same thing as harmless error analysis. I do believe the two processes are substantively similar, since the objective is to decide whether a result of a trial would have been different if the newly discovered evidence would have been admitted there, or if the error's contribution to the verdict at trial had not occurred. We have held that state constitutional error that is subject to harmless error analysis is not cognizable on a writ of habeas corpus, because it would, at best, render a conviction voidable. Ex Parte Dutchover, 779 S.W.2d 76, at 77 (Tex.Cr.App. 1989). Even if Graham's claim is a federal constitutional claim, and if his newly discovered evidence is sufficiently material, it would still not render his conviction void. At best, that conviction would be voidable, dependent on the materiality of the newly discovered evidence.
I believe that, because a claim such as that of Graham does not challenge the legality of *403 the proceeding in which he was convicted or the constitutionality of the proceedings which resulted in his conviction, and because his challenge would not only render that conviction voidable, Graham's claim does not represent an issue that is cognizable on state habeas.
After the majority assumed that Graham's Fourteenth Amendment rights were violated in the instant cause (an assumption I cannot agree with), the majority holds that Ex Parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982) (on rehearing) controls. In my view, Bravo is substantively different from the instant cause. Bravo dealt with a case wherein veniremembers were improperly excluded, thereby violating the Sixth and Fourteenth Amendments of the United States Constitution. Bravo, at 192-193. This represented a claim of constitutional dimension addressing the proceedings (specifically, the selection of the jury) in which the claimant was convicted, and was properly raised in a writ of habeas corpus. Bravo, Id. As such, I believe Bravo is distinguishable from the instant cause.
I do not agree with the majority that our state habeas system is the proper vehicle to advance a Fourteenth Amendment claim of actual innocence. I do not agree that Graham's execution without first being granted a habeas corpus forum in this State's courts would be violative of the Fourteenth Amendment. The Federal habeas system, as decided by the Supreme Court, is sufficient to handle such claims if they are not first resolved in the State's executive clemency process. As Judge Clinton pointed out in his concurring opinion in Ex Parte Dutchover, 779 S.W.2d, at 78, this Court is certainly "not beholden to the federal courts" to review federal constitutional claims on collateral attack. In light of the Supreme Court's reliance on this state's executive clemency procedures as the proper avenue for an inmate's claims of actual innocence, I believe it is neither necessary, nor very wise, to open up the state habeas system for such claims. I would hold that Binder controls the instant cause.
Lastly, I believe the decision of the majority is potentially dangerous. It is possible that advocates before this Court will use the majority's decision today as a crowbar to open the door to a state forum in our trial courts for every inmate to relitigate his conviction years after he or she has already enjoyed every protection our criminal justice system extends to those individuals who were, at one time, presumptively innocent.
A decision to deny Graham a state habeas avenue for his claim of actual innocence would not cut him off from pursuing that claim. In a case such as his, where the State Board of Pardons and Paroles summarily denied his request for executive clemency, the state avenues which the Supreme Court spoke of in Herrera would have been exhausted. Under Herrera, and pursuant to the Fourteenth Amendment, Graham could have his forum for his claim that he is actually innocent under federal habeas relief prior to his execution, without the benefit of a state district court injunction of that mandate. If the Legislature finds the Board of Pardons and Paroles needs to have a different procedure for dealing with claims such as Graham's, they can create one.[3] None of this would require this Court to act by giving to Graham an opportunity to pursue his claim in state habeas.
Because I believe there should be no state habeas relief for a Fourteenth Amendment claim of actual innocence, I see no need to recommend a threshold standard for presentation of such a claim, or a burden of proof for resolving that claim.
I respectfully dissent to Parts III, IV, and V of the majority opinion.
For the reasons stated above, I join parts I and II of the majority opinion.
*404 OVERSTREET, Judge, concurring in part and dissenting in part.
In this mandamus action we must decide whether the Court of Appeals for the Third District, [hereinafter respondent] in Cause No. 3-93-421-CV, styled Texas Board of Pardons and Paroles, et. al. v. Gary Graham, exceeded its statutory authority by granting injunctive relief, that in effect stayed the execution of Gary Graham [hereinafter Graham]. At issue is the relationship between respondent's statutory right to preserve the subject matter on appeal pending review of a district court's decision and this Court's constitutional and statutory duty as the court of last resort in criminal prosecutions.
I.
On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County [hereinafter civil court] seeking an order compelling the Board of Pardons and Paroles [hereinafter Board] to hold a "due course of law" hearing on his request for clemency.[1] Specifically, the suit claimed that the procedure employed by the Board in its clemency determinations constitute a denial of due course of law in violation of art. I, งง 13 and 19,[2] and art. IV, ง 11[3] of the Texas Constitution. On August 9, 1993, the civil court entered a temporary injunction and in its order found that Graham was entitled to a "due course of law hearing on his post conviction claim of innocence."
On August 10, 1993, the Board filed notice of appeal to respondent. On August 12, 1993, this Court entered an order denying leave to file an original mandamus action challenging the civil court's order brought by the Harris County District Attorney [hereinafter district attorney] because the Board's notice of appeal suspended the civil court's order and none of the parties were "presently enjoined from taking any action" including the execution of Graham. On August 12, 1993, Graham filed an "Emergency Motion for Stay of Execution" with respondent. On August 13, 1993, respondent entered a writ of injunction prohibiting the named parties from proceeding with the execution of Graham pending resolution of the appeal.
Respondent determined it had authority to issue such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal. Tex.R.App. Pro. 43(c). Respondent found that the execution of Graham pending disposition of the appeal would affect the parties' rights pending the disposition of the appeal from the civil court's order of injunction and would destroy the subject matter of the lawsuit and to do so would interfere with respondent's jurisdiction over the appeal.
Relators, the Board and the district attorney, sought mandamus relief in this court to set aside the order by respondent.[4] We denied *405 leave to file the applications, State ex. rel. Holmes v. Third Court of Appeal, 860 S.W.2d 873 (Tex.Cr.App.1993), but on our own motion stayed Graham's execution. On November 9, 1993, this Court reconsidered the motions requesting mandamus relief, granted leave to file, consolidated the motions and set them for submission. (Clinton, J., Miller, J. and Overstreet J., dissenting).
II.
Appellate review is restricted to those actions and proceedings that are within the appellate court's jurisdiction. An appellate court has jurisdiction to determine whether it has jurisdiction on its own motion or upon motion of a party to the appeal. 4 Tex. Jur.3d Appellate Review ง 25 (1980). Once jurisdiction is invoked, that jurisdiction embraces every thing in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App. 1980).
It is well settled that once a court of appeals acquires jurisdiction of a cause, whether by appeal or by the exercise of its original jurisdiction, it may issue writs of injunction as may be necessary to protect or enforce that jurisdiction. Baird v. Sam Houston Elec. Co-op, 627 S.W.2d 732 (Tex. App.โHouston [1st Dist.] 1982, no writ) (citing City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663 (1924). This power, however, is limited generally to preserving the status quo, and to the protection of the subject matter in order that the case will not become moot. Id. 267 S.W. at 733. If appellate jurisdiction is threatened, a court of appeals' right to preserve and protect it cannot depend on the adequacy of legal remedies which might be available to the litigants but which are not available to the court.[5]Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ. App.โSan Antonio 1980, no writ). This Court's appellate jurisdiction is limited to criminal law matters. Tex. Const. art. V, ง 5; Article 4.04, V.A.C.C.P. We have exclusive appellate jurisdiction to review a capital murder conviction wherein a sentence of death has been assessed. Articles 4.04 ง 2 and 4.03, V.A.C.C.P. As the court of last resort in criminal matters, no other state court has authority to override or circumvent this Court's decisions or disobey its mandates. State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892 (Tex.Cr.App. 1961).
Relators rely on our decision in Briggs, supra, for the proposition that respondent exceeded its jurisdiction when respondent enjoined the execution of Graham. Briggs is distinguishable. In Briggs, we issued a writ of prohibition because the relief sought enforced the original jurisdiction of this Court in habeas corpus cases. In Briggs, the judge of the 117th District Court in Nueces County stayed the execution of a capital murderer upon an application for habeas corpus relief. We set aside the stay and denied the habeas application. Thereafter, the trial judge of the convicting court rescheduled the execution date. Applicant presented another eleventh hour habeas corpus application. Again, the judge of the 117th District Court granted a stay. Relator, in that action, petitioned this Court for a writ of prohibition against the judge of the 117th District Court to prevent him from taking any further action or holding any further hearings on the application. We granted relief. The 117th District Court was re-litigating by way of habeas corpus applications issues that had already been raised and rejected by this Court in previous habeas applications or on original appeal. We were protecting our original habeas corpus jurisdiction rather than exclusive *406 appellate jurisdiction to review death penalty cases.
The posture of this case is decidedly different than Briggs. Respondent's injunction that in effect stayed the execution of Graham was not by way of a habeas corpus application nor was it entered to review previously raised and rejected issues. It was entered in aid of respondent's appellate jurisdiction and not as an advance determination of the merits of the appeal.
III.
Mandamus is a drastic remedy to be invoked in extraordinary situations. Perkins v. Court of Appeals, 738 S.W.2d 276, 284 (Tex.Cr.App.1987). In fact, we have said, "A willingness to issue writs of mandamus in less that extraordinary situations would encourage piecemeal litigation and frustrate the efficient administration of justice." State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Cr.App.1992). In order to be entitled to mandamus relief, the relator must establish two essential requirements: (1) that the act sought to be compelled is ministerial as opposed to discretionary, and (2) no other adequate remedy at law is available. Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex.Cr.App. 1989).
IV.
Respondent, in response to Graham's motion for a stay, issued the injunction on the basis that "to proceed with the execution as scheduled would affect the parties' rights pending the disposition of the appeal ... and would destroy the subject matter of the lawsuit." Relators contend that respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham's execution because it usurps the jurisdiction of the convicting court and this Court. Specifically, relators argue that "exclusive jurisdiction to grant a stay of execution or otherwise modify a valid death warrant lies with either the district court which issued the death warrant or the Court of Criminal Appeals."
At this point it is important to remember the circumstances under which respondent issued the order. Graham sought and received injunctive relief against the Board in a civil suit in district court. Relator Board then filed a notice of appeal, thereby invoking the authority of respondent to decide the interlocutory appeal. The notice of appeal superseded any orders of the civil court and the execution could proceed as scheduled. Under respondent's reasoning, its order was necessary to preserve the subject matter of the appeal because executing Graham would impermissibly interfere with its jurisdiction over the appeal and render any decision on the propriety of the civil court's orders moot. Under relators' reasoning respondent's order impermissibly interfered with this Court's exclusive jurisdiction.
V.
Respondent's discretionary exercise of its statutorily authorized injunctive relief powers in effect stayed the execution of Graham. However, in my opinion such does not impermissibly interfere with this Court's exclusive appellate jurisdiction in death penalty cases because it did not and does not address the merits of the capital murder conviction. Respondent issued the injunction for the limited purpose of preserving and protecting its jurisdictionโa right of all courts in this State. Thus, respondent did not exceed its authority by preserving the subject matter of an interlocutory appeal.
I would hold that respondent's duties herein were discretionary and therefore, find that relators are not entitled to a writ of mandamus to compel the vacation of respondent's injunction. Because the majority holds otherwise, I dissent to part II of the majority opinion, but join the remainder of that opinion.
CLINTON, Judge, dissenting.
In these applications for writs of mandamus and prohibition, relators John B. Holmes, Harris County District Attorney, and the Texas Board of Pardons and Paroles (Board) and Texas Department of Criminal Justice (Department) ask this Court to order the Third Court of Appeals to lift its temporary injunction prohibiting execution of convicted capital murderer Gary Graham. The question presented is whether the court of *407 appeals can enjoin Graham's execution in order to protect the rights of the parties in a civil lawsuit initiated by Graham against the Board and the Department. See Tex.R.App. Pro., Rule 43(c). In that lawsuit Graham alleges the due course of law as guaranteed by the Texas Constitution prohibits his execution absent a clemency hearing before the Board. Because the court of appeals acted within its authority under our appellate rules, and because its action in no way encroaches upon this Court's jurisdiction, we should deny relief.
I.
This Court affirmed Graham's capital murder conviction on direct appeal in 1984. See Graham v. State, 671 S.W.2d 529 (Tex.Cr. App.1984). On three occasions Graham has petitioned this Court for post-conviction habeas corpus relief pursuant to Article 11.07, V.A.C.C.P. On all three occasions we denied the requested relief. See Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993). On June 2, 1993, we granted a stay of execution on our own motion, but that stay expired by its own terms 30 days later. The trial court subsequently set Graham's execution for August 17, 1993.
On July 21, 1993, Graham filed suit in the 299th District Court in Travis County, Judge Pete Lowry presiding, seeking declaratory, mandamus, and injunctive relief. Specifically, Graham sought a declaratory judgment that the Texas Constitution mandates a hearing before the Board to allow him to ventilate newly discovered evidence he alleges proves he is innocent of the capital offense for which he stands to die, as well as injunctive and mandamus relief to prevent his scheduled execution until such time as he should obtain that hearing before the Board. On August 9, Judge Lowry entered an order temporarily enjoining execution unless by August 10 the Board should have held a clemency hearing, according to specifications set out in the order. He set the cause for trial on the merits on August 23, 1993.
The Attorney General filed notice of appeal of this interlocutory matter on behalf of the Board and the Department on August 10, 1993. This had the effect of suspending Judge Lowry's order granting injunctive relief.[1] Accordingly, on August 12, 1993, Graham filed a motion in the court of appeals requesting it to enjoin his scheduled execution pending the interlocutory appeal of Judge Lowry's decision to grant injunctive relief, in order to preserve the subject matter of the lawsuit. On August 13, the court of appeals granted that request,[2] and ordered that the interlocutory appeal be accelerated.
*408 Relators first filed their applications for writ of mandamus on August 16, 1993. This Court denied leave to file the applications, State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873 (Tex.Cr.App.1993), but, paradoxically, granted an attendant emergency motion for stay of execution filed by Graham on the same day. That stay remains in place to this day.[3] On November 9, 1993, we "reconsidered" our denial of leave to file relators' applications for writ of mandamus under Tex.R.App.Pro., Rule 211(c), and granted them in an unpublished order. The applications were consolidated, and oral argument was scheduled and heard on December 1, 1993. Applicants pray that we issue a writ of mandamus or prohibition to order the court of appeals to dissolve its injunction against Graham's execution.
II.
As always in an application for writ of mandamus or prohibition, the threshold question is whether that extraordinary remedy will lie. Since 1978, Article V, ง 5 of the Texas Constitution has conferred upon this Court original mandamus and prohibition authority "in criminal law matters[.]" Of course, the Court has also long had "the power to issue such other writs as may be necessary to protect its jurisdiction and enforce its judgments." Id. It is not entirely clear which of these powers relators are attempting to invokeโour general authority to issue writs "in criminal law matters," or our ancillary authority to issue writs to protect our jurisdiction. Either way, mandamus does not lie.
To begin with, the question whether a court of appeals can issue temporary injunctive relief in the protection of its own jurisdiction is hardly "a criminal law matter." Even if it were, before this Court will exercise its general mandamus power, we look to see whether applicants have an adequate remedy at law, and whether the act they seek to compel or prohibit is either purely ministerial, is to set aside an unauthorized order, or else is the only act discretion will allow under the law and the facts. E.g., State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). Applicants meet none of these criteria. Finally, the Court need not exercise its power to issue writs to protect our own jurisdiction because, so far, the court of appeals has done nothing to compromise either the jurisdiction or any judgment of this Court.
Criminal Law Matters
In order to decide whether applicants are requesting the exercise of our original mandamus power "in criminal law matters," it is *409 necessary to keep a proper perspective. The issue is a narrow one: Did the court of appeals have authority to grant an injunction against the Board and the Department in order to protect the subject matter of the litigation? We must keep in mind that the only matter presently before the court of appeals is an interlocutory appeal. Whether due course of law compels the Board to conduct a clemency hearing is not before this Court or the court of appeals. All that is yet justiciable in the court of appeals is the question whether Judge Lowry had authority to enter an injunctive order to preserve the subject matter of the litigation currently pending in his court. All that is before this Court, in turn, is the question whether the court of appeals acted within its authority to enjoin the execution pending resolution of the interlocutory appeal.
This Court has long recognized that the appropriateness of equitable reliefโeven the appropriateness of enjoining litigants from violating provisions of the Penal Codeโis peculiarly a civil law question. Ex parte Zuccaro, 72 Tex. Crim. 214, 162 S.W. 844 (1913); Ex parte Mussett, 72 Tex. Crim. 487, 162 S.W. 846 (1913).[4] "[I]t is well settled that equity will interfere when necessary to protect civil or property rights, and the fact that the commission of a statutory offense must be enjoined as an incident to the giving of proper relief will not deprive the court of its jurisdiction in this respect." 18 Tex. Jur.3rd Criminal Law ง 45, at 81 (1982).
Graham filed suit under the Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code. Section 37.003(a) of the Act provides that "[a] court of record within its jurisdiction has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed."[5] Under Article V, ง 8 of the Texas Constitution:
"District Court Jurisdiction consists of ... original jurisdiction of all actions, proceedings, and remedies, except in cases where... original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction."
Thus, unless "original jurisdiction" over the question whether the Board must conduct a clemency hearing has been "conferred ... on some other court, tribunal, or administrative body[,]" the 299th District Court had original jurisdiction to entertain Graham's lawsuit. In any event, the district court would have jurisdiction at least to decide whether it had jurisdiction over the action, and to dismiss the petition should it find it does not.
The appellate jurisdiction of the court of appeals extends, in turn, to "all cases of which the District Courts ... have original... jurisdiction." Article V, ง 6, Texas Constitution. It may be that Judge Lowry mistakenly concluded he had jurisdiction to declare whether the Board must hold a clemency *410 hearing, and that he therefore had no authority to decide Graham's petition, much less grant injunctive relief to preserve the subject matter.[6] But the court of appeals has jurisdiction to decide whether Judge Lowry erred to assume his court had jurisdiction. See 4 Tex.Jur.3d Appellate Review ง 25, at 40-41 (1980); Matlock v. Williams, 281 S.W.2d 229 (Tex.Civ.App.โBeaumont 1955, no writ). Indeed, in his interlocutory appeal to the court of appeals relator Holmes invokes that court's appellate jurisdiction to argue that the district court had no jurisdiction over the question of how the Board exercises its clemency function because judicial intervention would violate separation of powers under Article II, ง 1, Texas Constitution.[7]
So far, then, we have an appellate question involving jurisdiction of the lower court to encroach upon an executive function. Obviously Judge Lowry concluded his court had that jurisdiction, and now, in order to decide the interlocutory question whether he could enjoin the Board and the Department, the court of appeals must decide if that conclusion is correct. In the meantime, the court of appeals has issued its own temporary injunction under Tex.R.App.Pro., Rule 43(c), and V.T.C.A. Government Code, ง 22.221(a). The "subject of the mandamus litigation" is simply whether the court of appeals somehow exceeded its authority to do so. See Smith v. Flack, 728 S.W.2d 784, at 788 (Tex.Cr.App. 1987). That the court of appeals may be called upon to decide whether Judge Lowry had jurisdiction to decide whether the Board must hold a hearing does not transform the question before this Courtโcan the court of appeals itself grant injunctive relief to preserve the subject matter of the interlocutory appeal?โinto a criminal law matter.
It is perhaps possible to view the "subject of the mandamus litigation" more broadly to encompass the substantive question in the interlocutory appeal, viz: Does the district court have jurisdiction to enjoin Graham's execution temporarily unless the Board holds a clemency hearing? Simply because the Board's constitutional clemency powers are reiterated in the Code of Criminal Procedure, Article 48.01, V.A.C.C.P., it might be argued that "a criminal law is the subject of the litigation." Smith v. Flack, supra.[8] But an injunction is an equitable remedy. It is clear enough that the Texas Supreme Court does not consider the question whether a district court has jurisdiction to grant equitable relief even in what may fairly be described as a criminal law matter itself to be a criminal law matter. In the very recent case of State v. Morales, 869 S.W.2d 941 (Tex. 1994), the Supreme Court held that a district court did not have jurisdiction to issue a declaratory judgment that a penal code provision was unconstitutional, and to enjoin prosecution under that provision. The Supreme Court rendered this decision in a writ of error from an appeal to the Third Court of Appeals. But the appellate jurisdiction of the Supreme Court extends "to all cases except in criminal law matters." Article V, ง 3, Texas Constitution. Because the Supreme Court does not have appellate jurisdiction over criminal law matters, it could not have considered the question of the district court's equity jurisdiction in Morales to have been a criminal law matter and nevertheless entertained a writ of error on that question.[9]*411 Unless we are to hold that "criminal law matter" under Article V, ง 5 means something different than the same language in Article V, ง 3, we cannot now hold that the broader question whether Judge Lowry had equity jurisdiction in this cause is a criminal law matter without contradicting what the Supreme Court did in exercising its appellate jurisdiction in Morales.
No Other Adequate Remedy at Law
In the long run, relators' remedy on appeal proves no less adequate than any we could give him in the exercise of our general mandamus authority. Either way, Graham cannot be executed until the decision is made whether Judge Lowry's Court has jurisdiction to determine the issues raised in his petition.
The underlying question whether the district court had jurisdiction to grant a temporary injunction can be decided in due time by the court of appeals.[10] Further review up the appellate ladder may or may not be permissible.[11] But that is not the subject of the mandamus litigation. The subject of the mandamus litigation is whether the court of appeals lacked authority to grant injunctive relief to preserve the subject matter of the interlocutory appeal. We know of no mechanism by which relators can take the question of the propriety of the court of appeals' injunction further up the appellate ladder in some interlocutory fashion for discretionary review. Thus, in a very real sense it appears relators have no adequate remedy at law.
Ultimately, however, for this court to grant mandamus relief in this matter proves no more efficacious to relators than waiting for the court of appeals to issue its opinion on the underlying issue of the district court's jurisdiction. This is so because the only thing that would make the court of appeals' injunction subject to our mandamus power is that the court of appeals lacked authority to grant it; and the only conceivable reason the court of appeals might have lacked authority is that Judge Lowry lacked jurisdiction over the cause in the first place.[12] That is in fact what relators contend here. See text, post. Until such time as we should resolve that question against Graham's interests, and order the court of appeals to dissolve the injunction, it will remain in place. Moreover, even if the injunction did not remain in place, this Court would surely issue a stay of execution, had it not done so already, in order to protect its own jurisdiction. Either way, Graham cannot be executed for as long as it takes for one forum or the other to decide whether Judge Lowry had jurisdiction over his purported lawsuit.[13] It behooves relators nothing to obtain mandamus relief in this Court that simply waiting for the decision of the court of appeals would not behoove them equally well.[14]
*412 Ministerial Duty
Manifestly, the court of appeals' decision to grant injunctive relief to protect the subject matter of the litigation was judicial, not ministerial. While this Court may mandamus a lower court to perform some judicial function, it will not ordinarily mandamus the court to perform that function in a particular way or to some particular end. State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Cr.App. 1985); State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987). If under the law and the facts, however, there is only one proper order that can be rendered, this Court will grant mandamus relief. State ex rel. Vance v. Routt, supra; Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980). The question here is whether dismissing its temporary injunction is the only proper course for the court of appeals to take under the circumstances.
Clearly the court of appeals has authority to grant "temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal" under Rule 43(c), supra. See also Government Code, ง 22.221(a), supra; 16 Tex.Jur.3rd Courts ง 83, at 378-380 (1981). Relators do not really argue otherwise. They contend, instead, that any exercise of that authority to grant an injunction against executing Graham amounts to a stay of execution. That, relator Holmes argues, interferes with the jurisdiction of the 182nd District Court in Harris County, in which Graham was convicted, the jurisdiction of this Court, which affirmed that conviction and issued its mandate, and the order of the 182nd District Court setting a date for execution pursuant to that mandate. The Board contends, moreover, that only this Court has authority to decide whether the Board must hold a hearing as a condition precedent to carrying out our mandate, by virtue of Article 11.07, ง 3, V.A.C.C.P. Thus relators essentially urge that by enjoining Graham's execution the court of appeals has usurped the jurisdiction of the convicting court and of this Court.[15] I do not agree.
Once this Court's mandate has issued affirming a capital murder conviction, the convicting court has jurisdiction only to perform the essentially ministerial duties of pronouncing and imposing sentence and setting the execution date. In Graham's case these duties were carried out. Graham's lawsuit does not attack the validity of the convicting court's judgment and sentence, so there is no danger that Judge Lowry or the court of appeals will attempt to set those aside. It is true that the court of appeals' injunction postponed the execution scheduled for August 17. In so doing, the court of appeals impinged upon the convicting court's authority to set a specific execution date. Article 43.14, V.A.C.C.P. That amounts to nothing more, however, than a delay in carrying out the judgment and sentence, which is not itself under attack, but instead remains, in the interim, fully in effect.[16]
*413 If Graham's lawsuit is allowed to proceed, there are any number of possible scenarios that can play out. None interferes with the convicting court's judgment and sentence, or our mandate thereon. First, the court of appeals could decide Judge Lowry has no jurisdiction to entertain Graham's lawsuit at all, and hold that his temporary injunction was invalid. Assuming that decision is not overturned on discretionary review or writ of error,[17] the trial court is free to set a new execution date. Second, the court of appeals could hold that Lowry's injunction was valid, and trial on the merits could commence in the district court. Judge Lowry might then rule that due course of law does not require the Board to conduct a clemency hearing.[18] Assuming that ruling were to survive the appellate process, again, the convicting court could set a new execution date. A third scenario follows from a final ruling at any level, trial or appellate, that due course of law does in fact require the Board to hold a hearing. The trial court can then set a new execution date, and as long as the Board holds a hearing prior to that date, any decision not to recommend that the Governor grant clemency in spite of whatever evidence Graham may present will result in his execution at the appointed time. Only in the event that the Board responds to Graham's newly discovered evidence by recommending a pardon or commutation of sentence will the judgment and sentence of death become a nullity. But executive clemency always interferes with the judgment of the judiciaryโ that is the constitutional prerogative of the executive branch! Article IV, ง 11, Texas Constitution. In short, nothing that can come of the lawsuit filed in Judge Lowry's court will interfere with the ultimate execution of the convicting court's judgment and sentence, or this Court's mandate, except insofar as the executive branch may lawfully intervene.
Relators rely heavily upon our opinion in State ex rel. Wilson v. Briggs, 171 Tex. Crim. 479, 351 S.W.2d 892 (1961), for the proposition that the district court lacked jurisdiction to enter any order adversely affecting this Court's appellate mandate. I think Wilson is distinguishable, however. In Wilson this Court issued a writ of prohibition to protect, not its appellate jurisdiction, but its original jurisdiction "in habeas corpus cases." Id., 351 S.W.2d at 894. A state district court judge, Briggs, granted an eleventh hour stay of execution for a convicted capital murderer, Stickney, and issued a writ of habeas corpus returnable to this Court under former Article 119, C.C.P. (1925), now Article 11.07, supra. This Court denied relief, and lifted the stay. A new execution date was set. At the eleventh hour before the rescheduled execution, Briggs granted another stay, and set a hearing in his courtroom. The Attorney General and the Harris County District Attorney petitioned this Court to issue a writ of prohibition against Judge Briggs to prevent him from interfering further with Stickney's execution. The Court granted the requested relief "in order to enforce the jurisdiction of this Court[.]" Id., at 896. That holding is premised, however, on the fact that all three grounds upon which Judge Briggs based his final stay of execution had already been raised and rejected by this Court in previous post-conviction habeas corpus proceedings. Id., at 895. In effect, we were acting to protect judgments already rendered in our original habeas corpus jurisdiction from the machinations of a district court judge who felt that we should reconsider them. We were not protecting our appellate jurisdiction. Here, of course, we have rendered no decision, by habeas corpus or otherwise, respecting the question pending in Graham's lawsuit, viz: whether the Board must hold a clemency hearing. Unlike the case in Wilson, supra, here there is no judgment of this Court in a post-conviction matter for us to protect. Moreover, as I have shown ante, any encroachment upon our appellate mandate is, at best, inconsequential. De minimis non curat lex.
*414 Relators argue, however, that only this Court can decide if the Board must hold a clemency hearing. Section 2 of Article 11.07 makes all post-conviction writs of habeas corpus returnable to this court; section 3 makes the remedy here an exclusive one. In order to protect the exclusiveness of that remedy, relators maintain, we should prevent the civil side from exercising jurisdiction over the question by issuing the writ of mandamus, on authority of Wilson.[19] This is in effect an argument that we should invoke our mandamus power to protect our own jurisdiction, rather than our general mandamus power. I turn to that question next.
Protecting our Jurisdiction
Section 2 of Article 11.07 provides that "[a]fter final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas...." Section 3 reads, "[a]fter conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner." Because Graham's conviction is final, relators argue, any remedy to which he is entitled must emanate from this Court by way of post-conviction writ of habeas corpus.
Graham's lawsuit in Judge Lowry's court does not, however, attack the validity of his capital murder conviction. Should he prevail, Graham will be neither released from confinement, nor absolved of the death penalty. The judgment and sentence against him in his criminal case will not be affected in any way.[20] A declaratory judgment in Graham's favor would only compel the Board to hold a clemency hearing. It would not dictate a particular outcome to that hearingโindeed, it could not, consonant with principles of separation of powers under Article II, ง 1, supra. Only if the Board should exercise its discretion, following such a hearing, to recommend clemency, would there be an invasion of our appellate jurisdiction. And that is a legitimate executive invasion.
For many years we held that habeas corpus is not available to secure a judicial determination of a question that, even if determined in the prisoner's favor, could not result in his immediate discharge. E.g., Ex parte Ruby, 403 S.W.2d 129 (Tex.Cr.App. 1966). A judicial determination that Graham is entitled to a clemency hearing before the Board would not result in his discharge. Therefore, consistent with the holding of cases such as Ruby, habeas corpus would not lie, either under Article 11.07 or otherwise. In short, Article 11.07 would not be an available remedy at all, much less the "exclusive... proceeding ... in discharging the prisoner."[21]
In recent decades we have retreated from the position that a habeas applicant must seek immediate release or discharge in order for the writ to lie. In Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971), we allowed an inmate to challenge the ex post facto application *415 of a statute postponing parole eligibility in a post-conviction habeas corpus proceeding. We did so even though we acknowledged that Alegria was not seeking "outright release or discharge" and that the decision whether to actually parole an inmate is for the executive branch to make. Id., at 871 & 875. For the proposition that actual discharge is no longer a prerequisite to habeas corpus cognizability, we relied uncritically (as we have been wont to do, see Ex parte Crispen, 777 S.W.2d 103, at 106-110 (Tex.Cr. App.1989) (Clinton, J., concurring)) upon the federal habeas corpus analog. Id., at 871, citing Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968); see also Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).[22] In many cases since Alegria we have entertained challenges under Article 11.07 to the constitutionality of statutes and regulations adversely impacting parole eligibility, even though the ultimate discretion whether to discharge an eligible inmate on parole remains with the Board. E.g., Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987); Ex parte Rutledge, 741 S.W.2d 460 (Tex.Cr.App.1987); Ex parte Choice, 828 S.W.2d 5 (Tex.Cr.App.1992).[23]
Simply because we have extended our post-conviction habeas corpus jurisdiction to reach matters that do not involve "discharging the prisoner" does not mean, however, that the exclusiveness of the proceeding under Article 11.07, ง 3, is likewise extended. The relevant language of Section 3 was contained in the predecessor to Article 11.07, see Art. 119, supra, when it was originally promulgated in 1943. See Acts 1943, 48th Leg., ch. 233, ง 1, p. 355, eff. May 6, 1943. At that time the writ of habeas corpus was only available for the purpose of "discharging the prisoner." Section 3 of Article 11.07 was meant to make habeas corpus returnable to this Court the "exclusive ... proceeding ... in discharging the prisoner" once he had been finally convicted for a felony offense. The Legislature could not have contemplated in 1943 that Article 11.07 should be the exclusive proceeding for accomplishing any other objective than "discharging the prisoner" following final conviction, since at that time no other objective was obtainable at all by habeas corpus, whether returnable in this Court or not.[24] For this reason, if no other, I take *416 Section 3 to mean literally what it says, and no more: Article 11.07 is the exclusive proceeding, after a final felony conviction, for discharging the prisoner. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991).
In his lawsuit in Judge Lowry's court, Graham does not seek a discharge from his confinement or sentence of death. To the extent that Article 11.07 may be an available avenue by which he might obtain a ruling whether the Board must grant him a clemency hearing, he would not, in that context, be seeking a discharge either. It follows that Article 11.07 is not an exclusive proceeding for litigating that question, Section 3 notwithstanding.[25]
Therefore, to the extent it stands for the proposition that we have mandamus authority to protect our judgments in post-conviction habeas corpus, State ex rel. Wilson v. Briggs, supra, is inapposite here. We have no habeas corpus judgment, nor any exclusive habeas corpus jurisdiction in this matter to protect. Accordingly, we have no call to invoke our mandamus authority against the court of appeals to protect our jurisdiction.
III.
Advisory Opinions
The Board urges us to treat its application for writ of mandamus and prohibition as a habeas corpus proceeding, and to hold that it does not have to afford Graham a clemency hearing. However, the Court has no application for writ of habeas corpus before it. Although district and county courts are authorized to issue a writ of habeas corpus sua sponte, see Article 11.16, V.A.C.C.P., there is no like provision authorizing sua sponte issuance by this Court. Nor should we treat the Board's application for mandamus and prohibition relief against the court of appeals as a veiled application for writ of habeas corpus on Graham's behalf. Even if we were to view the Board as a "person" who may present the application of an "applicant" "for him," the Board is hardly "present[ing] a petition" in Graham's behalf "for the purpose of obtaining relief." Articles 11.12 & 11.13, V.A.C.C.P. For these reasons we should decline relators' invitation to reach the questions raised in Graham's lawsuit on habeas corpus.
Nevertheless, the majority does purport to decide that habeas corpus would lie, under Article 11.07, supra. Strangely, the majority does not decide that the question whether the Board must hold a hearing is cognizable under Article 11.07, supra; instead, it decides that the question whether Graham is actually innocent is. But by the time the majority reaches this question, it has already concluded that mandamus and prohibition relief will be granted. Thus, the conclusion that Graham can raise a claim of actual innocence in a habeas corpus proceeding in this Court is wholly unnecessary to disposition of the applications for writ of mandamus and prohibition. In this respect, the majority opinion is baldly, unabashedly advisory. This Court has no power to issue advisory opinions. See, e.g., Garrett v. State, 749 S.W.2d 784, at 803 (Tex.Cr.App.1988) (Plurality opinion on State's motion for rehearing); Ex parte Ruiz, 750 S.W.2d 217, at 218 (Tex.Cr.App. 1988); Sims v. State, 792 S.W.2d 81, at 82 (Tex.Cr.App.1990); Armstrong v. State, 805 S.W.2d 791, at 794 (Tex.Cr.App.1991).[26]*417 Moreover, although the majority has ordered the court of appeals to lift its injunction, that court is apparently otherwise free to proceed with relators' interlocutory appeal. See n. 13, ante. It seems odd for the majority to allow that lawsuit to proceed while suggesting that Graham should raise another claim in another forum.
Because the Court's opinion is advisory, I refrain from advancing any full-blown opinion on the merits of the question whether habeas corpus would lie for Graham's claim of actual innocence, if any. However, I am disturbed that the majority's apparent regard for stare decisis is so slight that it would reach out to upset, to whatever "extent" it is inconsistent with its advisory opinion (I cannot tell), a holding as well established as Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983). Op. at 414.
Impossible Burdens
I am compelled to add one more observation about the advisory portion of the majority's opinion. In setting the standard that a putative habeas applicant would have to meet to show actual innocence under the Fourteenth Amendment, the majority has given with one hand and taken away with the other. Graham can make out a cognizable claim of actual innocence, says the majority, if he can show that, considering the evidence admitted at trial together with the newly discovered evidence, no rational jury could find guilt beyond a reasonable doubt. Thus, as per Justice White's suggestion, the majority imports a Jackson v. Virginia sufficiency of the evidence standard into the actual innocence calculus.[27] This is an impossibly high standard of proof. By that I do not mean that as a practical matter precious few applicants will be able to produce new evidence sufficiently compelling to meet the majority's test. By that I mean that it will be impossible by definition for any applicant to meet the test, regardless of how compelling his newly discovered evidence.
This is so because any evidence sufficient to support a jury's verdict beyond a reasonable doubt at trial will also be sufficient to support a rational jury's guilty verdict even after adding the most compelling newly discovered evidence to the mix. In Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), the Court jettisoned the "reasonable alternative hypothesis" understanding of the Jackson v. Virginia test for sufficiency of the evidence under the Fourteenth Amendment, an understanding that we had previously embraced in Carlsen v. State, 654 S.W.2d 444 (Tex.Cr. App.1983). Assuming that evidence adduced at trial was sufficient to support a rational jury finding of guilt, all that newly discovered evidence could do is either 1) conflict with that evidence, in which case the jury's verdict of guilt remains rational, since we presume it resolved all conflicts in the light most favorable to the verdict; or, 2) create a reasonable alternative hypothesis, that is, an inference of innocence that is as consistent with all the evidence, trial-adduced as well as newly discovered, as is the inference of guilt. Under Carlsen, supra, given this second scenario, we would have declared the evidence insufficient. See also Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982). Presumably, applying that standard to the habeas applicant who claims newly discovered evidence that shows his actual innocence, a colorable claim could be made, and applicant might even prevail.
But under Geesa, supra, as long as there is a rational inference of guilt to be derived from all the evidence, it does not matter whether there is also an equally consistent inference of innocence; the evidence will be declared sufficient. In essence, we have rejected the notion of Carlsen that as long as there is an inference of innocence that is consistent with all the evidence, no rational *418 trier of fact can accept an equally consistent inference of guilt beyond a reasonable doubt. Absent that possibility in our understanding of the Jackson v. Virginia sufficiency standard, it sets up an insurmountable obstacle when applied to the habeas applicant trying to establish a claim of actual innocence under the Fourteenth Amendment. He simply will not be able to show actual innocence, because no amount of newly discovered evidence will overcome the rationality of the jury's verdict of guilt based upon the evidence that was adduced at trial.
I am at a loss to understand why the majority would go to the trouble of, and risk censure for, devising such an elaborate advisory opinion, recognizing cognizability of a claim of actual innocence in post-conviction habeas corpus, and then announcing a burden that ensures that no applicant can ever obtain relief on the basis of that new claim. I cannot help but come away with an abiding impression that the majority's objective in this whole matter has been to wrest control of Graham's destiny from the courts of equity, and the executive branch, and to ensure that when he finally appears before this Court, he cannot prevail. In my view, the Court is entirely too jealous of its turf.
IV.
The Court errs to grant mandamus and prohibition relief in this cause. It compounds that error by issuing an advisory opinion on the availability of habeas corpus relief in the absence of any application from Graham. For these reasons I respectfully dissent.
MEYERS, J., joins.
MEYERS, Judge, dissenting.
Unfortunately, a great deal of the confusion and controversy surrounding this case arises because the ultimate judicial authority in our State is shared by this Court and the Texas Supreme Court. Our Constitution provides that the Supreme Court's "appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters ..." Tex. Const. art. V, ง 3. This Court, on the other hand, has "final appellate jurisdiction... in all criminal cases of whatever grade..." Tex. Const. art. V, ง 5. Ideally, it would be desirable to interpret these two provisions as mutually exclusive, such that every appealable case or controversy falls within the final appellate jurisdiction either of the Supreme Court or of the Court of Criminal Appeals, but never of both. Such an interpretation is only possible, however, if the key phrases "criminal law matters" and "criminal cases" are construed to mean exactly the same thing. Otherwise, it necessarily follows that the Supreme Court and the Court of Criminal Appeals have concurrent appellate jurisdiction in some cases, that neither court has appellate jurisdiction in other cases, or that both jurisdictional conditions are true.
If it were clear that the questions raised by Gary Graham's suit for declaratory judgment in the 299th District Court of Travis County would ultimately reach this Court on appeal, and not the Texas Supreme Court, we would not entertain the instant cause of action. Under such circumstances, it seems unlikely any judge on this Court would take the view that our prior judgment affirming Graham's conviction for capital murder, or the mandate making it final, was in danger of compromise. We would undoubtedly be content to let the normal appellate process run its course, confident that such course would ultimately lead to us, and to us alone.
But a majority of the judges on this Court are not confident that the issues raised by Graham's lawsuit, including the interlocutory controversy now pending before the Third Court of Appeals, will reach this Court by direct appellate review. Consequently, they are willing to interrupt the normal appellate process with an extraordinary writ, commanding the lower courts to relinquish jurisdiction of these matters, precisely in order to prevent the usual appellate process from leading eventually to the Texas Supreme Court or from terminating in the Third Court of Appeals. While I too am concerned that this State's bifurcated judicial process could sometimes generate conflicting decisions at the highest level on identical questions of law, I am not willing to torture our mandamus and habeas corpus jurisprudence in order *419 to fight a turf war with other Texas courts.
If there is a problem, it lies with the lines dividing the constitutional jurisdiction of this Court and the Texas Supreme Court. It certainly does not involve, at least not at present, questions of trial court or intermediate appellate court jurisdiction. Thus, it is clear that the 299th District Court did in fact have jurisdiction of Graham's lawsuit in the ordinary sense, since the Texas Constitution has plainly conferred upon the district courts "exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies," except as otherwise expressly provided by law. Tex. Const. art. V, ง 8. And there is no question but that such jurisdiction extends both to civil and to criminal cases, as well as to matters involving both the civil and the criminal law.
Likewise, the Third Court of Appeals certainly has jurisdiction to determine questions arising from appealable orders and judgments, both final and interlocutory, of the 299th District Court in connection with Graham's lawsuit, since the Texas Constitution unambiguously provides that the "Courts of Appeals shall have appellate jurisdiction ... which shall extend to all cases of which the District Courts ... have original or appellate jurisdiction[.]" Tex. Const. art. V, ง 6. This jurisdiction undoubtedly embraces civil and criminal cases alike, extending as well to questions of criminal as to civil law.
Accordingly, whether the controversy between Graham and the Parole Board is a civil or a criminal case within the meaning of the Texas Constitution is irrelevant to the jurisdiction of the lower courts in which it is pending. The only consequence of significance which follows from a determination that the case is criminal or that it involves matters of the criminal law has to do with the jurisdiction of this Court and of the Supreme Court. If, for example, the controversy involves "criminal law matters," as a majority of this Court has held, such that it is a proper subject for the exercise of our mandamus jurisdiction under article V, section 5 of the Texas Constitution, then we would necessarily also conclude that neither party may appeal an adverse decision of the Third Court of Appeals to the Texas Supreme Court, since the latter does not have appellate jurisdiction of cases involving "criminal law matters." Tex. Const. art. V, ง 3. Because this Court has jurisdiction to "review a decision of a Court of Appeals in a criminal case as provided by law," Tex. Const. art. V, ง 5, the only remaining question affecting the possibility of further appellate review is whether Graham's lawsuit should be considered a "criminal case" for purposes of constitutional interpretation.
Meanwhile, the entire controversy with which we are here concerned is whether the lower courts may legitimately maintain a state of equilibrium between the parties while they litigate their differences. It strikes me as witless for this Court to prevent such an agreeable result, using its extraordinary powers as a pretext to bring about essentially the same outcome itself. The cruel truth is that this case has little to do with the adequacy of our State's usual appellate process effectively to vindicate the interests at stake in Graham's litigation. Indeed, the Court barely disguises its real motive, holding that an appellate remedy is too "tedious, slow, inconvenient, inappropriate or ineffective" for this case because it "would necessarily require relators to wait until final judgment is entered, and the appeals process would likely be through the civil courts." Op. at 394.
This rationale is an open affectation, lacking even the appearance of legitimacy. Waiting for final judgment is not an unusual or extreme burden on litigants in our system of adjudication. Rather, it is the typical prerequisite to appellate review, common to virtually all cases, both civil and criminal. If the need for finality were to be considered a sound basis for the exercise of our extraordinary writ jurisdiction in general, then the appellate process as a whole would exist only at the pleasure of this Court.
Moreover, the possibility that Graham's case might pass its entire appellate lifespan in "the civil courts" is an equally transparent bit of fiction. In the first place, the Third Court of Appeals is not a civil court. As already noted, its jurisdiction extends both to civil and to criminal cases. Thus, the only *420 "civil court" to which an appeal of Graham's case might finally come is the Supreme Court of Texas. Yet, because a majority of this Court seems convinced that the case involves criminal law matters, it conversely must be convinced that the Supreme Court lacks jurisdiction of it. Accordingly, the majority's own process of reasoning makes it clear that Graham's case must either come to this Court eventually or expire in the Third Court of Appeals. Why this circumstance should render the appellate process itself inadequate is not evident from the Court's opinion, but it would appear that the majority simply will not tolerate the possibility, however remote, that the Texas Supreme Court might somehow acquire jurisdiction of these matters.
I am far less concerned, however, about that possibility than I am about this Court rampaging through the civil and criminal jurisprudence of Texas. For no better reason than that Graham was adjudged guilty of capital murder and sentenced to death, and that the judgment against him was affirmed on appeal, this Court holds that the Court of Appeals may not enjoin his execution pending disposition of a lawsuit which might result in his pardon, because it would "circumvent our judgment and disobey our mandate." Op. at 395. In my view, this attitude is not only misguided as a matter of law, but indefensibly chauvenistic as well.
The judgment of this Court is not an order that Gary Graham be executed. It is merely a declaration that no error in his trial has yet been brought to our attention which would require the judgment of conviction or sentence of death against him to be set aside. Consequently, the order of another court that Graham's execution be postponed until it can be determined whether the Board of Pardons and Paroles must hold an evidentiary hearing on his request for executive clemency does not interfere at all, let alone disobey, this Court's mandate. Neither our judgment affirming Graham's conviction nor the mandate making it final are under attack, either in the 299th District Court or in the Third Court of Appeals. Even if Graham prevails on his lawsuit in these courts, the judgment will not purport to unconvict him of capital murder. It will merely adjust his legal relationship with the executive branch of our government.
In the end, what is most subversive about this Court's decision to terminate Graham's lawsuit is that it disrespects the legal process. All of the courts immediately affected by our writ of mandamus in this case have thus far comported themselves in a manner entirely consistent with their constitutional jurisdiction and statutory authority. There is simply no reason to believe that they would do otherwise if the normal process of adjudication and appeal were allowed to run its course, free of hysterical interference from this Court. Additionally, there is not the slightest defensible reason to suppose that such process would produce orders or judgments which conflict with the judgment of conviction against Gary Graham, that any erroneous orders or judgments would not be corrected by further discretionary review, or that such further direct review would not be fully adequate to protect the interests of the State of Texas.
To make matters even worse, this Court further concludes that Graham's claim of innocence is really a proper subject for the exercise of our habeas corpus jurisdiction, even though it is perfectly clear that the relief sought by Graham, an evidentiary hearing before the Board of Pardons and Paroles and an act of clemency from the Governor, cannot be granted by this Court at all. Habeas corpus is a constitutional and legislative remedy to free persons from unlawful restraint. As contemplated by article 11.07, section 2 of our Code of Criminal Procedure, it is a writ to discharge prisoners who are illegally confined on account of final felony convictions. In his lawsuit, Graham does not allege that either one of these circumstances is true, and no one has yet filed an application on his behalf which contends that his conviction is invalid or his confinement illegal.
It may very well be the case that Graham's claim of actual innocence is eventually recognized by this Court as a basis for setting aside his conviction and sentence of death, although we have recently been disinclined to entertain such claims from similarly situated *421 death row inmates. It may well be that we someday take cognizance of Graham's actual innocence claim in a habeas corpus proceeding, although some of our existing case law must be overruled or significantly qualified in order to do so. It may also be that we decide to make the fundamental changes in our habeas jurisprudence which are necessary to achieve these ends. But such issues have nothing to do with whether Graham is entitled to an evidentiary hearing before the Board of Pardons and Paroles, and it would be a cruel irony indeed if he were prevented from litigating the issue of his entitlement to a clemency hearing just because this Court believes that the validity of his conviction should be litigated instead. In fact there is nothing in the logic of our jurisprudence to prevent both actions proceeding at once.
This case is so far from being a just or prudent exercise of our power to issue extraordinary writs that it slanders the wisdom of those Texans who voted to confer it upon us little more than a decade ago. Today, we have unilaterally defined a boundary marking the limit, not only of its own jurisdiction, but of the Supreme Court's as well. We have construed article V, section 5 of the Texas Constitution, and by necessary implication article V, section 3 also. We have done this absent any consultation with our brethren on the Supreme Court and apparently without regard to the impact it may have on their jurisdiction. Our entire manner has had the appearance of a guerilla raid, when it should instead have been a cooperative effort to construe fundamental aspects of Texas constitutional law. In the process, we have violated basic principles of our own mandamus jurisprudence, encouraged the misuse of habeas corpus, and shamelessly interrupted an appellate process which was running exactly as prescribed by law, and which might very well have produced results better than expected by the majority had it been permitted to proceed to final judgment.
I dissent.
CLINTON and MILLER, JJ., join.
NOTES
[1] The temporary injunction specifically ordered:
1. A hearing before an impartial officer;
2. The right for [Graham's] attorneys to confront evidence and witnesses against him and to cross-examine them during such hearing.
3. The right to present witnesses and evidence on [Graham's] behalf, and to have the Board issue subpoenas on [Graham's] behalf for witnesses and evidence at such hearing;
4. The right to a written summary of the findings and decision of the hearing officer;
5. The right to be represented by counsel during such hearing;
6. The right to have the hearing transcribed by a court reporter; and,
7. The right to adequately prepare for such a hearing.
Temporary Injunction (signed August 9, 1993); Graham v. Texas Board of Pardons & Paroles et al., No. 93-08624, pending in the 299th District Court of Travis County, Texas.
[2] Respondent held:
Clearly, to proceed with the execution as scheduled would affect the parties' rights pending the disposition of the appeal from the district-court order of injunction and would destroy the subject matter of the lawsuit. Because to do so would interfere with this Court's jurisdiction over the appeal, we grant the request for relief.
Opinion on writ of injunction, Slip op., pg. 3.
[3] Specifically, the Board asked this Court:
... to vacate the original injunction by the Third Court of Appeals staying Graham's execution; to prohibit the Third Court of Appeals from taking any further action in this cause because these proceedings are criminal matters in a capital case in which the death penalty has been assessed and thus not within the jurisdiction of the civil courts of Texas; to direct the Third Court of Appeals to dismiss the appeal upon notice that the district court has dismissed this cause for want of jurisdiction pursuant to the holding of this Court; and, to assume original habeas jurisdiction to address the issue raised by Graham that a death row inmate is constitutionally entitled to a hearing before the Board of Pardons and Paroles on a request for clemency when he claims actual innocence based upon evidence not introduced at trial.
Petition for Writs of Prohibition and Mandamus, pg. 6.
[4] Specifically, relator Holmes requests this Court to:
... issue a writ of mandamus directing Respondent to vacate its order of August 13, 1993, in Cause No. 3-93-421-CV, Texas ... Further, Relator requests that this Court issue said order granting mandamus relief without undue delay due to the exigency of the issues sub judice, and further requests that a temporary stay be issued by this [Court] in Cause No. 3-93-421-CV pursuant to Tex.R.App.Proc. 121(d).
Petition for Writ of Mandamus, pg. 2.
[5] Art. V, ง 5 provides in part:
The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade....
The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals.
* * * * * *
Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments.
Further, Tex.Code Crim. Proc.Ann. art. 4.04, the legislative enactment of art. V, ง 5, provides:
Sec. 1. The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The court and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments.
Sec. 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.
[6] We have also described the first prong as a clear right to the relief sought which is the functional equivalent of a ministerial act:
... [mandamus] is available only when the relator can establish two things: first, that under the relevant law and facts, he has a clear right to the relief sought, i.e., the act he seeks to compel is "ministerial"....
State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992).
[7] All emphasis is supplied unless otherwise indicated.
[8] We have inherent authority to grant a stay under art. V, ง 5. Tex.R.App.P. 233 provides that the judge of the district court where the defendant was convicted has statutory authority to stay an execution but only when the judge determines that additional proceedings are necessary pursuant to Tex.Code Crim.Proc.Ann. art. 11.07.
[9] Judge Meyers states "the order of another court that Graham's execution be postponed ... does not interfere at all let alone disobey, this Court's mandate." Holmes et al. v. Third Court of Appeals, 885 S.W.2d 389, 420 (Tex.Cr.App., delivered this date) (Meyers, J., dissenting). This contradicts the literal language of our mandate which provides:
This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that the judgment be in all things affirmed ... and that this decision be certified below for observance.
[10] In State ex rel. McNamara v. Clark, 79 Tex. Crim. 559, 187 S.W. 760 (1916), a pool hall owner filed a civil suit to enjoin the county attorney from enforcing a statute known as the "pool hall law." See, Vernon's Sayles' Ann. Civ. Stat.1914, arts. 6319(a)-6319(n). Because the Supreme Court had previously held the statute invalid, Ex parte Mitchell, 109 Tex. 11, 177 S.W. 953 (1915), the trial judge in the civil case entered a writ of injunction against the county attorney precluding the county attorney from enforcing the statute. However, we had previously held the statute to be valid. Ex parte Francis, 72 Tex. Crim. 304, 165 S.W. 147 (1914). The county attorney applied to this Court for a writ of prohibition. We held:
... if the facts set out did not confer jurisdiction upon the district court to issue the writ of injunction, then its action in doing so is wholly void, and if the order is void, and under it the enforcement of the criminal laws of this state is being restrained, we think, under the law, this court has not only the authority, but it is its duty, to declare such order a nullity, in order that the county attorney may proceed with the proper performance of the duties enjoined on him by the other laws of this state the validity of which are not questioned.
Clark, 187 S.W. at 762.
[11] Our review is limited to respondent's jurisdiction to enjoin Graham's execution. Judge Meyers erroneously reads this opinion as ordering "the lower courts to relinquish jurisdiction" of the "issues raised by Graham's lawsuit," Holmes ex rel. v. Third Court of Appeals, 885 S.W.2d 389, 418 (Tex.Cr.App., delivered this date) (Meyers, J., dissenting). This opinion does not preclude respondent from addressing the issues raised by the Board in appealing the order compelling a hearing on Graham's request for clemency. Nor does this opinion preclude Graham from continuing to seek civil review of the clemency process.
[12] The Due Process Clause in the Fourteenth Amendment provides:
... No person shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, ง 1.
[13] We note that in denying Graham's second application for writ of habeas corpus, we summarily overruled a similar claim based on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Graham, 853 S.W.2d at 565. We decide the issue today after extensive briefing by the parties and careful reconsideration of Graham's claim. Consequently, we believe our summary action was erroneous and Graham is not precluded from raising similar allegations in a subsequent writ application. See, Part VI., infra.
[1] When the instant cause was submitted for oral argument, and Graham's counsel was permitted to address this Court for respondent, I recall Graham's counsel arguing his claim solely, and adamantly, in terms of the Texas Constitution and Art. I, ง 19.
[2] It would be appropriate for the State Legislature, if it believes our state's executive clemency procedures need to be more protective of an inmate's rights to due process, to change those procedures to ensure that a person such as Graham will get a more adversarial hearing than he received in the instant cause. The majority's decision will increase the burden on our state's already over-burdened trial courts.
[3] In response to Judge Campbell's concurring opinion, I disagree that ง 143.2(2) is "unworkable and useless." If an inmate files a writ with this Court claiming he has "newly discovered evidence" and we deny the writ based upon Ex parte Binder, that denial would be an order of a court having jurisdiction. There would, of course, be no "findings of fact", but under ง 143.2(2) those findings are optional. The inmate could take that certified order to the Board then subsection (3) would "kick-in." Whether ง 143.2 can be utilized successfully by an inmate is a matter to be resolved by the Legislature.
[1] Graham presented a request for clemency and/or reprieve from the Board and said request was refused. Graham again presented a request for clemency and/or reprieve and the Board has not acted upon the request.
[2] Sec. 13 states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. TEX. CONST. art. I, ง 13.
Sec. 19 states:
No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. TEX. CONST. art. I, ง 19.
[3] Article IV, ง 11 provides in part:
The legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions....
In all criminal cases, except treason and impeachment, the governor shall have power, and after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons. TEX. CONST. art. IV, ง 11 (1876, amended 1989).
[4] The district attorney urged that respondent's order is unlawful because: (1) the order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court's original jurisdictional authority over Graham's case; and (2) the order violates the original jurisdiction of the Court under Art. V, ง 5 Texas Constitution.
The Board urged that respondent's order is unlawful because: (1) exclusive jurisdiction to grant a stay of execution or otherwise modify a valid death warrant lies with either the district court which issued the death warrant or the Court of Criminal Appeals; (2) respondent is procedurally barred from issuing an order that is not coextensive with the limits of its appellate jurisdiction; and (3) a writ of habeas corpus is the only legally cognizable means by which Graham may seek a stay of execution. The Board asks this Court to assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.
[5] Once respondent was vested with jurisdiction to decide the civil court's order of injunction, Graham could have sought a stay of execution from the 182nd District Court of Harris County or this Court. This remedy of seeking a stay of execution was not available to respondent.
[1] Relator Holmes filed an application for writ of mandamus in this Court asking us to order Judge Lowry to dismiss his temporary injunction. In an unpublished order we observed:
"... The notice of appeal recites the named defendants are exempt from filing a cost bond.
"Tex.R.App.Pro. Rule 43(a) provides, in pertinent part that the pendency of an appeal from an order granting interlocutory relief does not suspend the order appealed unless `the appellant is entitled to supersede the judgment without security by giving notice of appeal.' Because the Board of Pardons and Paroles is exempt from posting bond, Judge Lowry's order was suspended by operation of law due to the notice of appeal. Ammex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1984 [sic]); City of San Antonio v. Clark, 554 S.W.2d 732 (Tex.Civ.App.โSan Antonio, 1977, no writ).
"In view of the current status of Judge Lowry's order, none of the parties are presently enjoined from taking any action. Therefore, we deny leave to file the instant original application for writ of mandamus."
[2] In its unpublished order the court of appeals observed:
"... On perfection of an appeal from an interlocutory order, an appellate court may issue `such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal.' Tex.R.App.P. 43(c); see Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789, 790 (Tex.App.โ Houston [1st Dist.] 1990, no writ). An appellate court may issue writs as necessary to enforce its jurisdiction by preserving the subject matter of the lawsuit pending consideration of the merits of the appeal. Tex. Gov't Code Ann. ง 22.221(a) (West 1988); Mote Resources, Inc. v. Railroad Comm'n, 618 S.W.2d 877, 878-79 (Tex.App.โAustin 1981, orig. proceeding).
"This Court acquired jurisdiction over the proceeding when appellants filed their notice of appeal. Ammex Warehouse Co., 381 S.W.2d at 482; see Tex. Gov't Code Ann. ง 20.220(a) (West 1988). In his affidavit in support of the motion, Graham's counsel states that, on August 11, 1993, an assistant attorney general and counsel for appellants told him that appellant's had not rescheduled the execution and that they `planned to carry out the execution of Mr. Graham on August 17, 1993.'
"Clearly, to proceed with the execution as scheduled would affect the parties' rights pending the disposition of the appeal from the district-court order of injunction and would destroy the subject matter of the lawsuit. See Mote Resources, Inc., 618 S.W.2d at 879. Because to do so would interfere with this Court's jurisdiction over the appeal, we grant the request for relief."
[3] By what authority this Court granted the stay on August 16 is a puzzle. Having contemporaneously denied leave to file application for writ of mandamus, and having nothing else before us save Graham's motion that, in the event we grant leave to file, we stay his execution, one might wonder in what respect this court retained jurisdiction to act. We have done so under similar circumstances before. See Ex parte Herrera, 828 S.W.2d 8 (Tex.Cr.App.1992) (stay of execution granted by this Court pending disposition of petition for certiorari in the United States Supreme Court). We have also declined to do so under similar circumstances. See Ex parte Lockhart, 868 S.W.2d 346 (Tex.Cr.App.1993) (motion for stay of execution unaccompanied by application for writ of habeas corpus denied for want of jurisdiction).
In any event, so long as our stay of execution is in place, one might wonder why the question whether the court of appeals had authority to enjoin Graham's execution pending disposition of the State's interlocutory appeal of Judge Lowry's order is not simply moot. Indeed, one might wonder why our stay of execution does not render interlocutory appeal in the court of appeals of the question whether Judge Lowry can enjoin Graham's execution pending trial on the merits of Graham's petition for declaratory judgment is not likewise moot, since presumably Lowry can proceed to trial without worry that the subject of the litigation will expire so long as our stay remains in place. However, presumably the Court will lift its stay of execution should it find that the court of appeals lacked authority to issue injunctive relief, and so proceeds to the merits of the question whether mandamus relief lies.
[4] When a district court has purported to enjoin prosecution of a criminal case, as opposed to enjoining criminal conduct, this Court has stepped in and issued the writ of prohibition. State ex rel. McNamara v. Clark, 79 Tex. Crim. 559, 187 S.W. 760 (1915). So has the Texas Supreme Court. Crouch v. Craik, 369 S.W.2d 311 (Tex.1963). But in McNamara we intervened not under our only-recently-endowed general power to issue writs of mandamus and prohibition "in criminal law matters," but in the protection of our own jurisdiction. However, nothing about the temporary injunction granted by the court of appeals in this cause threatens this court's jurisdiction. See text, post.
[5] See also Administrative Procedure and Texas Register Act, Article 6252-13a, ง 12, V.A.C.S., which provides in relevant part:
"Sec. 12. The validity or applicability of any [state agency] rule ... may be determined in an action for declaratory judgment in a district court of Travis County, and not elsewhere, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff...."
It is true that under Section 21(f) of APTRA, section 12 does not apply to the Board "in the conducting of hearings or interviews relating to the grant, rescission, or revocation of parole or other form of administrative release." To the extent Graham may be seeking a full pardon on account of innocence, however, the exception in Section 21(f) may not apply. The definition of "administrative release" contained in the Board's own rules does not seem to embrace full pardon. Compare 37 Texas Administrative Code, ง 141.111 and ง 143.2. It is at least arguable, therefore, that Graham could bring his lawsuit under APTRA as well.
[6] For example, the Declaratory Judgments Act does not confer jurisdiction upon a district court that does not already have some justiciable controversy before it. E.g., Firemen's Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). But this too is a question for the civil courts to decide. See discussion of State v. Morales, 869 S.W.2d 941 (Tex.1994), in text, post.
[7] Relator Holmes also argues in the court of appeals that this Court has jurisdiction to decide the question whether the Board is exercising its clemency function in a constitutional manner, under Article 11.07, V.A.C.C.P.; and that because Section 3 of that provision makes habeas corpus returnable to this Court in a "procedure" that is "exclusive," the district court had no jurisdiction over Graham's petition. See discussion of this question in the text, post. He does not explain why invoking this Court's post-conviction habeas corpus power to decide whether the Board is exercising its clemency function constitutionally would not likewise violate separation of powers.
[8] But see this writer's concurring opinion in Smith v. Flack, supra, at 794-95.
[9] Had the Supreme Court regarded the question of whether the district court had jurisdiction to grant equitable relief in Morales to have been a criminal law matter, it would have had jurisdiction only to dismiss the writ of errorโjust as this Court dismissed the State's petition for discretionary review in Morales for want of jurisdiction, presumably because it was not a "criminal case" for purposes of our appellate jurisdiction under Article V, ง 5.
[10] Thus, taking the broader view of "the subject of the mandamus litigation," viz: whether Judge Lowry's court had jurisdiction to decide if the Board's clemency proceedings are constitutionally adequate, there is a perfectly satisfactory remedy in the ordinary appellate process.
[11] It appears that a writ of error "is not allowed" to the Texas Supreme Court on this question. V.T.C.A. Gov't Code, ง 22.225(b)(4). Whether this Court could take the question on discretionary review depends upon whether, "criminal law matter" notwithstanding, it is a "criminal case" under Article V, ง 5, Texas Constitution, defining our appellate jurisdiction.
[12] I say "conceivable" advisedly. It would still seem, at any rate, that the court of appeals would have jurisdiction to decide whether Judge Lowry had jurisdiction, and authority to enjoin the execution in the meantime to protect the subject matter of the interlocutory appeal.
[13] Even if this Court orders the court of appeals to remove its temporary injunction, and removes it own stay, it may be a while before Graham could be executed. Because the August 17 execution date has expired, a new execution date will have to be set "not less than thirty days from the day the court sets the execution date[.]" Article 43.14, V.A.C.C.P. In that time the court of appeals could well decide the merits of the accelerated interlocutory appeal.
[14] It may be that relators are more hopeful of obtaining a palatable outcome in this Court. But the office of mandamus is not to supply a more favorable forum, but to supply any forum at all. Mandamus should not be used to dictate a particular result. Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969); Ex parte Newman, 14 Wall. 152, 81 U.S. 152, 20 L. Ed. 877 (1871).
[15] Relators do not here reiterate the argument that Article II, ง 1 of the Texas Constitution prevents the judiciary from intervening in the executive function of the Board. See p. 410 & n. 7, ante.
[16] To the extent the court of appeals' injunction invades the convicting court's exclusive jurisdiction to set the specific execution date, Article 43.14, supra, that invasion is both de minimis and sui generis. It is de minimis because it does not in any way affect the validity of the judgment and sentence, or this Court's mandate. See text, immediately ante and post. It is sui generis in that it is not likely to arise again. There are two possible outcomes should Graham's lawsuit proceed. In either event, the decision there will end any technical encroachment upon the jurisdiction of the convicting court. On the one hand, the civil courts may decide that Graham is entitled under due course of law to a clemency hearing before the Board. In that event, the Board will provide such a hearing both to Graham and to subsequent, similarly situated death row inmates. On the other hand, the courts may decide no hearing is required. Graham's execution will be re-set and subsequently carried out. Future convicted capital murderers raising the same claim will be denied injunctive relief under the doctrine of stare decisis. Should some recalcitrant district court enjoin a future execution date in spite of stare decisis, then it might be appropriate for this Court to intervene in the protection of our appellate mandate. See, e.g., State ex rel. Looney v. Hamblen, 74 Tex. Crim. 526, 169 S.W. 678 (1914). Because any technical invasion on the convicting court's authority to set an execution date is, thus, both de minimis and sui generis, the Court should exercise its discretion to deny mandamus relief.
[17] That is, if either discretionary review or writ of error is even available. See n. 11, ante.
[18] In fairness, this appears an unlikely result, in view of the fact that on August 3, 1993, Judge Lowry sent a letter to the parties indicating that he believes Graham is entitled to a clemency hearing.
[19] It is interesting to note that in Wilson itself, the Court did not rely on the language of exclusiveness in former Article 119, supra, now Article 11.07, ง 3, supra, as the reason we were compelled to step in to protect our habeas corpus jurisdiction. In Wilson we had already exercised our habeas corpus jurisdiction, and exercised our mandamus power to protect our judgments already rendered on habeas corpus.
[20] Indeed, he does not claim his capital murder conviction is even voidable, much less void. See Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App. 1989).
[21] This question of whether a habeas corpus applicant is raising a claim that, if decided in his favor, will result in his discharge should not be confused with the question of "mootness"โ whether post-conviction habeas corpus is available to assail a final felony conviction for which the applicant is no longer confined. We have held that an applicant may attack the validity of a former final felony conviction under Article 11.07, supra, even if he is not currently confined as a result of that conviction, so long as he is in fact "confined" on some other offense and the former conviction may have collateral adverse consequences. See Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App.1987). If he is not confined, he may still pursue the writ of habeas corpus, but it will not be returnable to this Court under Article 11.07, supra. Id. But whether currently confined or not, the applicant is attacking the validity of a final conviction, from which, if he is correct, he will be discharged. In his suit in Judge Lowry's court, Graham does not seek a discharge from his conviction. Were Graham to apply to this Court for a post-conviction writ of habeas corpus to order the Board to hold a clemency hearing, he would not be seeking a discharge from his conviction here either.
[22] In Alegria, the Court wrote:
"At the outset it may well be questioned whether this court possesses jurisdiction to dispose of the question raised by virtue of the habeas corpus writ as petitioner does not seek outright release or discharge but only a determination of his eligibility for parole. Under former holdings of this court, i.e., Ex parte Rios, Tex.Cr.App., 385 S.W.2d 677, whose underpinning was McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238, a serious question might well be presented. However, the doctrine of McNally v. Hill, supra, was laid to rest with proper respect by the decision of Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426."
See also Ex parte Easley, 490 S.W.2d 570 (Tex. Cr.App.1972); Ex parte Weaver, 537 S.W.2d 252 (Tex.Cr.App.1976). In Ex parte Rios, supra, this Court had relied on McNally merely as persuasive authority for the proposition that habeas corpus will lie only to determine questions germane to the lawfulness of the custody of the applicant. Subsequently, in Peyton, the United States Supreme Court held that a claim for immediate discharge was no longer a prerequisite to habeas corpus relief pursuant to 28 U.S.C. ง 2241(c)(3), overruling its earlier decision in McNally. When it comes to state habeas corpus jurisprudence, however, Peyton was no more binding authority on this Court than McNally had been. See Ex parte Crispen, supra (Clinton, J., concurring). Before expanding the reach of post-conviction habeas corpus so substantially in Alegria, it would have been well for the Court to examine the opinion in Peyton critically to determine whether it should be followed in Texas.
[23] The Court has also ordered the Board to hold particular kinds of hearings in the past, under Article 11.07, supra. See Ex parte Maceyra, 690 S.W.2d 572 (Tex.Cr.App.1985); Ex parte Glenn, 690 S.W.2d 578 (Tex.Cr.App.1985); Ex parte Johnson, 690 S.W.2d 585 (Tex.Cr.App.1985); Ex parte Williams, 738 S.W.2d 257 (Tex.Cr.App. 1987); Ex parte Martinez, 742 S.W.2d 289 (Tex. Cr.App.1987). In all of these cases the Court held, first for statutory, and later for constitutional reasons, that the Board cannot administratively revoke parole on the basis of nothing more than evidence of a subsequent conviction. Instead, the Board must hold a hearing to allow ventilation of reasons it might choose to exercise its discretion not to revoke parole in spite of the subsequent conviction. In each case, however, the applicant was discharged from actual custody of the Department of Corrections, at least to the extent that his custody stemmed from the revocation of his parole rather than his subsequent conviction.
[24] This is not to say that the Court did not entertain claims under former Art. 119 that an inmate, e.g., had been denied good time credits. We entertained those claims pursuant to a statutory scheme, however, by which good time credits operated to earn the inmate actual commutation of his sentence, and granted habeas relief only if, given the good time allegedly deprived the inmate, he would be entitled to be discharged from the penitentiary. E.g., Ex parte Anderson, 149 Tex. Crim. 139, 192 S.W.2d 280 (1946); Ex parte Baird, 154 Tex. Crim. 508, 228 S.W.2d 511 (1950).
[25] Graham seeks neither "immediate" nor a "speedier" discharge from the judgment and sentence against him. His lawsuit does not attack "the fact or duration of his confinement." Therefore, not even the federal analog suggests that habeas corpus should be the exclusive remedy. Preiser v. Rodriguez, supra, 411 U.S. at 500, 93 S.Ct. at 1841, 36 L. Ed. 2d at 456. See also Gerstein v. Pugh, 420 U.S. 103, at 107, n. 6, 95 S. Ct. 854, at 859, n. 6, 43 L. Ed. 2d 54, at 61, n. 6 (1975).
[26] The majority decides that a claim of actual innocence is cognizable in an application for post-conviction habeas corpus under Article 11.07, supra, because it raises a claim under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. It should be noted that in his suit for declaratory judgment relief in Judge Lowry's court, Graham studiously avoided any reliance whatsoever on the federal constitution. Thus, the majority not only manufactures an issue not raised in the civil lawsuit, it resolves that manufactured issue according to authority not invoked in that lawsuit. I suspect the Court must base its advisory holding on the Fourteenth Amendment in order to avoid the obstacle that a claim that a conviction is flawed under the Texas Constitution is not cognizable in habeas corpus under Article 11.07 unless the defect renders the conviction void. See Ex parte Truong, 770 S.W.2d 810 (Tex.Cr. App.1989).
[27] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386075/ | 695 F. Supp. 2d 978 (2010)
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff,
v.
Jane JONES et al., Defendants.
No. CV 09-291-PHX-NVW.
United States District Court, D. Arizona.
February 22, 2010.
*979 Kurt M. Zitzer, Robert Anthony Justman, Meagher & Geer PLLP, Scottsdale, AZ, for Plaintiff.
ORDER
NEIL V. WAKE, District Judge.
Pending before the Court are Plaintiff Nationwide Mutual Fire Insurance Company's (Nationwide) Motion for Summary Judgment (doc. # 26) and Defendant Kathleen Knapp's Cross Motion for Summary Judgment (doc. # 33). Defendant Jessica Roberts and Nationwide have entered into a stipulation in which Roberts agreed to be bound by the Court's ruling in this action. (Doc. # 15).
I. Undisputed Facts
In 2006, Jane Jones, Kathleen Knapp, and Jessica Roberts worked in the Chandler-West branch of Chase Bank. That year, the bank met its third quarter financial goals and the bank manager decided to throw a "Campaign Party" for bank employees. Without being asked, Jones, who worked part-time at the bank, volunteered *980 to have the party at her home. A flier distributed to bank employees announced that the Campaign Party was set for October 21, 2006, and that it was being held "because we finished last Campaign at 109% and we're going to do it again!" The Bank did not pay for any of the expenses associated with the party.
The party was held on October 21, 2006, in Jones's residence, located at 13618 South 32nd Street, Phoenix, AZ 85044. Sometime during the course of the evening, Jones mentioned that she had recently purchased an all-terrain vehicle (ATV) and offered to allow her guests ride it. Jones moved the ATV to South 32nd Street, which is a public street, and her guests took turns riding the ATV on that street and around the cul-de-sac in front of her house.
Roberts and Knapp decided to ride the ATV together. Jones moved the ATV onto South 32nd Street for them. Roberts took the driver's seat and Knapp sat behind her. They took off on South 32nd Street, heading straight across the cul-de-sac. When they reached the far side of the cul-de-sac, Roberts turned hard and the ATV flipped. Roberts and Knapp both hit the pavement on South 32nd Street and were seriously injured.
On October 17, 2008, Knapp filed a complaint against Jones and Roberts in Arizona Superior Court for Maricopa County. She alleged that Roberts and Jones negligently caused the ATV accident. On October 20, 2008, Roberts also filed a Complaint against Jones in Arizona Superior Court for Maricopa County, in which she alleged that Jones was liable for her injuries.
At the time of the accident, the ATV was covered by a policy issued by AIG National Insurance Company (AIG). That policy provided Jones with liability coverage in the amount of $100,000 per person, $300,000 per accident. On October 20, 2008, AIG negotiated a "full and final release" and covenant not to execute with Knapp in favor of Jones. In exchange for the policy limit of $100,000, Knapp agreed to release Jones and AIG from liability for the accident and to not execute against Jones's personal assets.
Jones also had a homeowner's policy with Nationwide that was in effect at the time of the accident with a liability limit of $500,000. On November 7, 2008, Nationwide agreed to provide Jones a defense under reservation of rights against the suits brought by Knapp and Roberts.
The Nationwide policy contains a motor vehicle exclusion, which provides in relevant part:
Coverage EPersonal Liability and Coverage FMedical Payments to Others do not apply to bodily injury or property damage:
* * *
g) arising out of the ownership, maintenance or use of, or loading or unloading of; entrustment or the negligent supervision by an insured of; or statutorily imposed liability on an insured related to the use of:
(1) an aircraft;
(2) a motor vehicle or all other motorized land conveyance owned by or operated by, or rented or loaned to an insured.
This exclusion 1.g) (2) does not apply to:
(a) a vehicle owned by an insured and designed for recreation off public roads while on an insured location.
The policy defines "insured location" as:
a. the residence premises
b. the part of any other premises, structures, and grounds used by you as a residence and shown in the policy; *981 also any of these acquired by you during the policy period for your use as a residence.
c. premises you use with premises defined in 5. a) or 5. b)
The Nationwide policy also has a business pursuits exclusion, which provides in relevant part:
Coverage EPersonal Liability and Coverage FMedical Payments to Others do not apply to bodily injury or property damage:
* * *
c) arising out of business pursuits of an insured.
This exclusion 1. c) does not apply to:
(1) activities normally considered not business.
(2) occasional part time self-employed business pursuits of an insured under the age of 19 years old (age 23 if a full time student)
(3) an office, school, studio, barber or beauty shop on the residence if noted on the Declarations.
(4) home care services provided by or at the direction of an insured on or from the residence premises if noted on the Declarations.
The policy defines the term "business" as:
"BUSINESS" includes trade, profession, occupation, or employment including self-employment, performed on a full-time, part-time, or temporary basis. Business also includes any occasional business pursuits of an insured, including ownership of rental property. It includes home car services regularly provided to a person or persons other than insureds or insureds' relatives, for which there is monetary or other compensation. A mutual exchange of home care services is not considered compensation. Exceptions if any are noted on the Declarations.
II. Standard of Review
Summary judgment should be granted if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court presumes that the nonmoving party's evidence is true and draws all inferences from the evidence in favor of the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987).
The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S. Ct. 2505. Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
III. Analysis
A. Recreational Vehicle Exception
Both Nationwide and Knapp have moved for summary judgment on the issue *982 of whether the motor vehicle exclusion in the policy bars coverage. The parties do not dispute that the motor vehicle exclusion applies, but contest whether the exception to the motor vehicle exclusion requires Nationwide to afford coverage. The insurer has the burden of showing that a policy exclusion applies, but the insured has the burden to show that his claim falls within an exception to that exclusionary clause. Hudnell v. Allstate Ins. Co., 190 Ariz. 52, 54, 945 P.2d 363, 365 (Ct.App.1997). Thus, Knapp has the burden of showing that her claim falls within the exception to the motor vehicle exclusion.
The Nationwide policy provides that coverage does not apply to bodily injury or property damage arising out of the use of a motor vehicle except for "a vehicle owned by an insured and designed for recreation off public roads while on an insured location." (emphasis added). "Insured location" is defined, in relevant part, as "a premises you use with the premises defined in 5. a) or 5. b)," where 5. a) is defined as "the residence premises," and 5. b) is defined as "the part of any other premises, structures, and grounds used by you as a residence and shown in the policy; also any of these acquired by you during the policy period for your use as a residence." (emphasis added). Thus, Knapp is covered if the cul-de-sac where the accident occurred is "a premises" that was "use[d] with" Jones's home.
Hudnell v. Allstate Insurance Company, is directly on point. In Hudnell, the insured was test driving his all-purpose dirt bike after having made repairs to it on his driveway and collided with the plaintiff on an "unpaved, public street a short distance" from the insured's home. Id. at 53, 945 P.2d at 364. The plaintiff sued under the insured's homeowner's policy which did not cover motor vehicles but contained an exception for "any motor vehicle designed principally for recreational use off public roads, unless that vehicle is owned by an insured person and is being used away from an insured premises." Id. at 54, 945 P.2d at 365 (emphasis added). The policy defined "insured premises" as "any premises used by an insured person in connection with the residence premises." Id. (emphasis added). "Residence premises" included only "the dwelling, other structures and land located at the address stated on the policy declarations." Id.
The dirt bike was found to be a "recreational vehicle designed principally for recreational use off public roads;" however, the public street where the accident occurred was found not to be a "premises used by an insured person in connection with the residence premises." Id. The language "premises used ... in connection with the residence premises" did not categorically exclude public streets. Id. at 55, 945 P.2d at 366. However, the court explained that the purpose of a vehicle exclusion in a homeowner's policy was to require an insured to obtain specific liability insurance on motor vehicles except under the limited exceptions enumerated in the policy. Id. Because the policy expressly limited coverage to vehicles "not intended for use on public roads," and the dirt bike was being used on a public road, the policy did not afford coverage. Id. at 56, 945 P.2d at 367. To find otherwise would have rendered the exception meaningless. Id.
The motor vehicle exclusion in Jones's policy is remarkably similar to the one in Hudnell. Knapp nevertheless argues that a different result is warranted. She contends that the regular use of and proximity to the insured residence determines whether the location in which an accident occurred is "used with" or "used in connection with" the premises, and that coverage is not barred merely because the accident occurred on a public street.
*983 A number of out-of-state cases suggest that regular use and proximity to the residence generally determines whether a location is "used with" or "used in connection with" a premises. See State Farm Fire & Cas. Co. v. MacDonald, 2004 PA Super. 161, 850 A.2d 707 (Super.Ct.2004) (regular use of field adjacent to residence was sufficient to satisfy use "in connection with" requirement in the homeowner's policy); Nationwide Mut. Ins. Co. v. Prevatte, 108 N.C.App. 152, 156-57, 423 S.E.2d 90, 92-93 (Ct.App.1992) (regular use for walking and riding of a trail which began on the insured's property and ended in a neighbor's property was sufficient to satisfy "in connection with" requirement in the homeowner's policy); Royal Indem. Co. v. King, 512 F. Supp. 2d 117, 125-27 (D.Conn.2007) (evidence of actual use of road for more than ingress and egress was required to satisfy the use "in connection with" requirement in the homeowner's policy); Safeco Ins. Co. of Am. v. Clifford, 896 F. Supp. 1032, 1036 (D.Or.1995) (use "in connection with" requirement in homeowner's policy not satisfied where plaintiff failed to show that adjacent property was used "routinely in [a] manner connected with the insured property"); Mason v. Allstate Ins. Co., 298 Ga.App. 308, 680 S.E.2d 168 (Ct.App.2009) (use "in connection with" requirement in homeowner's policy not satisfied where accident occurred on a field located 15 miles from insured's home).
Hudnell is not to the contrary. The court in Hudnell approvingly explained that in other jurisdictions, "to determine if the insured premises included the injury site, the courts generally focused on the location of the accident, rather than whether it was a public area." Hudnell, 190 Ariz. at 55, 945 P.2d at 366. Moreover, the court explicitly stated that none of the out-of-state cases it had considered "denied coverage solely because the accident occurred on a public street, nor did they hold that premises `used in connection with' residence premises could not include a public street." Id. Nevertheless, the court found that there was no coverage under the motor vehicle exclusion in the homeowner's policy because the accident occurred on a public street near the insured's home. Id. at 56, 945 P.2d at 367.
Knapp attempts to distinguish Hudnell on the ground that, whereas the plaintiff in Hudnell was struck "some distance" from the residence premises, the accident here occurred on the cul-de-sac next to Jones's house. See id. at 54, 945 P.2d at 365. Knapp also argues that Jones regularly used her cul-de-sac for personal purposes and for riding her ATV. Therefore, Knapp contends that she satisfies the regular use and proximity test used by other jurisdictions.
However, while Hudnell did not reject the regular use and proximity test, the court did not apply it to the facts presented in that case. The court did not focus upon the proximity of the site of the accident to the insured's home. At one point, the court stated that the plaintiff was injured "some distance from the `residence premises.'" Id. However, later the court explained that the trial court had found that "[the insured] used a portion of the adjoining street ... when he took the dirt bike for a test drive." Id. at 55, 945 P.2d at 366 (emphasis added). There is also no discussion in Hudnell concerning whether the insured regularly used the location where the accident occurred. See id.
What was decisive in Hudnell was that to require the insurer to afford coverage would have been antithetical to the purpose of the motor vehicle exclusion. An accident that occurred on a public street was not covered, not because the street was "public" in nature, but because "the purpose of a vehicle exclusion in a homeowner's policy is to require the insured to *984 obtain specific liability insurance on motor vehicles except under the limited exceptions enumerated in the policy." Id. When a recreational vehicle not intended for use on public roads is used on a public street, the risk to the insurer is the same (or perhaps greater) than if an ordinary car were being insured. To require the insurer to cover a recreational vehicle that was being used on a public street would have "blur[red] the distinction between homeowner's and automobile insurance, and rendered the exception limiting coverage to vehicles not intended for use on public roads `meaningless.'" Id. at 56, 945 P.2d at 367.
It is not surprising, therefore, that there appear to be no cases in which an accident occurred on a public road or on a private road accessible to the general public that have found coverage under a homeowner's policy with an exclusion similar to the one here. See Nationwide Mut. Ins. Co. v. Gardner, 79 Pa. D. & C.4th 150, 162-65 (C.C.P. Huntingdon County 2006) (used "in connection with" requirement not satisfied where ATV accident occurred on a public road because the policy intended to cover vehicles designed for recreation off public roads and in Pennsylvania it was unlawful to use such vehicles on public roads); Ind. Ins. Co. v. Dreiman, 804 N.E.2d 815, 818-21 (Ind.Ct.App.2004) ("premises used by you in conjunction with" requirement not satisfied where the insured was riding a motorcycle on a public highway because the plain and ordinary meaning of the term premises does not encompass public roadways and because the policy excluded coverage for recreational vehicles intended for use off public roads); Shelter Mut. Ins. Co. v. Davis, No. 6-072/05-0456, 2006 WL 929239, at *6, 2006 Iowa App. LEXIS 327, at *17 (Iowa Ct.App. Apr. 12, 2006) (no coverage where policy limited coverage to vehicles "designed for recreational use off public roads" and street where accident occurred was privately owned but nonetheless accessible to the general public); United Servs. Auto. Ass'n v. Parry, 158 Ariz. 83, 84-85, 761 P.2d 157, 159-160 (Ct. App. 1988) (used "in connection with" requirement not satisfied where accident occurred on private road accessible to all members of a subdivision); Prevatte, 108 N.C.App. at 157, 423 S.E.2d at 93 (used "in connection with" requirement was satisfied where accident occurred on private trail in neighbor's property and distinguishing prior case that found no coverage for accident that occurred on a public road on the ground that a public road could not be considered an "insured location"); Sheldon v. Zimmerman, No. 246053, 2004 WL 1636575, at *1-2, 2004 Mich.App. LEXIS 1989, at *2-5 (Mich.Ct.App. Jul. 22, 2004) (no coverage where accident occurred on a public road a short distance from insured's property because the ordinary meaning of the term "premises," although not defined in the policy, excluded public roads).
The only cases that possibly suggest a different outcome are from Pennsylvania, but even those cases involved accidents that occurred on private paths not used by the general public. In Farmers New Century Insurance Company v. Angerson, No. 4:04-cv-2608, 2008 WL 238622, at *10-15, 2008 U.S. Dist. LEXIS 4463, at *27-41, (M.D.Pa. Jan. 22, 2008), the court found that the used "in connection with" requirement was satisfied where an ATV accident occurred on a wooded path near the main road about three-tenths of a mile from the insured's home. Id. The court, however, explicitly distinguished Gardner, where coverage was denied, explaining that in Gardner the accident had occurred on a public road whereas in Angerson the accident occurred "off the road." Id. The distinction was significant because Gardner concluded that the definition of insured location was not broad enough to encompass public roads, in part, because it was unlawful in Pennsylvania to operate an *985 ATV on public roads not designated and posted as ATV roads. Id. In Allstate Insurance Company v. Drumheller, 185 Fed. Appx. 152, 158-59 (3d Cir.2006), the use "in connection with" requirement was satisfied where the insured was operating an ATV on a trail located in a neighbor's property. The court held that "in connection with" meant the repeated use of the ATV emanating and returning to the insured's residence. Id. Drumheller, however, is distinguishable from the instant case because it involved a path located on private property and not a public road. Because the use of public roads was not at issue in these cases, requiring the insurer to provide coverage would not have risked transforming the homeowner's policy into a general automobile liability policy.
Knapp's contention that the accident on the public cul-de-sac in front of Jones's house should be covered cannot be squared with the case law. There is no persuasive distinction between the public cul-de-sac in front of Jones's house and an ordinary public street. Finding that the policy affords coverage would increase risk to Nationwide beyond that which it assumed when it issued the policy, and would appear to "blur[ ] the distinction between homeowner's and automobile insurance." See Hudnell, 190 Ariz. at 56, 945 P.2d at 367. Therefore, the exception to the motor vehicle exclusion does not apply, and the policy does not afford coverage for the accident.
B. Business Pursuit Exclusion
Both parties have moved for summary judgment on the issue of whether the business pursuits exclusion precludes coverage. Nationwide contends that the party held by Jones was a "business pursuit" because it was scheduled by the bank manager to reward bank employees for their satisfaction of the bank's third quarter financial goals and because the purpose of the party was to encourage bank employees to be productive. Nationwide additionally states, and Knapp contests, that the party was more "functional" than simply a group of coworkers having a party, that attendance to the party was not strictly voluntary because employees were strongly encouraged to attend, that prior to the party, Jones had never socialized with any employees of the Bank outside of bank hours, and that the bank manager gave a pep-talk during the party.
The business pursuits exclusion does not preclude coverage, even admitting Nationwide's additional facts as true. "`[B]usiness pursuits' denotes `a continued or regular activity for the purpose of earning a livelihood such as a trade, profession, or occupation, or a commercial activity.'" Indus. Indem. Co. v. Goettl, 138 Ariz. 315, 318-19, 674 P.2d 869, 872-73 (Ct.App.1983). Both regularity and the profit motive must be present for an activity to constitute a business pursuit. See id. Thus, in Industrial Indemnity Company v. Goettl, a man fell through the roof of a warehouse built and sold by the defendant, who had a homeowner's policy that included a business pursuits exclusion. Id. at 317, 674 P.2d at 871. Because the warehouse was an "integral part" of the operations of the business in which the defendant actively participated as a plant manager and vice-president, the policy's business pursuits exclusion applied. Id. at 319, 674 P.2d at 873. See also Kepner v. Western Fire Ins. Co., 109 Ariz. 329, 330, 509 P.2d 222, 223 (1973) (business pursuit exclusion in homeowner's policy barred coverage where carport was being enclosed for use as an office for pool service business).
By having the party, Jones was not engaging in a "continued or regular activity" involving a business activity in her home. According to Nationwide, Jones had never before even socialized with her coworkers *986 outside of bank hours. For Jones, who volunteered to have the party in her home, the party was an isolated occurrence and not a regular activity. Moreover, the profit motive, if present, was attenuated. Jones was not being paid to have the party in her home. No one asked her to have the party in her home. Even assuming that the bank manager gave a pep-talk at the party, and that bank employees felt pressure to attend, the profit motive is weak, if at all present.
In a low premium homeowner policy, "certain risks are specifically excluded because they are not embraced within the course of a homeowner's normal activities." Id. at 330, 509 P.2d at 223. Business activities are usually excluded from coverage because they "present additional risks over and beyond the ordinary and usual hazards to be found in the operation and maintenance of a home." Id. Here, however, Jones did not incur in any "additional risk over and beyond the ordinary and usual hazards" of maintaining a home. Nationwide does not contend that it did not assume the risk associated with Jones having a social get-together at her house when it issued the policy. There is no persuasive distinction between the risk attendant to having a one-time party for neighbors and friends and having a one-time party for co-workers.
Nationwide directs the Court's attention to West American Insurance Company v. California Mutual Insurance Company, 195 Cal. App. 3d 314, 240 Cal. Rptr. 540 (Ct. App.1987). In that case, the homeowner operated a cement and masonry business out of his home, and his employees were required to come to the home every week to get their paychecks. Id. at 317-18, 240 Cal. Rptr. at 541. Sometimes they would remain after being paid and would play pool and drink beers. Id. The court ruled that the business pursuits exclusion of the homeowner's policy barred coverage for an incident that occurred while the employees were socializing after being paid. Id. at 324-25, 240 Cal. Rptr. at 545-46. In West American, both regularity and the profit motive were present-the owner of the home and business ultimately profited from having his employees come regularly to his home to pick up their paychecks and socialize with each other. See id. Here, in contrast, Jones had a party for her coworkers on a single occasion, where the profit to her was tenuous, at best. The business pursuit exclusion therefore does not apply to bar coverage.
C. Attorneys' Fees
Nationwide has asked the Court to assess attorneys' fees against Knapp. Under Arizona law, "[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees." A.R.S. § 12-341.01(A). The trial court has discretion in awarding attorneys' fees and can consider, among other factors: (1) the merits of the unsuccessful party's claim, (2) whether the successful party's efforts were completely superfluous in achieving the ultimate result, (3) whether assessing fees against the unsuccessful party would cause extreme hardship, (4) whether the successful party prevailed with respect to all relief sought, (5) whether the legal question presented was novel or had been previously adjudicated, and (6) whether a fee award would discourage other parties with tenable claims from litigating. Assoc. Indemn. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985); see Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1319-20 (9th Cir.1997) (applying the factors). No single factor can be determinative and the court is to weigh all of the factors in exercising its discretion. Wilcox v. Waldman, 154 Ariz. 532, 538, 744 P.2d 444, 450 (Ct.App.1987).
*987 Nationwide is the prevailing party in this action, but the factors weigh against awarding it attorneys' fees. Knapp had a colorable claim that the exclusion to the motor vehicle exception applied. While Nationwide's efforts were not superfluous in achieving the ultimate result, assessing fees against Knapp would likely cause substantial hardship, especially in light of the damages she has already suffered as a result of the accident. Nationwide ultimately need not provide coverage under the policy or a defense to Jones, however, the legal questions presented were relatively novel in light of the facts. Finally, assessing attorney's fees against an insured who has already suffered a substantial loss would tend to discourage other insureds with tenable claims from litigating. Therefore, the Court will exercise its discretion to deny attorneys' fees to Nationwide.
IT IS THEREFORE ORDERED that Plaintiff Nationwide's Motion for Summary Judgment (doc. #26) is Granted to the extent provided herein.
IT IS FURTHER ORDERED that Defendant Knapp's Motion for Summary Judgment (doc. #33) is Denied to the extent provided herein.
Declaratory Judgment in favor of Plaintiff is entered by separate document. The Clerk shall terminate this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386085/ | 121 N.H. 501 (1981)
DERRY SAND & GRAVEL, INC. & a.
v.
TOWN OF LONDONDERRY
No. 80-194.
Supreme Court of New Hampshire.
June 12, 1981.
*502 Sheehan, Phinney, Bass & Green, of Manchester (James E. Higgins on the brief and orally), for the plaintiffs.
Richard F. Therrien, of Manchester, by brief and orally, for the defendant.
DOUGLAS, J.
The plaintiffs, Derry Sand & Gravel, Inc., and Grassy Knoll Associates, appeal from an order of the superior court requiring Grassy Knoll Associates to comply with the Londonderry dump ordinance before operating a private disposal site on a 200-acre tract of land in that town. We affirm the order of the trial court.
The 200-acre tract of land in question was originally a farm owned by the Thomopoulos family. From 1964 to 1979, George Thomopoulos operated a public dump on a five-acre section of the tract in accordance with an agreement with the town. Thomopoulos later formed Derry Sand and Gravel, Inc., with himself as sole stockholder and the land as the principal asset of the corporation. In 1978, Peter Johnson of Grassy Knoll Associates negotiated with Thomopoulos to purchase all of the stock of Derry Sand & Gravel, Inc. Grassy Knoll Associates planned to establish a private disposal site on the land.
RSA 147:30-b prohibits the operation of a private disposal site unless the operator first obtains the approval of the town selectmen *503 and the State under RSA 147:30-d IV. Seeking to obtain the required town approval, Johnson attended a meeting of the Londonderry Board of Selectmen on March 9, 1979. In executive session, Johnson explained his plans to the board and presented them with a draft letter granting approval under RSA 147:30-d IV. After a cursory examination and brief discussion of the terms of the letter, the selectmen approved it and sent it out over their signatures on March 13, 1979. Although the letter approves the entire 200-acre tract as a private disposal site, the minutes of the executive session indicate that the parties actually agreed that operation of the facility would be limited to its current use as a public dump on five acres of the tract.
In June 1979, Grassy Knoll Associates purchased the stock of Derry Sand & Gravel, Inc. and began to proceed with its plans to open a private disposal site, but a dispute arose with the town over the operation of the facility. The town asserted that although Grassy Knoll Associates had received an RSA 147:30-d letter it had not complied with the town's dump ordinance and therefore would not be allowed to operate the private disposal site until it had done so. Additionally, the town informed Grassy Knoll Associates that it considered the selectmen's March 13, 1979, letter giving approval under RSA 147:30-d to operate a private disposal site to be invalid.
Derry Sand & Gravel, Inc. and Grassy Knoll Associates brought a petition to enjoin the town from interfering with the operation of a private disposal site and a petition for a declaratory judgment on the validity of the selectmen's March 13, 1979, letter of approval. After a trial, the Master (Charles T. Gallagher, Esq.) ruled that the selectmen's March 13, 1979, letter of approval under RSA 147:30-d was valid and binding on the town, but that the plaintiffs had to comply with the town's dump ordinance before operating the private disposal site. Accordingly, he recommended a decree dismissing the petition for injunction. The Superior Court (Temple, J.) entered a decree in accordance with the master's recommendation. The plaintiffs appeal from the determination that they are required to comply with the town dump ordinance. The town did not appeal from the ruling that the RSA 147:30-d letter was valid.
[1-3] The plaintiffs first argue that RSA 147:30-a to -d preempts the Londonderry dump ordinance. A State statute preempts a local ordinance when the legislature clearly manifests an intent to do so or when the statute and ordinance conflict. Public Serv. Co. v. Town of Hampton, 120 N.H. 68, 71, 411 A.2d 164, 166 (1980); Lavallee v. Britt, 118 N.H. 131, 134, 383 A.2d 709, 711-12 *504 (1978); State v. Hutchins, 117 N.H. 924, 926, 380 A.2d 257, 258 (1977); see Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885, 888, 424 A.2d 207, 209 (1980). RSA 147:30-d provides:
"Nothing in this subdivision shall be construed to prohibit the maintenance of a dump site located on a person's own property ...
IV. As a private disposal site if upon application to the selectmen it is not found that it will probably constitute a nuisance or be injurious to the public interest and provided that it shall be approved by the department of public health and operated subject to all rules and regulations promulgated under RSA 147:28."
(Emphasis added.) By requiring local approval of a disposal site as well as State approval, the legislature has not manifested an intent to preempt local regulation but rather has expressly provided for it. If the selectmen do not approve an application for a site, then it will not be built in their town. Although the statute does not specify a mechanism by which selectmen may determine whether a facility will be a nuisance or "injurious to the public interest," town by-laws such as the Londonderry dump ordinance would normally establish such a procedure. Thus, local regulations play an important part in the statutory scheme and do not conflict with the statute. Londonderry's dump ordinance, if not otherwise unreasonable, may operate consistently with RSA 147:30-d IV. See Lavallee v. Britt supra.
The next issue the plaintiffs raise concerns the reasonableness of the dump ordinance itself. They argue that the ordinance is unconstitutionally vague because it fails to provide standards governing the selectmen's decision to issue a license to operate a private dump. Londonderry's dump ordinance provides:
"A. PURPOSE.
To provide for orderly, sanitary and reasonable provisions for the disposal of garbage and waste in the Town of Londonderry, New Hampshire.
...
"C. PRIVATE DUMPS.
No private dump or junk yard as defined by statute or the provisions of this ordinance, which ever is more restrictive shall be maintained within the Town of Londonderry except by license issued by the Board of Selectmen, after a public hearing at which time good *505 cause and sufficient reason must be shown, justifying, in the opinion of the Selectmen, the issuance of such a license."
[4-6] We will not strike down an ordinance as unconstitutionally vague simply because it does not precisely apprise an applicant of the standards by which the selectmen will make their decision. Durant v. Town of Dunbarton, 121 N.H. 352, 355, 430 A.2d 140, 143 (1981); Town of Freedom v. Gillespie, 120 N.H. 576, 580, 419 A.2d 1090, 1092 (1980); see Carbonneau v. Town of Rye, 120 N.H 96, 98, 411 A.2d 1110, 1112 (1980). The standards set out in the dump ordinance are that the selectmen may issue a license for "good cause and sufficient reason." This court has long recognized that those terms provide adequate criteria to guide a governmental body, such as a board of selectmen, in the exercise of its discretion. See Thompson v. Phillips Exeter Academy, 105 N.H. 153, 156-57, 196 A.2d 42, 45 (1963); Bretton Woods Co. v. Carroll, 84 N.H. 428, 432, 151 A. 705, 707 (1930); Whitcher v. Benton, 50 N.H. 25, 27 (1870). In this case, the ordinance contains a statement of purpose which further defines the terms of the ordinance. See Smith Insurance, Inc. v. The Grievance Committee, 120 N.H. 856, 861, 424 A.2d 816, 818-19 (1980). "Good cause and sufficient reason" are any circumstances that further the ordinance's stated goals of establishing provisions for the "orderly" and "sanitary" disposal of garbage and waste in the town. While not a model to be emulated, we do find the ordinance adequate to inform an applicant of what facts he must establish in order to obtain a license.
[7, 8] The plaintiffs' final argument is that the dump ordinance was invalidly adopted under RSA 31:39 (Supp. 1979) because it regulates the use of land and, therefore, could only have been validly enacted pursuant to the procedures set forth in RSA 31:60 to :89. RSA 31:39 (Supp. 1979) permits towns to make by-laws "respecting the collection, removal and destruction of garbage, snow and other waste materials . . . and for making and ordering their prudential affairs." See generally Girard v. Town of Allenstown, 121 N.H. 268, 271, 428 A.2d 488, 490 (1981). The first provision authorizes enactment of an ordinance such as the one in question. Additionally, this court has interpreted that statute to afford towns wide, but not unlimited, latitude in making by-laws "which generally fall into the category of health, welfare, and safety" without following the provisions for adopting zoning regulations established by RSA 31:60 to :89. Beck v. Town of Raymond, 118 N.H. 793, 797-98, 394 A.2d 847, 850 (1978) (and cases cited therein). *506 The regulation of the disposal of garbage and waste falls within that category. "Quite obviously, the expeditious removal and disposal of waste substances are essential to protect against health menaces, danger of fire, and offensive and unwholesome smells." 7 E. MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 24.242 (3d ed. rev. 1968); see State v. Cohen, 73 N.H. 543, 545, 63 A. 928, 929 (1906). Although a dump regulation such as the one in this case may incidentally affect the use of land, that fact does not make it a zoning regulation. Such an incidental effect on the use of land is not "comprehensive" enough to require that the ordinance be adopted pursuant to RSA 31:60 to :89. See Beck v. Town of Raymond, 118 N.H. at 798-99, 394 A.2d at 850-51.
[9, 10] We hold that the Londonderry dump ordinance is valid and not preempted by RSA 147:30-d IV. Local review of disposal sites is an essential part of the statutory scheme. Because the plaintiffs in this case have not complied with the local dump ordinance, the master was correct in ordering them to do so.
[11] We note, however, that the actions of the town selectmen in this case were not of the type envisioned by the statute. Selectmen should make a careful inquiry to determine whether a site would constitute a nuisance or "be injurious to the public interest" before giving approval. Ordinarily, that determination would require that the proper procedures set out in local ordinances be followed.
Affirmed.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386088/ | 494 Pa. 440 (1981)
431 A.2d 936
COMMONWEALTH of Pennsylvania
v.
Gary ROMAN, Appellant.
Supreme Court of Pennsylvania.
Submitted March 2, 1981.
Decided July 2, 1981.
*441 *442 Jesse E. Shearin, Jr., Greenville, for appellant.
Ross E. Cardas, Asst. Dist. Atty., Mercer, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
*443 OPINION OF THE COURT
O'BRIEN, Chief Justice.
This is an appeal from a denial of relief and dismissal of appellant's petition which was filed pursuant to the Post Conviction Hearing Act.[1]
On or about October 13, 1973, Mark Chancellor was shot through the heart and buried in a shallow grave in Mercer County, Pennsylvania. The victim had been seeking admission to the Breed Motorcycle Club, and arrived at a farm in Mercer County for an initiation. Apparently, an altercation developed between the victim and various members of the motorcycle gang and ended in Chancellor's death.
Appellant, Gary Roman, was charged in connection with the homicide, and was brought to trial on October 22, 1974, in Mercer County. A jury found him guilty of second degree murder. Following the denial of post-trial motions, the trial judge imposed a sentence of ten-to-twenty years.
Appellant's direct appeal resulted in a reversal of his judgment of sentence and remand for a new trial because of the admission at his first trial of prejudicial evidence. See Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). On retrial, appellant was convicted of second degree murder and was again sentenced to a term of imprisonment of ten-to-twenty years. Appellant perfected a direct appeal of that judgment of sentence to this Court where we dismissed all issues except one as being devoid of merit. We considered the remaining issue to be waived and affirmed the judgment of sentence. See Commonwealth v. Roman, 478 Pa. 619, 387 A.2d 661 (1978).
Thereupon, appellant filed a PCHA petition, which was later amended by court-appointed counsel. In his amended petition, appellant raised numerous issues, including four counts of ineffective assistance of counsel. Appellant limited testimony at an evidentiary hearing on October 25, 1979, to the ineffective assistance of counsel issues, thereby abandoning all other grounds for post-conviction relief. After *444 the submission of briefs, the hearing judge dismissed appellant's petition and denied relief. It is from that Order of July 28, 1980, that this appeal ensues.
Initially, appellant contends that trial counsel was ineffective for failing to file a petition to dismiss for a violation of Pa.R.Crim.P. 1100. This Rule, as we have reviewed innumerable times, mandates:
"(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.
"(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed."
Pa.R.Crim.P. 1100(a)(1) & (a)(2). If a case is not called to trial within the designated time period, and if the Commonwealth does not petition for an extension of time, a defendant may apply for an order dismissing the charges with prejudice. Pa.R.Crim.P. 1100(f). However, Rule 1100 provides for the extension of the time period in two ways. According to Pa.R.Crim.P. 1100(c):
"(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced."
In addition to a timely application for an extension of the time in which to commence trial, certain periods of delay are automatically excluded from the running of the time period under Pa.R.Crim.P. 1100(d)(1) and (2). These automatic *445 exclusions encompass any period of delay which results from the unavailability of the defendant or his attorney or that part of any defense continuance which exceeds thirty days.
Herein, the criminal complaint charging appellant with murder was filed on November 5, 1973, by the Pennsylvania State Police. Appellant, having left the Commonwealth shortly after Chancellor's death, was arrested in New Jersey on other charges on November 13, 1973. At the arraignment on the other charges, appellant was informed of the outstanding murder charges lodged against him in Pennsylvania. Appellant was incarcerated in New Jersey from November 13, 1973, until July 16, 1974, when he was sentenced on the charges for which he was imprisoned. The Pennsylvania authorities finally tried appellant in the instant case on October 22, 1974, 351 days after the complaint was filed.
In order to comply with the mandate of Rule 1100, appellant must have been brought to trial by August 2, 1974, 270 days from the filing of the complaint. The Commonwealth did not do so and did not file a petition seeking an extension of time in which to try appellant. The prosecution reasoned that the period of time during which appellant was incarcerated in New Jersey and under the control of the authorities there constituted ". . . such period of delay . . . as results from . . . the unavailability of the defendant . . .," Pa.R. Crim.P. 1100(d)(1), and was automatically excluded from the time period in which appellant had to be tried.
In order for time during which a defendant is incarcerated in another jurisdiction to be excluded pursuant to Pa.R.Crim.P. 1100(d)(1), the Commonwealth must prove by a preponderance of the evidence that, despite due diligence, the presence of the defendant could not be secured. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977).
A review of the record evinces a finding of due diligence by the Commonwealth in attempting to acquire *446 custody of appellant for prosecution in Pennsylvania. The District Attorney in Mercer County, Joseph J. Nelson, contacted the Deputy Secretary of the Commonwealth of Pennsylvania to initiate extradition proceedings on December 7, 1973. After several communications among the Deputy Secretary, Nelson, the Pennsylvania Bureau of Corrections, and appropriate New Jersey authorities, Nelson requested delivery of appellant to Pennsylvania authority pursuant to the Interstate Agreement on Detainers Act.[2] After denial of said request, Nelson contacted Governor William P. Cahill of New Jersey on behalf of Pennsylvania Governor Milton Shapp, again requesting delivery of appellant to Pennsylvania officials. A negative response from the Governor of New Jersey was received on February 19, 1974, reiterating their position that custody of appellant would not be transferred until the disposition of the charges against him. These prompt attempts by the Commonwealth to secure custody of appellant are more than enough evidence to establish due diligence by the Commonwealth. The time period in which the Commonwealth attempted to extradite appellant, December 7, 1973, until July 18, 1974, when the New Jersey authorities surrendered the appellant, was 223 days. When excluded from the 351 day period that ran between the filing of the complaint and the commencement of trial, it is obvious that appellant was tried well within the mandate of Pa.R.Crim.P. 1100(a)(1). Consequently, there was no meritorious Rule 1100 issue to be raised by trial counsel.
Appellant agrees that the current law in this Commonwealth would support a finding that he was unavailable for prosecution in Pennsylvania during the above-stated time. Further, he concedes that said period of delay would be automatically excluded from the running of his trial date. Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). However, appellant argues that at the time of his trial in October, 1974, the law concerning Pa.R.Crim.P. 1100(d)(1) was undeveloped and this section was subject to *447 interpretation. He therefore contends that his counsel could have, and should have, argued that such exclusions as provided in Pa.R.Crim.P. 1100(d)(1) required the filing of a petition for an extension of time by the Commonwealth. Appellant therefore claims that his trial counsel was ineffective for not advancing a position of arguable merit.
The standard of reviewing ineffectiveness claims is firmly established in this Commonwealth. When the reviewing court is able to demonstrate that a ". . . particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests . . ." then counsel's assistance must be considered constitutionally effective. Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 601, 235 A.2d 349, 352 (1967). Before we weigh the matter of the reasonable basis for counsel's action, or inaction, we must recall that:
"[b]ecause counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion." Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977), and cases cited therein.
Having duly considered appellant's argument, we reject it as non-meritorious. We do not concur in his belief that the language of Pa.R.Crim.P. 1100(d)(1) is subject to any interpretation. Section (c) states that a petition is necessary in order for the Commonwealth to receive an extension of time in which to commence trial. Section (d) clearly and unequivocally provides for the exclusion of certain periods of delay when determining the period for the commencement of trial. These statutory provisions are unambiguous and negate on their face any suggestion that the exclusions cited in section (d) are only granted upon the filing of a petition pursuant to section (c). Counsel will not be deemed ineffective for not pursuing fruitless gestures such as appellant proposed herein.
*448 Appellant cites as another basis for relief the ineffectiveness of trial counsel for advising him not to testify at the second trial. Employing the standard we have outlined above, we must seek some reasonable basis for the trial attorney's decision to recommend that his client remain silent. At the PCHA evidentiary hearing, trial counsel testified that while the ultimate decision to testify rested with appellant, he advised his client not to take the witness stand. This tactical decision was based on several factors. Appellant's testimony at the first trial was a matter of record and could serve as a tool of impeachment for the prosecutor if he deviated therefrom. Second, certain prejudicial evidence had been redacted by this Court in appellant's first direct appeal, thereby weakening the case against appellant in the opinion of trial counsel. Furthermore, by testifying, appellant would expose himself on cross-examination to several critical events which he observed, but which could not be supplied by the witnesses available to the Commonwealth.
After considering these reasons, we find that counsel's strategy in advising appellant not to testify had a reasonable basis which was designed to protect and advance his client's interests. Furthermore, we must be wary not to weigh the actual results of the trial strategy in attempting to determine if a reasonable basis existed for counsel's actions. As we have so often stated:
"[t]he test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." Com. ex rel. Washington v. Maroney, supra, 427 Pa. at 600, 235 A.2d at 353.
Appellant continues his attack on the stewardship of trial counsel by claiming that his representation at the time of sentencing was constitutionally infirm. Specifically, appellant complains that the presentence report upon which the sentencing judge relied was incomplete and inaccurate *449 and that counsel, at sentencing, failed to allude to these discrepancies and incompletions.
The presentence report is criticized by appellant in three respects: the report indicated appellant was arrested at different times for a drug violation, carrying a concealed weapon, and rape. While appellant does not deny that these arrests occurred, he complains that all of these charges were eventually dropped. The drug charge was dismissed for insufficient evidence and the "weapons" for which he was arrested were steak knives from gas station giveaways.
Counsel testified, in reference to this charge at the PCHA hearing, that he reviewed the report and discussed it with his client, who made no recommendations or suggested any changes or corrections.[3] A supplemental presentence report report from New Jersey stated that the rape charge and other related charges were dropped in exchange for a guilty plea to contributing to the delinquency of a minor. This fact was readily apparent to the sentencing judge and need not have been raised by trial counsel.
The sentencing judge stated in his opinion that he did not place any emphasis on these arrests; rather, he considered the serious nature of crime with which appellant stood convicted. While expounding upon the background and disposition of these arrests surely would not have hurt appellant, the lack of such explanation cannot be viewed as ineffective representation, particularly in light of appellant's numerous other arrests, the seriousness of his conviction, and the recommendations of the parole agents who prepared the presentence investigation that he should be incarcerated.
The final claim of ineffective representation concerns the failure of trial counsel to take exception to a specific comment made by the trial judge during an additional charge to the jury. In response to a question from the jury, the trial judge responded:
*450 "You're a big man physically, you're blocking the door, or at least you're at the doorway. They're going to take this man though, and they wonder what you're going to do, and if you are there, and you expose a gun, if that's what you do, that you had not had exposed before, it's possible that the participants could have encouragement to go forward with that conduct by what you are doing at that moment." (Tr. 221-222)
Appellant argues that the reference to himself as "blocking the doorway" was a material misstatement of fact to which trial counsel should have objected. Counsel did not do so; however, he did include this issue in post-trial motions. The trial judge rejected this issue as waived. Likewise, on appeal to this Court we considered this contention to be waived. Appellant now argues that by deeming it to be waived, we intimated that it was, in fact, meritorious. This is simply wrong. By considering an issue waived, we do not examine the merits at all.
We now view the issue to determine if it is, in fact, meritorious. The testimony of the main Commonwealth witness encompassed numerous descriptions of appellant's location in the kitchen. Undeniably, the evidence placed him near the only exterior door in the kitchen. Even so, the trial judge did admit in his opinion there was no evidence that he physically blocked the doorway. Nonetheless, we place equal emphasis on the comment the judge made immediately following the challenged phrase in the charge. The judge qualified the objectionable statement by saying ". . . or at least you're at the doorway . . ." Reading the charge as a whole, as we are bound to do, Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978), we conclude that the trial judge accurately reiterated the essential evidence of the case in a fair and impartial manner. Furthermore, the judge completed his charge by emphasizing:
"[y]ou are the finder's of fact. You determine what really happened down there that night."
We therefore conclude that no material misstatement of fact occurred. Rather, the jury was fully and properly charged. Consequently, any objections to the portion of the charge in *451 question would have been dismissed as lacking merit. As we stated previously, counsel need not protect himself from accusations of ineffectiveness by making every possible objection or motion when they are, in fact, meritless. In light of our above disposition of appellant's claims, we hereby deny the relief requested.
Order affirmed.
NOTES
[1] Act of January 25, 1966, P.L. 1580, 19 P.S. § 1180-1 et seq.
[2] Act of September 8, 1959, P.L. 829, § 1-8 (19 P.S. § 1431-38).
[3] The presentence reports states that appellant indicated the information contained therein was essentially complete and correct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386094/ | 121 N.H. 449 (1981)
NASHUA HOUSING AUTHORITY
v.
JACQUELINE TASSIE.
Nos. 80-256, 80-365.
Supreme Court of New Hampshire.
June 10, 1981.
Gall, Shapiro & Groff, of Nashua (Joseph F. Gall, Sr., on the brief and orally), for the plaintiff.
Holland & Aivalikles, of Nashua (William E. Aivalikles on the brief and orally), for the defendant.
[1] PER CURIAM.
In this appeal from the Nashua District Court's grant of a writ of possession to the plaintiff landlord, we must decide whether the court had authority to issue the writ subject to the right of the defendant tenant to defeat the writ by paying all arrearages. We hold that the district court had no such authority and remand the case to the district court with instructions that the unconditional writ of possession issue forthwith.
On February 19, 1980, the plaintiff served the defendant with a written notice to quit for nonpayment of rent, and on March 21, 1980, the plaintiff served the defendant with a writ of eviction. The District Court (Pantelas, J.) held a hearing on the writ of eviction on April 8, 1980. The court found for the plaintiff and decreed that a writ of possession issue forthwith if the defendant failed to pay in full all arrearages and rent to become due as of May 15, 1980, by that date and according to a specified schedule. The court denied the plaintiff's motion for a rehearing and the defendant's motion to dismiss. The plaintiff appealed, and the defendant cross-appealed. The cases were then consolidated by this court.
*450 The plaintiff argues that the district court lacked authority to issue a conditional writ of possession after rendering judgment for the plaintiff on the arrearages. We agree.
In an action for possession by a landlord against a tenant, a writ of possession in favor of the landlord shall issue, and he shall recover possession of the premises, if it appears that the plaintiff has sustained his complaint. RSA 540:14 I (Supp. 1979). In cases where the landlord's complaint arises from matters other than the nonpayment of rent, the district court may order that the tenant shall not be dispossessed until a date not later than three months from judgment. RSA 540:13-c. This statute expressly excludes a discretionary stay where the landlord establishes nonpayment of rent. Id.
The defendant could have prevented forfeiture of her leasehold interest in the premises had she paid or tendered the arrearages, $5.00 damages, and costs to the plaintiff between the time she received the notice to quit and the expiration of the notice. RSA 540:9. The defendant failed to do so.
[2] The defendant argues that the plaintiff failed to serve upon her an adequate demand for rent and that, therefore, the district court erred in granting even a conditional writ of possession. The record before us does not indicate whether the plaintiff served such a demand. The district court's judgment, however, impliedly indicates that it rejected the defendant's claim that the plaintiff failed to comply with the procedures set forth in RSA ch. 540. Fortier v. Barrett, 121 N.H 35, 36, 424 A.2d 1145, 1146 (1981). In the absence of a transcript of the proceedings, we must assume that the evidence supported the trial court's findings and rulings. See Saucier v. Saucier, 121 N.H. 330, 332, 430 A.2d 131, 132 (1981); Beaudoin v. Beaudoin, 118 N.H. 325, 328, 386 A.2d 1261, 1263 (1978).
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386096/ | 431 A.2d 39 (1981)
STATE of Maine
v.
Richard A. McEACHERN.
Supreme Judicial Court of Maine.
Argued November 3, 1980.
Decided June 25, 1981.
*40 Charles K. Leadbetter, Michael E. Saucier, Asst. Attys. Gen., Augusta, for plaintiff.
Gross, Minsky, Mogul & Singal, George Z. Singal, Bangor, for defendant.
Before McKUSICK, C. J., and WERNICK, GODFREY and GLASSMAN, JJ., and DUFRESNE, A. R. J.
PER CURIAM[*].
Following a jury trial in the Superior Court, Penobscot County, Richard McEachern was convicted of murder pursuant to 17-A M.R.S.A. § 201(1)(A). On this appeal, defendant contends that numerous errors occurred during the course of his trial including errors in evidentiary rulings, in jury instructions, in denial of a mistrial for allegedly improper argument by the prosecutor, and in denial of a motion for judgment of acquittal. We affirm the judgment.
From the evidence at trial, the jury would have been warranted in finding the following facts. The victim of the homicide, George Fredericks, was shot at about 7:00 p. m. on November 2, 1978, while sitting in an armchair in the living room of his Brewer motel apartment. His girl friend, who at the time was in the apartment kitchen, heard a volley of shots and the sound of breaking glass but did not see the assailant. Never regaining consciousness, Fredericks died the same evening from a bullet wound in his skull. Trial evidence established that Frederick's death was caused by a .22 semiautomatic rifle owned *41 by defendant. The rifle had been fired through the living room window from the darkness outside, the bullets having pierced translucent drapes. Nearly two weeks later, the authorities found the rifle buried in green plastic garbage bags by a snowmobile trail near the victim's home.
Fredericks and defendant McEachern were acquaintances of long standing whose relationship had been mutually hostile for a couple of years before the homicide. Fredericks had at one point lived with defendant's wife or then ex-wife. Defendant also owed $300 to Fredericks, who made unsuccessful but repeated attempts to collect the debt. In the course of their hostility, defendant made at least two threats against the victim's life. One occurred about a year and a half before the killing and a second somewhat closer to a year before.
On the morning of November 2, 1978, according to his girl friend, defendant left to go hunting with David Ward. Ward testified that defendant McEachern came to his home that morning around 10:00 a. m. carrying a rifle and some green garbage bags. Instead of hunting, however, the two got into one of Ward's family cars, did an errand for Ward's mother, exchanged cars, visited a friend and spent the remainder of the afternoon driving around drinking and talking. The rifle remained in the back seat of the automobile. Between 1:30 and 6:30 p. m., the pair consumed up to a fifth of brandy and a pint of vodka and smoked as many as eight marijuana joints. While driving, the two of them twice passed the Wee Holme Motel where Fredericks lived. On both occasions defendant told Ward that he wanted to "confront [Fredericks], to settle their differences." On each occasion Ward refused to stop, concluding that it was not "very wise at the time." At the day's end, the pair drove back to the friend's house where they had earlier visited. Staying there only 20 minutes, they left around 6:30 p. m. For a third time defendant asked to be dropped off by the Wee Holme Motel. This time Ward acceded to the request, and defendant left the car with his rifle in hand. Ward drove on, parked, and shortly thereafter passed out from intoxication.
Ward further testified that the day after the shooting defendant McEachern called him to ask that he tell the police that McEachern had been dropped off not in front of the Wee Holme Motel but at the end of the Bangor-Brewer bridge. Ward did give that false story to the police. Two days after the shooting, in response to Ward's direct question, defendant told him
that after I'd dropped him off he had crossed across the road and gone behind the Wee Holme Motel and looked in one window, it was the wrong window; gone to another window, looked in. He said he backed off, took five or six shots, heard a scream, then he said he ran . . . .
. . . .
[He] said when he went around the Ken Taylor's Antiques he'd almost run into the back of a police car. He said he proceeded up and he had crossedas I remember he said he crossed up by the roadcame up by the road and crossed around the stream and then gone by the snowmobile trail up to my house and he buried the gun in the garbage bags on the snowmobile trail.
Subsequently, Ward recanted his first story to the police and told them substantially what is quoted above. The police thereafter discovered the buried rifle. There was other inculpatory evidence in the record: First, the State showed, in confirmation of Ward's testimony, that there was in fact a police car parked near Ken Taylor's Antiques at about the time that defendant told Ward he had almost run into one. Second, when defendant returned home at about 9:00 or 9:30 p. m. on November 2, he immediately told his girl friend, Laurie Hathaway, that he had sold his rifle. Third, when his girl friend soon after heard from a newscast that Fredericks had been shot, her immediate reaction was to ask defendant whether he had shot Fredericks. McEachern, who did not seem drunk, responded that he had not, but added that he felt "a thousand pounds lighter on each shoulder." Fourth, after his arrest, defendant asked *42 his girl friend to try to get David Ward to leave the state, and from jail he wrote Ward a letter threatening his life.
Defendant did not take the witness stand. In his defense, Christopher McCann testified that between 7:30 and about 8:15 on the evening of the killing he and defendant were sitting in the Gaslight Bar several miles from the Wee Holme Motel. During cross-examination, it appeared that McCann was uncertain whether he was with defendant on the evening of the killing or on some other evening during the same week. Furthermore, McCann confirmed that defendant had called him several weeks after the crime to ask him to testify that their encounter at the Gaslight Bar did, in fact, take place on November 2 and not on some other date.
I. Sufficiency of the Evidence
Having adequately preserved the issue for appellate review, defendant now asserts that the evidence was insufficient to support his conviction of the offense of murder. "In reviewing the sufficiency of the evidence, we apply the standard that the conviction must be set aside if `no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.'" State v. Lagasse, Me., 410 A.2d 537, 542 (1980), quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2792, 61 L. Ed. 2d 560 (1979).
Defendant does not contend that the evidence is insufficient to permit a finding that he was the individual who fired the shots that caused the victim's death. Rather, he contends that the evidence is insufficient to establish that he acted intentionally, i. e., with a "conscious object to cause" Fredericks' death, or knowingly, i. e., with an "aware[ness] that it is practically certain that his conduct will cause such a result." See 17-A M.R.S.A. §§ 10(1)(A), 10(2)(A) (Supp.1980). Defendant asserts that the evidence is sufficient to establish only that he acted recklessly or with criminal negligence, thereby justifying conviction only for manslaughter.
Defendant's argument is predicated solely upon an absence of direct evidence of his state of mind at the moment of firing the fatal shots. There is rarely, if ever, direct evidence of a defendant's mental state at the time of commission of an unlawful homicide. Of necessity, the mental state must be proven by circumstantial evidence. See, e. g., State v. Grindle, Me., 413 A.2d 945, 949 (1980); People v. Reed, 23 Ill. App. 3d 686, 320 N.E. 249 (1974). Here, the circumstances surrounding Fredericks' killing, including the long period of hostility between the parties, defendant's threats against the victim, and his expressed desire to "confront" him, all were sufficient to permit the jury to conclude beyond a reasonable doubt that defendant acted with the requisite mental state.
II. Evidentiary Rulings
A.
William Gaudette, president of a local motorcycle club, testified that about five or six months before the killing he had "heard" that Fredericks and two others from his motorcycle club had gone to defendant's home and started a fight. He had also heard of ongoing mutual hostility between Fredericks and McEachern and had taken it upon himself to intervene. Gaudette stated that he went to defendant, whom he had not previously known, and proposed to set up, as well as supervise, a fair and weaponless fight between the two antagonists for the purpose, apparently, of ending their differences once and for all. Defendant rejected the proposal, stating to Gaudette that if Fredericks "ever came around him again, he'd blow his head off."
Defendant concedes that the trial court correctly admitted the threat itself. See State v. Gagne, Me., 362 A.2d 166, 169-70 (1976). Gaudette's testimony was first presented to the presiding justice outside the hearing of the jury in order that he might rule on its admissibility. Defendant objected to Gaudette's testimony concerning what he had "heard" concerning the hostility between the victim and defendant upon the ground that that testimony would be hearsay. The presiding justice ruled that he would admit the statements not for the truth of the matter asserted to Gaudette, but merely as explaining the circumstances *43 under which Gaudette had undertaken to have discussions with defendant. When the testimony was presented before the jury, the justice made the same ruling and immediately instructed the jury as to the limited purpose for which the Gaudette testimony was received. He repeated the instruction in his final charge to the jury at the conclusion of all the evidence.
Hearsay is defined by M.R.Evid. 801(c) as follows:
[A] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
The presiding justice eliminated any hearsay problem by properly limiting the purpose for which the evidence was admitted. The statements made to Gaudette were relevant not for the truth of the matter asserted to Gaudette, but merely as showing the circumstances that caused Gaudette to undertake to arrange a confrontation between Fredericks and McEachern leading to the threat made by the latter. To make sure that the jury would consider the evidence only for the limited purpose for which it was received, the justice carefully instructed the jury at the time the evidence was admitted and again in his final charge. The admission of Gaudette's testimony was not error. See State v. Brown, 142 Me. 106, 48 A.2d 242 (1946).
B.
Katherine von Soosten, an acquaintance of both McEachern and Fredericks, testified that defendant had threatened Frederick's life about a year and a half before the killing. At that time, von Soosten had overheard Fredericks trying to arrange to collect money owed to him by McEachern. According to von Soosten, McEachern's response was abrupt and angry:
Rick said that he was getting sick of being afraid to leave his house and not being able to go around town without being in fear of being beaten up by George or one of George's friends. He told him he knew he couldn't beat him in a fist fight. He said, someday when you least expect it I'm going to kill you. And he took off running down the street.
Defendant objected to the admissibility of this testimony, contending that the threat was too remote and, as such, unfairly prejudicial. Holding that the remoteness of the threat went to its weight, not to its admissibility, the presiding justice overruled defendant's objection. The justice correctly evaluated the proffered testimony under M.R.Evid. 403, which authorizes the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." We have previously noted that
[t]he weight of evidence of antecedent threats may well depend on the length of time between the threat and the act, remoteness in time not affecting competency. . . .
State v. Doyon, Me., 221 A.2d 827, 829 (1966), and cases therein cited. There was no error in the admission of von Soosten's testimony.
C.
Over defense counsel's objection the trial court admitted in evidence a letter written from jail by defendant to David Ward. Defense counsel objected upon the ground that the letter was not relevant and that it was unduly prejudicial. The justice rejected both asserted grounds for exclusion. In addition to threats against the witness Ward, the letter expressed McEachern's expectation that he would be convicted and spend a substantial period of time in jail.
In general, threats against witnesses, like the destruction of evidence, are properly received in evidence on the theory that such activity constitutes admission by conduct. See C. McCormick, Handbook of the Law of Evidence, 660 (2d ed. 1972). Although we have never had occasion to rule on the admissibility of threats against potential witnesses made after commission of a *44 crime, other jurisdictions have found such threats to be admissible. E. g., United States v. Pinto, 394 F.2d 470 (3d Cir. 1968); People v. Chin Hane, 108 Cal. 597, 41 P. 697 (1895); Commonwealth v. McCauley, 355 Mass. 554, 246 N.E.2d 425 (1969). Unquestionably, some prejudice may result to a defendant from the admission of evidence that he has made threats against the state's witnesses. The probative value of such evidence arises from the inference that an innocent person would not undertake to intimidate witnesses and that such intimidation is therefore an admission by the defendant of his guilt.
The problem posed by the proffer of such evidence is one of balancing its probative value against its prejudicial effect as mandated by M.R.Evid. 403. Here, the record is clear that the presiding justice undertook to evaluate the evidence under the criteria mandated by the rule. "[T]he balancing of probative value against prejudicial effect rests within the sound judicial discretion of the presiding Justice." State v. Lagasse, supra at 541. We find no abuse of discretion.
D.
Defendant sought to present the testimony of Wayne Gray, a mutual acquaintance of both himself and the victim. In an offer of proof outside the presence of the jury, Gray testified that in January of 1977, some 22 months before the killing, he was "involved in" firing four rounds from a .22 semiautomatic rifle into the home of McEachern. Three of the bullets went through the window. According to Gray, the act was done only to scare McEachern. The presiding justice excluded the evidence upon the ground that it was not relevant.
On appeal defendant urges that the evidence was relevant because from Gray's testimony that in firing into McEachern's house he only intended to scare him the jury could infer that 22 months later when McEachern fired into Fredericks' home McEachern also intended only to scare Fredericks. How Gray's state of mind on one occasion could have any bearing upon defendant's state of mind at the time of the commission of the unlawful act here involved is left unexplained. There is no logical relationship between Gray's state of mind when he committed an unlawful act and defendant's state of mind when he committed the unlawful act for which he was being tried. The presiding justice was correct. The evidence was not relevant; it had no tendency to make the existence of a material fact more or less probable. See M.R.Evid. 401.
E.
As noted earlier in this opinion, alibi witness Christopher McCann, called by defendant, testified on direct that at about the time Fredericks was shot defendant and McCann were in the Gaslight Bar several miles from the scene of the crime. On cross-examination he revealed that he had told Detective Shuman that defendant had called him from jail to suggest and to confirm that the night on which they had been drinking was November 2. McCann also told the detective that he himself was unsure of the calendar date. When asked whether he did not remember telling Shuman that it could have been a Friday instead of a Thursday night upon which he had been drinking with McEachern, McCann replied, "No, I don't."
On redirect examination, defense counsel brought out that McCann's confusion about time was related only to the calendar date. McCann maintained that he and McEachern had been together on the night that Fredericks was killed. Recross by the State elicited only that McCann was "almost sure" as opposed to absolutely positive that the night in question was a Thursday.
After McCann was excused, the State exercised the right it had reserved to recall Detective Shuman in rebuttal. Shuman testified that during their interview McCann had told him that it might have been a Friday evening when he and defendant were together. Defendant then sought to recall McCann for surrebuttal. The presiding justice listened to McCann's proposed surrebuttal testimony outside the presence *45 of the jury and excluded it upon the ground that it was merely cumulative and added nothing. We agree with the justice. McCann's surrebuttal testimony would not have contradicted the rebuttal testimony of Detective Shuman. It was merely a reiteration of the testimony McCann gave when he was first on the witness stand, that he had expressed no doubt to Detective Shuman that he had been with defendant on the night Fredericks was killed. It is not an abuse of discretion to exclude proposed surrebuttal testimony that is merely cumulative.
III. Allegedly Improper Prosecutorial Comment
Defendant moved for a mistrial asserting that the State during its final argument had improperly commented upon defendant's failure to testify.[1] In State v. Tibbetts, Me., 299 A.2d 883, 886-91 (1973), we announced rules whereby we would determine whether comment by a prosecutor on a defendant's failure to testify was reversible error. Those rules were reaffirmed in State v. Libby, Me., 410 A.2d 562 (1979). The Tibbetts rules have absolutely no application unless there is first a determination that a prosecutor has used language which either directly or indirectly refers to the defendant's failure to testify. It is not every comment about a defendant that is proscribed, but merely comment on his failure to testify. We have carefully examined the prosecutor's entire final argument, including the passages to which our attention has been directed by defense counsel, and are unable to find that the prosecutor in any way commented on defendant's failure to testify. Under such circumstances there was no error in denying defendant's motion for a mistrial.
IV. Jury Instructions
A.
As we have also noted earlier, the State's witness, David Ward, testified that at the behest of defendant he had initially lied to the police. Only after receiving defendant's admission of the killing and after then talking with his parents and consulting an attorney did Ward return to the police to reveal fully what he knew. Meanwhile, Ward's attorney had obtained a letter from the Attorney General's office, which in pertinent part read as follows:
In return for the opportunity of discussing such matters with your client, and pursuant to your request, the State of Maine hereby agrees that with respect to such discussions no statements made by your client, David Ward, during these discussions will ever be introduced into evidence against him in any criminal proceeding. The State is no way limited by this representation, however, from continuing to pursue its criminal investigation into the death of George Fredericks, nor is the State limited from bringing any charges against your client, irrespective of statements made by him, should the State determine that your representations as to your client's lack of criminal responsibility are not accurate, subject only to the continuing representation that any statement made by Mr. Ward will not be introduced into evidence against him.
On cross-examination, Ward denied being granted immunity but stated that he had *46 received a letter "to the effect that what I said in the court wouldn't be used against me if charges were ever brought against me." On redirect examination, the State, after clarifying that Ward was not immune from prosecution, placed the Attorney General's letter in evidence.
Defendant submitted a proposed instruction concerning the testimony of immunized witnesses. The proposed instruction referred to witnesses who had been granted immunity from prosecution. The presiding justice declined to give that instruction. Contrary to defendant's claim on appeal, we find no error in that refusal since whatever was the significance of the Attorney General's letter, it clearly was not a grant of immunity from prosecution and therefore the instruction proposed was incorrect.
In charging to the jury, the presiding justice explained the difference in concept between transactional immunity and use immunity. He then instructed the jury as follows:
Now if you find someone actually got some kind of immunity, then it's proper for you to consider that when evaluating the credibility or the weight to give to that person's testimony. And it's for you to say, assuming you find there was some immunity, did that affect the testimony given to you in any way here under oath. That's a factual thing for you, the Jury, to determine. And when there is shown to be some immunity, it's something that you should look into and make a finding of determination.
Defendant contends that the court committed error by leaving to the jury the determination of whether the immunity granted was transactional immunity or use immunity, asserting that it was the responsibility of the presiding justice to rule on the legal effect of the letter that had been received in evidence and then to instruct the jury as to how they should consider that letter in evaluating Ward's credibility.
At the conclusion of the presiding justice's charge, defendant made no objection to the charge on the immunity question. The court had held a conference with counsel before instructing the jury and did advise them as to its ruling on their various requests. In explaining to defense counsel that the court would not give defendant's proposed instruction on immunized witnesses, the presiding justice explained that he would instruct the jury as he later in fact did. Counsel did not then assert that it was the presiding justice's responsibility to rule as to the nature of the immunity rather than leaving it to the jury. Instead, defense counsel asserted that the court should not explain the two types of immunity because the jury would be left with the impression that because the witness did not get full immunity from prosecution, he had less reason to color his testimony. It is obvious that defendant did not desire the court to instruct in detail on the nature of the immunity granted, since had the court done so it would have had to advise the jury that the Attorney General's letter had extended only use immunity.
Defendant having failed to call to the court's attention the error in the court's instruction of which he now complains, we review that error under the obvious error standard of M.R.Crim.P. 52(b). We analyze defendant's claim of error on two distinct and inconsistent assumptions.
Assuming first that there had been an effective grant of use immunity to Ward, the presiding justice committed error in leaving to the jury the determination of the nature of the immunity granted rather than advising them that Ward had been granted use immunity. However, that error did not prejudice defendant since the instruction was more favorable to defendant than a correct instruction would have been. Under the court's instruction the jury was free to conclude that Ward had been granted immunity from prosecution and thereby conclude his testimony was influenced significantly by the grant of immunity. A proper instruction would have explained the limited nature of the grant of immunity and would have thereby lessened the impact in the jurors' minds of the grant of immunity on Ward's credibility.
*47 The foregoing analysis is based on the assumption that there had been an effective grant of immunity. In fact, no legally effective immunity had been granted at all. 15 M.R.S.A. § 1314-A (1980) authorizes the court, upon appropriate motion and under very limited circumstances, to grant immunity from prosecution to a witness. There is no statute which authorizes the Attorney General, members of his staff, or any other officer to grant immunity to witnesses, either transactional immunity or use immunity. Neither a prosecuting attorney nor any other officer of government has any inherent power to grant immunity; that power exists only by statute. State v. Brown, Me., 321 A.2d 478, 484 (1974). Since the purported grant of immunity to Ward was ineffective, the instruction given was more favorable to defendant than a correct instruction would have been.
B.
As noted above, David Ward, the State's witness, had at first given a story to the police inconsistent with his testimony on the witness stand. He had, however, fully explained in his testimony the reason for the inconsistency. Defendant submitted a proposed instruction on impeachment of a witness through proof of a prior inconsistent statement. In the conference with counsel concerning instructions before he charged the jury, the presiding justice, alluding specifically to defendant's proposed instruction concerning impeachment through the use of a prior inconsistent statement, stated:
I'm not going to be following the language that you've used here because I find some of it a little bit misleading, capable of confusion, you'll have to watch what I cover and make sure you feel I've covered the law on that in my own regular charge.
In his charge to the jury the presiding justice devoted some six pages of the transcript to lengthy and comprehensive instructions on the evaluation of the testimony and the various methods by which witnesses could be impeached. The jury was instructed fully on the methods of evaluating the testimony of witnesses. The court did not expressly instruct the jury that if it once found a witness had knowingly made a false statement about a material matter it was thereafter free to disregard all of that witness's testimony. Specifically referring to a witness who was shown to have made a prior inconsistent statement, the presiding justice instructed the jury that "the testimony of [such] a witness may be discredited or impeached by that showing that the witness previously made a statement which was inconsistent with his present testimony in front of you." While the last paragraph of the court's charge on this subject is somewhat unclear,[2] the charge viewed in its entirety could not have left the jury with any misapprehension that it was free, if it wished, to disregard all or any part of Ward's testimony. As this court has often stated, e. g., Towle v. Aube, Me., 310 A.2d 259, 266 (1973), the trial judge need not instruct in the exact words submitted by a party.
Although invited both before the charge and after it to make any objections and having been specifically admonished to listen with care to the presiding justice's instruction on prior inconsistent statements, defense counsel made no objection to the charge at its conclusion. Again, we must review the alleged error in instructions under the obvious error standard of M.R. Crim.P. 52(b). Applying that standard, we must declare that error in this portion of the charge, if there was any, did not rise to the level of reversible error.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[*] The opinion in this case was written by Glassman, J., and adopted by the court after his death.
[1] During his closing argument, the prosecutor discussed the testimony of defendant's girl friend in part as follows:
What does Richard McEachern say as he comes through the door that night to Laurie Hathaway about his gun? He says, I sold it. Now I sold it to Bobby Brown. Maybe Bobby Brown committed the homicide, that's what he wants you to think, I guess.... I suppose he could have said John Smith but Bobby Brown probably sounded like a more realistic name. Bobby Brown now has got the gun from New Jersey.
And in summing up his closing argument, the prosecutor said:
So I ask you not to compromise your verdict. I think you can draw rational inferences from the testimony and the evidence Richard McEachern is not telling the truth through his alibi witness and his evidence, that he was, in fact, there on November 2, 1978. And you can come back with no other verdict but that he is guilty as charged. I thank you.
[2] The last paragraph of the presiding justice's charge to the jury stated in pertinent part:
[I]t's for you to first find out in your minds factually whether or not the witness did make prior inconsistent statements. And if you find the witness did, then it's for you to determine whether that fact, all or part or none of the testimony given in front of you as to the credibility and that's factual use of that for the jury and nobody else. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386099/ | 885 S.W.2d 495 (1994)
Tammy Gilbreath TYRRELL, Socorro Urias, Rebecca Patterson, and Barbara Russell, Appellants,
v.
Kenton Steven MAYS, a minor, By and Through his representative parents and next friends, Mark MAYS and Lisa Mays, Appellees.
No. 08-93-00412-CV.
Court of Appeals of Texas, El Paso.
July 14, 1994.
Rehearing Overruled August 10, 1994.
*496 Robert L. Hargett, C. Dean Davis, Davis & Davis, P.C., Austin, for appellants.
John H. Rowley, Richard, Lee, Rowley, Cobb & Hall, P.C., El Paso, for appellees.
Before BARAJAS, C.J., and KOEHLER and McCOLLUM, JJ.
OPINION
McCOLLUM, Justice.
This is an interlocutory appeal from a denial of summary judgment based on the theories of official and sovereign immunity. Appellees (parents) brought suit against Appellants (four nurses of the Culberson County Hospital) for the negligent post-natal care of their minor son. We affirm.
The Facts
On September 21, 1984, Appellants were employees of Culberson County Hospital in Van Horn, Texas when Lisa Mays gave birth to Kenton Mays by way of a Caesarean-section. Kenton Mays had problems immediately following his birth, including cyanosis, flaccid appearance, slowness in beginning spontaneous respiration, and necessity of resuscitation with an oxygen mask. He was ultimately transferred by helicopter the following day to the neonatal intensive care unit at Providence Hospital in El Paso, Texas.
Appellees claim that due to the inadequate care Kenton Mays received from Appellants, he suffered hypoglycemic respiratory distress, and as a result of Appellants' negligence, sustained significant permanent brain damage.
Upon Appellees filing this nursing negligence suit, Appellants filed a motion for summary judgment arguing that as nurses employed by a government-run hospital, they *497 were officially immune from suit, or in the alternative, they were entitled to summary judgment under the doctrine of sovereign immunity. The trial court denied Appellants' request in its entirety.
Appellants filed this interlocutory appeal and in two points of error, assert that the trial court erred in denying their motion for summary judgment because as nurses in the employ of Culberson County Hospital, a government-run unit, they are officially immune from suit, or in the alternative, they are immune under the doctrine of sovereign immunity.
Standard of Review
The applicable standard of review for summary judgment is familiar: (1) The movant for summary judgment has the burden of showing that there is no issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex. App.Dallas 1991, no writ). When a defendant moves for summary judgment on the basis of his affirmative defense, he must conclusively prove all essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The question on appeal is, then, did Appellants establish as a matter of law their non-liability for the alleged negligence by reason of some form of immunity.
Official Immunity
The underlying purpose of official immunity is that government officials might be free to exercise their duties without fear of damage suitssuits which would consume their time and energy and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. Armendarez v. Tarrant County Hosp. Dist., 781 S.W.2d 301, 305 (Tex.App.Fort Worth 1989, writ denied). In order to establish entitlement to the protection of official immunity, a government employee such as each Appellant here must show the following:
(1) she occupies a position of quasi-judicial status;
(2) she acted in good faith; and
(3) she acted within her authority as a quasi-judicial employee.
Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 48 (Tex.App.Houston [1st Dist.] 1993, n.w.h.); Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.El Paso 1993, writ granted); Eakle v. Texas Dep't of Human Services, 815 S.W.2d 869, 875 (Tex. App.Austin 1991, writ denied). Government employees are subject to suit if their acts are "ministerial" acts involving mere obedience of orders or performance of duties requiring nongovernmental choices, as opposed to "discretionary" acts requiring personal deliberation, decision, and judgment involving the government. Hatley v. Kassen, 859 S.W.2d 367, 374 (Tex.App.Dallas 1992, writ granted). It is the involvement of discretionary acts which makes a position quasi-judicial. Gonzalez, 866 S.W.2d at 349. Appellants base their official immunity claim on their status as employees of the County Hospital, a political subdivision of the state, as well as their good faith execution of duties within the course and scope of that official employment. The courts, however, have analyzed the quasi-judicial nature of the duties executed by medical personnel employed by the government on the basis of whether, although literally involving the exercise of discretion, those duties are uniquely different from those engaged in the same duties in the private sector or where no function unique to the government is being exercised. Armendarez, 781 S.W.2d at 306; Hatley, 859 S.W.2d at 374; Wheeler, 866 S.W.2d at 48.
Armendarez v. Tarrant County Hospital District was the first to address the question of whether medical personnel are entitled to official immunity. In a case involving a medical malpractice action against doctors as the result of alleged negligence in connection with the birth of a baby, the Court held that medical doctors are not entitled to protection as quasi-judicial officers unless their duties *498 constituted a function unique to government or unless they were uniquely different from the duties of those practicing medicine in the private sector. Armendarez, 781 S.W.2d at 306-07. The Court reasoned that the purpose of official immunity is not served when an employee has the same duty and therefore no greater risk of liability than an employee performing the same duties in the private sector. Id. at 306. The Court said, "the threat of a lawsuit would not deter a doctor in the fearless and vigorous exercise of medical discretion any more than it would a doctor in private practice." Id. The Court addressed the criticism, asserted by Appellants here as well, that its decision is a departure from established Texas rules affording immunity to those exercising quasi-judicial discretion. The Court said their decision was not a departure, but a clarification in keeping with the basic purpose of the immunity doctrine, that being the discretion which must be exercised by the employee seeking official immunity must be uniquely governmental in nature. Id. at 307.
In Hatley v. Kassen, the Court followed the reasoning of Armendarez and applied the governmental/occupational function distinction to hold that a government-employed psychiatrist's acts in that case were not quasi-judicial in nature, as they were not different from a psychiatrist's acts in private practice or not uniquely governmental in nature. Hatley, 859 S.W.2d at 375. The Court said that the governmental/occupational function distinction often favors individual citizens by allowing them to file tort claims for injury or death caused by government-employed physicians over the need to immunize government-employed physicians to promote the effective administration of government. Id. at 374. Interestingly, concerning a nurse sued in the same action, the Court said, "Generally, nurses have few discretionary duties and usually perform ministerial functions under the supervision and orders of their superiors." Id. at 379. Estate of Burks v. Ross, 438 F.2d 230, 235 (6th Cir.1971). "A government-employed nurse engages in the same endeavors as a nurse in private practice and, therefore, engages in ministerial acts for purposes of official immunity." [Citations omitted]. Id. at 379-80. [Emphasis added].
Another case which involved nurses asserting official immunity was Wheeler v. Yettie Kersting Memorial Hospital. Recognizing that almost any act might be said to involve discretion, the Court followed Armendarez and applied the governmental/occupational function test to determine whether the nurses occupied a position of quasi-judicial status. Wheeler, 866 S.W.2d at 48. The Court said, "The rationale also serves the public policy that the mere fact of governmental employment, without more, should not automatically insulate one from any and all liability for his or her negligent acts." Id.
Most other cases which have dealt with the discretionary/ministerial analysis are distinguishable because they have involved functions which have no private sector counterpart. See e.g., City of Lancaster v. Chambers, 883 S.W.2d 650 (1994) (police officers engaging in a high-speed chase was a discretionary act); Chapman v. Gonzales, 824 S.W.2d 685 (Tex.App.Houston [14th Dist.] 1992, writ denied) (acts of personnel director of county sheriff's department in assisting applicant during test were discretionary); Carpenter v. Barner, 797 S.W.2d 99 (Tex.App.Waco 1990, writ denied) (constable was discharging discretionary public duty within scope of his authority). In such cases, the official or employee is executing duties uniquely governmental in nature, and the purpose of immunity is served in order to not allow the threat of a lawsuit to deter the public employee from vigorously and effectively administering the policies of government.
We find the reasoning of Armendarez and its progeny persuasive in situations where the duties of a public employee are basically the same as those performing the same function in the private sector, and those duties are not uniquely governmental in nature. See Armendarez, 781 S.W.2d at 309 (opinion on rehearing). In such instances, the mere fact of employment, much like "accident of birth," should not be the dispositive factor, in this case imparting immunity. Such would be tantamount to granting license to commit negligence, which is an untenable position.
*499 Since there is no summary judgment proof indicating Appellants' duties were unique to government or uniquely different from those providing the same services in the private sector, Appellants are not entitled to protection as quasi-judicial status. Appellants' Point of Error No. One is overruled.
Sovereign Immunity
In their second point of error, Appellants assert, in the alternative, they are immune from suit under the doctrine of sovereign immunity. This might be true if Appellants were sued in their official, as opposed to individual capacities, as suits against state officials in their official capacities are in all respects suits against the state, and only the legislature may waive immunity from such suits. Thomas v. Collins, 853 S.W.2d 53, 55 (Tex.App.Corpus Christi 1993, writ denied). This concept was clearly set forth in Baker v. Story:
Historically, this doctrine [sovereign immunity], as its name implies, shields the sovereign from liability. Where the question concerns the liability of a governmental officer or employee, rather than the liability of the sovereign itself, the problem is one of official immunity, not of sovereign immunity. Whether public servants enjoy immunity from liability for their torts is a question distinct from that of the immunity of the sovereign itself.
Baker v. Story, 621 S.W.2d 639, 643 (Tex. App.San Antonio 1981, writ ref'd n.r.e.).
Appellees non-suited Culberson County Hospital from the litigation, thereby making the present action a suit against Appellants in their individual capacities. Sovereign immunity does not apply to suits against individuals; therefore, the doctrine of sovereign immunity is inapplicable to Appellants under the fact situation of the case at bar. Appellants' Point of Error No. Two is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386100/ | 494 Pa. 496 (1981)
431 A.2d 964
COMMONWEALTH of Pennsylvania, Respondent,
v.
George WILLIAMS, Petitioner.
Supreme Court of Pennsylvania.
Argued April 28, 1981.
Decided July 8, 1981.
*497 *498 Margaret H. Poswistilo, Asst. Public Defender, for petitioner.
Allan Goodman, Asst. Dist. Atty., James Connell, Bethleham, for respondent.
Before ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
OPINION OF THE COURT
WILKINSON, Justice.
Petitioner was arrested and indicted for robbery and conspiracy. At the time of his arrest one of two co-conspirators was shot and killed as he attempted to flee. A motion to suppress certain evidence obtained at the time of the warrantless arrest, such as the "loot" from the robbery which had occurred a matter of minutes before and which was found in the room from which the felons were fleeing, was denied. The petitioner was found guilty. The court of common pleas en banc overturned the ruling of the suppression court and granted a new trial. After the second trial petitioner was again found guilty. Post trial motions were denied with a twenty-three page opinion. On appeal to the Superior Court, with five judges participating, the trial court was affirmed with a sixteen page majority opinion, two judges dissenting with a twelve page opinion, reported at 262 Pa.Super. 508, 396 A.2d 1286 (1978). As must be apparent from the above there are no easy answers to the difficult questions presented here. Twice the petitioner has been found guilty with more than ample apparently obvious evidence to support the guilty verdict. In the first case, as indicated, the trial court granted a new trial based on its acceptance of evidence that it later considered should have *499 been suppressed. Unfortunate as it may be, once again the judgment of sentence must be reversed and the case remanded for yet a third trial.
A juror in the second trial, disregarding the judge's instructions, during the course of the trial, read a newspaper account of the current trial that referred to the fact that the petitioner had previously been convicted of this offense but was being retried and certain evidence in the hands of the district attorney which was used in the first trial could not be used in this one. This in itself might have been enough to require a new trial but there was more. The jury who read the newspaper article was sufficiently impressed by the account to discuss it with a fellow juror who had not seen it. Having thus so flagrantly disregarded the trial court's instructions not to read accounts of the trial or to discuss the trial with anyone, even other jurors, until the case was committed to them, we cannot agree with the majority of the Superior Court that these two jurors could, would, and did adhere to the court's admonition to disregard the newspaper account that additional evidence guilt was available but not being offered, and, most importantly, that the petitioner had been convicted previously of this same offense which conviction was reversed because of a "technicality". See Commonwealth v. Heacock, 467 Pa. 214, 355 A.2d 828 (1976); Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974).
A second question was raised on which the Superior Court was divided as a matter of principle but seemed to agree that it would not have affected the outcome of this case. Because of the third retrial we will comment on it briefly. The Superior Court's opinions, supra, discuss the facts, issues, and decided cases in this and other jurisdictions in great detail making it unnecessary to repeat them here. The short of it is that for nine days the policy observed an apartment to determine who was in it and what they were doing. The police had reason to believe an escaped convict would come there. They had a warrant for his arrest, but no "search warrant" to observe the apartment. The apartment *500 was on the third floor. The police observation post was thirty to forty feet away, across the street, on the third floor. Petitioner did not place covers over the windows. As a result, at all times, other than in darkness, the officers could observe the activities within the apartment with their naked eyes and with binoculars. Sometimes, after dark, if the lights were off, but the television was on, it supplied enough light to observe some limited activity.
The difficult issue of impermissible warrantless search arises when the police introduce a startron which permitted the officers to see what went on in the apartment when the lights were out and the television off. Following Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), allocatur denied, cert. denied, 401 U.S. 914, 91 S. Ct. 886, 27 L. Ed. 2d 813 (1971), the trial court and the majority of the Superior Court held the petitioner had not taken appropriate steps, i.e., provided curtains or blinds, to insure privacy. The dissenting judges felt otherwise, relying on Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). However, the minority agreed that the critical evidence supporting conviction was obtained by observations made by other than the startron. We mention it in this opinion to the end that the prosecuting authorities on the third trial will not introduce evidence obtained by use of the startron.
It is not necessary at this time and in this case to hold that every time a startron or other device that "sees" through darkness is used by authorities to obtain evidence without a search warrant the evidence must be suppressed. However, when such a device is used for nine days to observe a private apartment frequented by other than those sought by the police, including two acts of sexual intercourse not involving the person, the subject for detection, for whom the surveillance was established, then the warrantless observation of a third floor apartment in darkness has truly impermissibly invaded privacy to which all citizens, including petitioner, are guaranteed by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
*501 Judgment of sentence is reversed and the case is remanded for a new trial.
O'BRIEN, C.J., did not participate in the consideration or decision of this case.
ROBERTS and LARSEN, JJ., concurred in the result.
KAUFFMAN, J., dissented. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386150/ | 49 Md. App. 422 (1981)
431 A.2d 1387
THE NEWS AMERICAN DIVISION, THE HEARST CORPORATION, INTERVENOR
v.
STATE OF MARYLAND ET AL.
No. 409, September Term, 1981.
Court of Special Appeals of Maryland.
Decided July 21, 1981.
The cause was argued before GILBERT, C.J., and MORTON and COUCH, JJ.
Theodore Sherbow, with whom were William A. Agee and Sherbow, Shea & Tatelbaum, P.A. on the brief, for appellant.
Alfred L. Scanlan, Jr., Special Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Alan Betten, Special Assistant Attorney General, William A. Swisher, State's Attorney for Baltimore City, and Howard B. Gersh, Assistant State's Attorney for Baltimore City, on the brief, for appellee State of Maryland.
Gary S. Offutt, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees George Green and Willie Green.
GILBERT, C.J., delivered the opinion of the Court.
HISTORY OF THE CASE
This case appeared initially in this Court as an appeal from a so-called "gag order" passed by the Criminal Court of Baltimore (Pines, J.) dated April 29, 1981.[1] The order was sought by George Green and Willie Green (the Greens), appellees and cross-appellants, and defendants in a criminal proceeding involving allegations of a double murder, robbery, and related offenses. The Greens were upset by what they apparently felt was the prosecution's attempt to try its case against them in the media.
*424 The appellant, News American Division, The Hearst Corporation (News American) intervened in the Criminal Court and opposed the passage of the "gag-order." Following Judge Pines' signing of the order, the News American appealed to this Court and filed a motion requesting that the exigencies of the situation suggested that the appeal be advanced so *425 that we might hear and determine it as expeditiously as possible. The Greens appealed the Criminal Court's having allowed the News American to intervene in the first instance.
While the appeal was pending before this Court, the State filed a suggestion of removal, and the Criminal Court (Dorf, J.) removed the matter to the Garrett County Circuit Court for trial. Thus, when the appeal was argued, we dismissed it as moot because the order of the Criminal Court was effective during the pendency of the Green case before that court only. Consequently, since it was removed to Garrett County, the "gag-order" was no longer viable.
Shortly after we dismissed the appeal as moot, the State's Attorney for Baltimore City withdrew his request for removal. In so doing, he breathed new life into the "gag-order." The News American, in light of the resurrection of the "gag-order," promptly moved for a reconsideration of our dismissal. Over the objection of the Greens we decided to grant the motion of the News American and to hear the case on its merits.
ISSUES ON APPEAL
The appellant, News American, sees the issue before us as one of constitutional magnitude. It asserts:
"The trial court's order of April 29, 1981, violates rights guaranteed by the Constitution of the United States and the Constitution of Maryland as a prior restraint on freedom of speech and of the press and as a denial of access to information concerning judicial proceedings."
The Greens have a somewhat different view of the question before the Court. They aver that:
The News American should not have been allowed to intervene in the criminal case and that the trial judge erred in permitting the News American to intervene.
*426 HOLDING OF THE COURT
For the reasons stated infra, we hold that the News American should not have been allowed to intervene in the criminal case between the State of Maryland and the appellees-cross appellants, George and Willie Green. That is not to say that the newspaper was without a way to seek relief from the order of the Criminal Court of Baltimore. The remedy, however, lies, not by way of direct intervention in the criminal case, but rather through a writ of mandamus, or mandatory injunction or declaratory judgment obtained from a court of competent jurisdiction.
THE LAW
The News American contends that although "the issue of the media's right to intervene in a criminal case has never been expressly addressed by a Maryland appellate decision ... this court has impliedly held that the media may be permitted to intervene in a criminal case and appeal from an order adversely affecting their rights."
To support that statement, the newspaper cites the recent case of Patuxent Publishing Corp. v. State, 48 Md. App. 689, 429 A.2d 554 (1981), but they draw a far greater conclusion from Patuxent Publishing than is warranted. In Patuxent, the trial court allowed the media to intervene so that the media might mount a challenge to the court's entry of a "gag-order" and also an attack upon a second order that closed the "gag-order" hearing to the public. The standing of the media to intervene in the criminal case was neither raised in the trial court nor in this Court. Because it was not raised, it was not considered. We think that to deduce implicit approval of the media's right to intervene in a criminal case from an unraised and undecided issue is akin to presuming waiver from a silent record, and that is impermissible. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
Undoubtedly, the public and the press have a right of access to criminal trials. The Supreme Court of the United *427 States has said that that right is "implicit in the guarantees of the First Amendment." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).
Even absent the Constitutional provision, the right existed at common law and, thus, has been part of Maryland legal history since its founding in 1634. Following the Revolutionary War, the right to a public trial continued to be vested in the people and the press. See Maryland Constitution, Declaration of Rights, Article V.
While the press, as members of the general public, are entitled to a forum to assert their First Amendment rights, they possess "no special standing" or status to challenge court orders limiting access of the public and press to criminal proceedings. "Their privilege to attend court proceedings is neither greater nor lesser than that of members of the general public, for their status derives from the rights of the general public for whom they merely act as surrogate and as witness to what the general public could itself witness were it able to be present." Oxnard Publishing Co. v. Superior Court of Ventura County, 68 Cal. Rptr. 83, 88 (1968). The press, however, needs no special standing because as members of the general public, they have an absolute right to seek access to the criminal courts. Id.; Wrather-Alvarez Broadcasting, Inc., v. Hewicker, 147 Cal. App. 2d 509, 305 P.2d 236 (1957); Kirstowsky and Hearst Publishing Co. v. Superior Court of Sonoma County, 143 Cal. App. 2d 745, 300 P.2d 163 (1956); E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955).
The Court of Appeals of New York, in United Press Association v. Valente, 308 N.Y. 71, 123 N.E.2d 777 (1954), passed upon a matter wherein United Press had instituted an action in the nature of a writ of prohibition to restrain a judge in a criminal case from enforcing an order that excluded the general public and the press from the courtroom during the presentation of the people's case. The trial court's order was grounded on the theory that public decency required the exclusion. The Court of Appeals of New York, in agreeing, stated:
*428 "The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given `every citizen' to attend court sessions, ... they are in no position to claim any right or privilege not common to `every [other] citizen.'" (Citation omitted.) 123 N.E.2d at 783.
On the reverse side of the coin from the public-press access to the criminal courts is the ever important right of the accused to a fair and impartial trial. It sometimes happens that the right of the public and press collide head-on with the accused's right to a fair trial. When that occurs, the trial judge must undertake a delicate balancing of the respective rights of the public and press vis-a-vis those of the defendant, so as to resolve the matter in a way that protects the rights and privileges of both interests.
We think that is precisely what Judge Pines endeavored to do in the instant case.[2] Neither the public nor the press has been excluded from the courtroom during the trial of the Greens. The restraint order by the judge is directed to a particular class of persons, namely the lawyers and allied court personnel. The order prevents them from making any extra-judicial announcements, pronouncements, or comments about the case to the public or the media.
Although some "news sources" have been muffled, there is nothing in the order that prevents the media from publishing what they may learn about the case. Cf. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975), rev'd on other grounds sub nom. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).
*429 THIRD PARTY INTERVENTION IN CRIMINAL PROCEEDINGS
Thus far, we have discussed the right vel non of the media to challenge a court order excluding the public and the press from a trial.
We now turn our attention to consideration of the dispositive issue in this appeal, the right vel non of any third party to intervene directly in a criminal prosecution.
In Central South Carolina Chapter, Society of Professional Journalist, Sigma Delta Chi v. U.S. District Court for the District of South Carolina, 551 F.2d 559 (4th Cir.1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 771 (1978), the district court judge entered a pretrial order that regulated the conduct of participants in a trial, and also restricted the conduct and seating of the press in the courtroom. The United States Court of Appeals for the Fourth Circuit dismissed an appeal of the order by a professional society of journalists. Judge Widener wrote for the court:
"It is clear that the Society should not participate in a case to which it is not a party. Even in civil cases, intervention requires an interest in the transaction or property before the court. FRCP 24. But the Society has no interest in the determination of the defendant's guilt or innocence to justify its intervention. Moreover, there is no counterpart to intervention in the criminal law or rules.
....
Since we find nothing in the criminal law or rules permitting the Society to intervene in this case, to introduce collateral issues, and to disrupt the pending criminal trial, we dismiss the appeal." Id. at 563, 565.
A similar result was reached by the Washington State Supreme Court in State v. Bianchi, 92 Wash.2d 91, 593 P.2d *430 1330 (1979). There, the prosecution and the defense appealed from an order of the trial court that permitted a newspaper to intervene for the sole purpose of contesting an order limiting access of the public and the press to the "Affidavit of Probable Cause Determination," which, we infer, set out some of the details of the case. Upon the motion of both the prosecution and the defense, the trial court had granted a protective order sealing the "Affidavit of Probable Cause Determination." The high court for the State of Washington held:
"There is no rule, statute, or precedent in this state that would allow a third party to intervene in a criminal proceeding. The Washington Rules of Criminal Procedure make no provision for such intervention. Intervention of right is provided for in civil cases only if the intervening party claims `an interest relating to the property or transaction which is the subject of the action.' Washington Superior Court Civil Rule 24. The only purpose of a criminal trial is the legal determination of the defendant's guilt or innocence. The Herald has no direct interest in this determination to justify its intervention and the disruption of the pending criminal proceedings inherent in the intervention process. The Herald's remedy must therefore lie in a separate action for declaratory judgment, mandamus, or prohibitions."
Earlier, our most western state, Hawaii, held that representatives of the press could not intervene in the pretrial stages of a criminal proceeding for the purpose of preventing closure of a preliminary hearing. The Hawaiian Supreme Court said in Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 580 P.2d 49 (1978), that:
"The Hawaii Rules of Penal Procedure make no provision for nonparty intervention in criminal proceedings, and the adjudicated cases hold that a third party is not entitled to intervene in a criminal *431 prosecution on the ground that he has no direct interest in the determination of the guilt or innocence of the accused to justify his intervention.... To permit a third party to intervene would `unnecessarily encumber pending litigation and invite the entry of "nonparty-parties" when the right or interest sought to be enforced is not directly involved in the subject matter of the pending proceeding.' ... His remedy must ordinarily lie in an original action in prohibition ... or in mandamus...." (Footnote omitted.) (Citations omitted.) 580 P.2d at 58.
See also State v. Simants, supra.
Just as in Central South Carolina Chapter, Society of Professional Journalist, Sigma Delta Chi, Bianchi, Gannet Pacific, and Simants, Maryland has no statute or rule of court addressing the intervention by third parties in criminal cases. Md. Rule 208, the only rule of Procedure concerned with intervention, provides in pertinent part:
"a. Of Right.
Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.
b. Permissive.
1. Person.
Upon timely application a person may be permitted to intervene in an action when his claim or defense has a question of law or fact in common with the action."
*432 A comment to Rule 208 declares that "[t]he language of these provisions, while taken substantially from Federal Rule 24 and New Jersey Rule 4:37, is practically declaratory of the existing Maryland common law."
There is no counterpart to Rule 208 in the criminal rules of procedure.[3] We think the omission of a rule sanctioning intervention in criminal cases was by way of purposeful design rather than mere omission. To allow third party intervention in a criminal prosecution would be to permit the introduction of collateral issues, disrupt the orderly process, and create confusion, where, in order to protect the rights of the accused, clarity is a manifest necessity. Aside from that distinct possibility, delay in the trial of the criminal case may be occasioned, as in the instant matter, by appeal of collateral issues.
We adopt the views and disposition of the United States Court of Appeals for the Fourth Circuit as expressed in the Central South Carolina Chapter case.
Accordingly, we dismiss the appeal.
Original appeal dismissed.
Order of the Criminal Court of Baltimore, permitting intervention by appellant, reversed.
Costs to be paid by appellant-cross appellee.
NOTES
[1] The order provided:
"(1) No party covered by this Order shall make or issue any extrajudicial statement, written or oral, for dissemination by means of public communication, relating to the above-captioned cases concerning:
(a) The prior criminal record, or the character or reputation of the Defendant, except a factual statement of the Defendant's name, age, residence, occupation, and family status;
(b) The existence of contents of any confession, admission, or statement given by the Defendant, or the refusal or failure of the accused to make any statement;
(c) The performance of any examinations or tests or the accused's refusal or failure to submit to an examination or test;
(d) The identity, testimony, or credibility of prospective witnesses, except that the identity of the victim may be announced if the announcement is not prohibited by law;
(e) The possibility of a plea of guilty to the offense charged or a lesser offense;
(f) Any opinion as to the Defendant's guilt or innocence or as to the merits of the case or the evidence in the case.
(2) The foregoing shall not be construed to preclude a party covered by this Order, in the proper discharge of his official or professional obligations, from announcing the fact and circumstances of arrest, the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission or statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charged; from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any stage in the judicial process from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against him.
(3) This Order does not apply to statements made, evidence given, or pleadings filed in this action. Of course, all proceedings in the action are and will continue to be public and matters of public record.
(4) No person covered by this Order shall avoid the effect of it by actions which deliberately bring about a violation of this Order. A copy of this Order shall be served on each party named herein, immediately upon its entry, and as each witness is summoned, a copy of this Order shall be served on him with the service of a summons.
(5) This Order is binding on all Court personnel, all attorneys, representing the State and defense, including both the assistants involved in the trials of the instant cases and the Deputy State's Attorney and State's Attorney for Baltimore City and the State Public Defender, District Public Defender, or the Defendant and Co-defendants (and their attorneys), and on each witness for both sides. It shall remain in force during the pending of any or all of the above-captioned cases before this Court."
[2] We are not to be understood as approving or disapproving the order passed in the instant case. Our comments on the order are intended solely to indicate its scope, not its validity.
[3] Md. Rule 1 specifically states that "[t]he Rules in Chapters 100-600 do not apply to the proceedings dealt with in Chapter 700 [criminal causes]." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386159/ | 288 Pa. Super. 284 (1981)
431 A.2d 1049
In re A.E.M., J.J.M., S.L.M., Minors.
Appeal of B.M.
Superior Court of Pennsylvania.
Argued May 11, 1981.
Filed June 26, 1981.
*285 William K. Sayer, Stroudsburg, for appellant.
Michael R. Muth, Stroudsburg, for appellees.
Richard E. Deetz, Stroudsburg, submitted a brief on behalf of Children's Bureau, participating party.
John B. Dunn, Stroudsburg, for William M., participating party.
Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
HOFFMAN, Judge:
Appellant contends that the lower court erred in awarding custody of three of her children to the Children's Bureau of Monroe County because the Children's Bureau failed to establish that the children were "dependent" as defined by the Juvenile Act.[1] For the reasons which follow, we vacate the order of the court below and remand for further proceedings.
On August 11, 1980, the Children's Bureau filed a petition pursuant to the Juvenile Act in which it alleged that A.E.M., J.J.M., and S.L.M., then ages 12, 11, and 9 respectively, were dependent children because their natural parents, appellant and her husband, were "unable to provide the care and *286 control for the aforesaid children necessary for their physical, mental and emotional health." At that time, the children were residing with their father in East Stroudsburg, Pennsylvania, and appellant was residing with a fourth child in Fayetteville, North Carolina. The petition averred that: the residence in which the children were living was overcrowded and lacked running water and adequate sewage facilities; the father left the children in the supervision of an unsuitable person and had previously left them completely unsupervised while he was at work; the children had previously lived with their father in a different residence under similar conditions; and during the previous winter the father had not adequately clothed the children. On August 26, 1980, the Children's Bureau filed a petition seeking temporary protective custody of the children on the ground that their living conditions had deteriorated. The lower court granted the petition and held a hearing on August 29 at which the father agreed that the Children's Bureau should retain custody of the children until the hearing on the dependency petition, which had been scheduled for September 10. At the September 10 hearing, appellant's attorney informed the court that appellant opposed the Children's Bureau's dependency petition and that she wanted to obtain custody of the three children. Without taking any testimony, the court continued the hearing and directed the Children's Bureau "to make an investigation of any proposed home that [appellant] wishes to advise them of through the local agency in North Carolina."[2]
On November 13, 1980, the lower court held a hearing at which appellant was the only witness. She testified that her husband left North Carolina with the three children in November of 1977. She subsequently learned that they were living in the Stroudsburg area. She did not see the children again until the September 10 hearing because she could not afford to come to Pennsylvania. She did, however, *287 send many letters to the children. Appellant testified that she is unemployed and that welfare benefits and food stamps are her sole means of support.[3] She stated that she and her remaining child were then living in a two-bedroom house, but that she would rent a larger house if the other three children were returned to her. Appellant acknowledged that before her husband left with the children, their house was filthy because she had done no housekeeping. She testified, however, that her housekeeping has since greatly improved.
The father did not oppose the dependency petition and was willing to have the children continue in the custody of the Children's Bureau. The attorney who had been representing the children throughout these proceedings did not express an opinion as to whether the dependency petition should be granted. At the conclusion of the hearing, the lower court entered the following order:
[T]he Court finds that in their present position neither parent has provided a proper home for the best interests of the children. The Court further finds that as of this time no improvement has been made, or such small amount of improvement has been made by either the mother or the father that the best interests of the children still remains that they be committed to the Children's Bureau of Monroe County . . . .
This appeal followed.
The Juvenile Act defines a "dependent child," in pertinent part, as a child who "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . . . ." 42 Pa.C.S.A. § 6302. "Before interfering with a parent's care or control of a child and ordering the intervention of an agency of the state, a court must first determine that the child is dependent." In *288 the Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981). See 42 Pa.C.S.A. § 6341(a). "[T]he fact of dependency must be proved by evidence that is `clear and convincing.'" In the Interest of Theresa E., supra, 287 Pa.Super. at 172, 429 A.2d at 1155. See 42 Pa.C.S.A. § 6341(c). "[I]n determining whether a child is dependent, the hearing judge should not ask what are the child's `best interests' but whether the child is presently without proper parental care and, if so, whether such care is immediately available." In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-78 (1979) (citing In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976)). Accord, In the Interest of Theresa E., supra; In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980). A child who has been adjudicated dependent may not be separated from his parents unless such separation is clearly necessary. 42 Pa.C. S.A. § 6301(b)(3); In the Interest of Theresa E., supra; In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981) (collecting cases). "To ensure a proper resolution of these issues, separate counsel should represent the child at the dependency hearing, and the hearing judge should conduct a comprehensive inquiry by receiving evidence from both interested and disinterested witnesses and should support his decision in an opinion in which he discusses and analyzes the evidence fully." In the Interest of Pernishek, supra, 268 Pa.Super. at 457, 408 A.2d at 877. Accord, In the Interest of Theresa E., supra; In the Interest of S.M.S., 284 Pa.Super. 9, 424 A.2d 1365 (1981).
In the instant case, the lower court did not make a finding that the children were dependent. Because such a finding is a prerequisite to the making of a disposition pursuant to the Juvenile Act, the lower court's order awarding custody of the children to the Children's Bureau cannot be sustained. Additionally, the existing record is inadequate to enable the court to decide the issue of dependency. Although it appears that the children were without proper parental care at the time they were removed from their *289 father's custody, they cannot be adjudicated dependent unless there is clear and convincing evidence that such care is not immediately available. In the Interest of Pernishek, supra. To make that adjudication, the court must determine whether appellant is presently capable of rendering proper care to the children, a determination which cannot be made on the present record. There is virtually no evidence regarding appellant's proposed home for the children in North Carolina. Although the lower court directed the Children's Bureau to investigate appellant's home, the record does not indicate that such an investigation was made, and no evidence on the subject was adduced at the dependency hearing. Accordingly, on remand the lower court should obtain and consider the results of such an investigation before making its adjudication. Additionally, the court should consider obtaining disinterested testimony from neighbors, social workers, and/or psychological experts before making its adjudication. See In re Jackson, 267 Pa.Super. 428, 432, 406 A.2d 1116, 1118 (1979) ("[W]hen the hearing judge believes the evidence offered at a dependency hearing to be incomplete he not only may but `should receive, and if necessary should seek out, evidence from objective, disinterested witnesses.'") (quoting In the Interest of LaRue, 244 Pa.Super. 218, 229, 366 A.2d 1271, 1276 (1976)).[4]
Because of the errors described above, we must vacate the lower court's order and remand the case for a new hearing in accordance with this opinion. After the hearing, the lower court shall enter an appropriate order and prepare an opinion with specific findings of fact on all the evidence. Any party aggrieved by the court's ultimate decision may file a new appeal.
Order vacated and case remanded for further proceedings consistent with this opinion.
NOTES
[1] Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended; 42 Pa.C.S.A. § 6301 et seq.
[2] Appellant subsequently filed an answer to the dependency petition in which she admitted the allegations regarding the children's father but denied that she was unable to provide the children proper care and control.
[3] Appellant stated that after her husband left with the children, she returned to school and obtained a high school diploma in November of 1978. Her efforts to secure employment since then have been unsuccessful.
[4] We note also that the lower court failed to "support [its] decision in an opinion in which [it] discusses and analyzes the evidence fully." In the Interest of Pernishek, supra, 268 Pa.Super. at 457, 408 A.2d at 877. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386165/ | 494 Pa. 297 (1981)
431 A.2d 267
Matthew V. STRINICH, Appellant,
v.
CLAIRTON SCHOOL DISTRICT.
Supreme Court of Pennsylvania.
Submitted March 3, 1981.
Decided July 2, 1981.
Reargument Denied November 9, 1981.
*298 Thomas W. Scott, Killian & Gephart, Harrisburg, for appellant.
Ira Weiss, Goldman, Weiss & Gross, P.C., Pittsburgh, for appellee.
Michael I. Levin, Cleckner & Fearen, Kent H. Patterson, Harrisburg, for amicus curiae Pa. School Boards Ass'n.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
*299 OPINION OF THE COURT
O'BRIEN, Chief Justice.
This appeal is from an order of the Commonwealth Court which reversed a decision of the Secretary of Education and upheld the dismissal of appellant, Matthew V. Strinich, a tenured teacher, by appellee, the Clairton School District.
In January, 1978, appellant was notified that the school district was seeking to dismiss him from his position as a tenured teacher because of appellant's persistent negligence. The School Code of 1949[1] provides:
"The only valid causes for termination of a contract . . . entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe. . .".
24 P.S. § 11-1122 (emphasis added). On February 2, 1978, a hearing on the charges was held before the Clairton Board of School Directors [Board] as required by the School Code. 24 P.S. § 11-1127. Following the hearing the Board voted to dismiss appellant who then appealed to the Secretary of Education pursuant to § 11-1131 of the School Code, which provides:
"In case the professional employe concerned considers himself . . . aggrieved by the action of the board of school directors, an appeal, by petition, setting forth the grounds for such appeal, may be taken to the Superintendent of Public Instruction [now the Secretary of Education] at Harrisburg.
* * * * * *
"The [Secretary of Education] shall review the official transcript of the record of the hearing before the board, and may hear and consider such additional testimony as he may deem advisable to enable him to make a proper order. . . .
*300 "After hearing and argument and reviewing all the additional testimony filed or taken before him, the [Secretary of Education] shall enter an order, either affirming or reversing the action of the board of school directors, as to him seems just and proper."
24 P.S. § 11-1131 (emphasis added).
At the hearing before a hearing examiner, appellant introduced additional testimony. On April 12, 1979, the Secretary of Education, Robert G. Scanlon [Secretary], reversed the decision of the Board and ordered appellant reinstated with full back pay.
The school district then appealed the Secretary's decision to the Commonwealth Court pursuant to Section 11-1132 of the School Code, which provides:
"The ruling of the Secretary of Education shall be final, unless, an appeal is taken in accordance with the provisions of the act of June 4, 1945 (P.L. 1388, No. 442), known as the `Administrative Agency Law'."
24 P.S. § 11-1132 (Supp. 1980-81).[2] On April 9, 1980, the Commonwealth Court entered an Opinion and Order which reversed the Secretary of Education and upheld appellant's dismissal. Clairton School District v. Strinich, 50 Pa. Cmwlth. 389, 413 A.2d 26 (1980). We granted appellant's petition for allowance of appeal and this appeal followed.
Appellant argues that the Commonwealth Court abused its discretion in overturning the decision of the Secretary of Education. Appellant perceives the Commonwealth Court's action as one where that court substituted its discretion for that of the Secretary of Education. We, however, view the matter in a different manner and believe that the Commonwealth Court must be affirmed.
The Legislature has provided:
". . . [T]he court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance *301 with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence."
2 Pa.C.S.A. § 704 (Supp. 1980-81) (emphasis added). Notwithstanding appellant's perception of the Commonwealth Court's action, we believe the court's decision in the instant case amounts to a finding that the Secretary's decision was "not in accordance with law."
The Board, following its hearing in the instant matter, made findings of fact, some of which are as follows:
"(j) That Strinich has persistently failed to maintain lesson plans in accordance with written and oral directives from Mr. Bertini, his immediate supervisor, during the time he worked in September, 1977;
"(k) That Strinich has persistently failed to maintain a grade book in the manner and form required by his supervisor, Mr. Bertini;
"(l) That on September 13, Strinich directly disobeyed his superior, Mr. Bertini, by failing to report for (cafeteria) duty as directed;
"(m) That on September 13, Strinich displayed an unreasonably abusive and hostile attitude and used abusive and hostile language towards his superior when requested to assume cafeteria duty;
"(n) That on various occasions, Strinich has been unreasonably hostile and abusive in his relationships with his superior, Mr. Bertini."
Further, the Board found that appellant had not reported to work from September 29, 1977, until the date of the hearing. Appellant had been hit in the neck by a book thrown by one of the students. The school doctor testified that he had examined appellant and that appellant could have returned to work on October 10, 1977. The Board, finding a long unexcused absence along with the specific incidents of misconduct *302 mentioned above, found that appellant had been persistently negligent and as a result, ordered his dismissal.
At the hearing before the Secretary, appellant presented additional evidence. He had requested permission to introduce, by way of written interrogatories, testimony of his physician. When the school district objected to the taking of this deposition,[3] the Secretary entered an order allowing the taking of the deposition, provided the school district could submit its own interrogatories to cross-examine the doctor. The physician's answers to the interrogatories were then made part of the record for the Secretary's consideration. Based on his review of all the evidence before him, the Secretary made the following findings of fact:
"3. On September 9, 1977 and on several occasions thereafter, [Strinich] submitted lesson plans to the Assistant Principal of the Clairton Middle School. According to the school district, the lesson plans submitted by [Strinich] were incomplete and not in conformity with the format for lesson plans contained in a bulletin and manual concerning such plans.
"4. On September 12, 1977, [Strinich] failed to report to cafeteria duty as instructed by Richard Bertini, Assistant Principal of Clairton Middle School. Apparently, [Strinich] was released from a previously assigned duty (hall duty) and was asked to report instead for cafeteria duty.
"5. On September 13, 1977, [Strinich] was requested to teach a second period class due to the illness of another teacher. According to a witness for the school district, [Strinich] became verbally hostile and argumentative in *303 response to the request. Thereafter, [Strinich] reported that he was ill and left work for the day.
"6. On September 16, 1977, [Strinich] apparently became ill and asked to be allowed to leave work early. Upon making his request, he was informed by the Assistant Principal that he would have to sign a note saying that he, [Strinich], was ill and indicating that the business office would require an excuse from [Strinich's] physician. According to the witness for the district, [Strinich] responded by saying, `This place is run like a concentration camp.', `The Nazis use the same approach when they send all the people to the ovens', and `I think you are violating my rights and I don't have to sign this note because I am without representation.'
"7. As part of his duties as a teacher in the school district, [Strinich] was required to keep a grade book. According to a witness for the district [Strinich's] grade book did not conform to the requirements of the district with regard to the keeping of grade books." (citations to the record omitted).
The Secretary did, however, consider the evidence presented by appellant's physician, whose answers to the written interrogatories indicated that appellant was absent from work after being hit by the book thrown by one of the students because appellant was unable to move his neck. Further, the doctor advised appellant not to return to work until he had completely recovered, something which had not happened by the time the hearing was held before the Board. The Secretary thus, on the basis of additional evidence, properly found that appellant had an excuse for not reporting to work, directly contrary to the finding of the Board. Further, the Secretary found that the five specifically enumerated instances of misconduct did not amount to "persistent negligence" and thus reversed the Board and ordered appellant be reinstated with full back pay.
The Commonwealth Court, adopting the findings of fact of the Secretary, reversed and stated:
*304 "Strinich's acts, as found by the Secretary, were insubordinate and hostile. They were outward expressions of an unwillingness to follow reasonable directives and to comply with direct orders. They clearly evidenced an uncooperative and a belligerent spirit. Here, the deficiencies in Strinich's lesson plans and grade books which were not in conformity with the school district's policy manual, the intemperate and irrational verbal outburst to the assistant principal when requested to sign a note that his leaving work was due to illness, the refusal to report to cafeteria duty as directed by his superior, and the refusal to teach a second period class due to the illness of another teacher, considered collectively, were of such a continuing or constant nature as to warrant being held persistent."
Clairton School District v. Strinich, supra, 50 Pa.Cmwlth. at 395, 413 A.2d at 29.
As previously stated, we find the Commonwealth Court clearly had the authority to decide that the facts as given to the Secretary compelled the court to reach a different legal conclusion from that reached by the Secretary. If the result were otherwise, the Commonwealth Court would be limited to determining whether appellant's constitutional rights had been violated, whether the agency's procedures had been violated or whether the findings of fact were supported by the record. Such a reading of 2 Pa.C. S.A. § 704 would effectively excise the language "or not in accordance with law" contained in the statute. We agree with the Commonwealth Court, when it held:
". . . even though the findings of fact are determined to have satisfied the so-called `substantial evidence' such finding must also support the conclusions of law made by the commission if its adjudication is to stand."
State Real Estate Commission v. Bewley, 1 Pa.Cmwlth. 85, 90, 272 A.2d 531, 533 (1971).
The last question we must decide is whether the Commonwealth Court was correct in its determination that the evidence presented established "persistent negligence" and thus justified appellant's dismissal.
*305 In Johnson v. United School District Joint Board, 201 Pa.Super. 375, 191 A.2d 897 (1963), the court held that a teacher's refusal to attend one open house, after being repeatedly warned to do so, would support a dismissal under persistent negligence and persistent and willful violation of school laws. Further, as the Commonwealth Court has stated:
"As a general proposition, `persistent' is defined as `continuing' or `constant'. In particular application, persistency characterizes a violation of the school laws by a professional employee where the violation occurs either as a series of individual incidences, or as one incident carried on for a substantial period of time."
Lucciola v. Secretary of Education, 25 Pa.Cmwlth. 419, 423, 360 A.2d 310, 312 (1976) (emphasis added); Accord, Swick v. School District of Tarentum Borough, 344 Pa. 197, 25 A.2d 314 (1942). We feel compelled, in light of appellant's continuous conduct during the month of September, 1977, and in light of case law defining persistent negligence, to affirm the Commonwealth Court's decision reversing the Secretary and upholding the Board's dismissal of appellant.
Order of the Commonwealth Court is affirmed.
NOTES
[1] Act of March 10, 1949, P.L. 30, art. I, §§ 101 et seq., 24 P.S. §§ 1-101 et seq.
[2] The Administrative Agency Law referred to above has been recodified in the Act of April 28, 1978, P.L. 202, No. 53, § 5, 2 Pa.C.S.A. §§ 501-08 and §§ 701-04 (Supp. 1980-81).
[3] From the arguments presented by both parties, there is some confusion concerning the nature of the Secretary's review, i.e., is the Secretary limited to traditional appellate review or can the Secretary hold a de novo hearing. We believe that the review in question encompasses aspects of both. The School Code explicitly states that the Secretary may take additional testimony. 24 P.S. § 11-1131. To the extent that additional testimony is taken, the Secretary may make additional findings of fact. If no such additional testimony is taken, however, the Secretary's review is limited to traditional appellate review. Compare, Jones v. Workmen's Compensation Appeal Board, 25 Pa.Cmwlth. 546, 551, 360 A.2d 821, 824 (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386169/ | 49 Md. App. 328 (1981)
431 A.2d 755
ROBERT L. DENNINGHAM
v.
JUDITH DENNINGHAM.
No. 1602, September Term, 1980.
Court of Special Appeals of Maryland.
Decided July 10, 1981.
The cause was argued before WILNER, COUCH and MACDANIEL, JJ.
*329 Robert L. Denningham, in proper person, appellant.
Douglas I. Malcom for appellee.
WILNER, J., delivered the opinion of the Court.
The parties to this dispute were married on November 9, 1963. They separated July 15, 1977, having in the meanwhile produced two children Coren, born 1965, and Elena, born 1968. Prior to their actual separation, they signed a written Separation Agreement providing, among other things, that appellee (the wife) would have custody of the children and that appellant would pay to her $300 every two weeks for their support.
This litigation ultimately proceeded upon appellee's supplemental bill in the Circuit Court for Prince George's County, seeking a divorce a vinculo matrimonii, alimony, incorporation of the terms of the separation agreement into the decree, and counsel fees. Virtually everything, including custody, was in dispute. On June 29, 1979, apparently with the acquiescence of both parties, the court ordered its Mental Hygiene Consultation Service to conduct an investigation for the purpose of "evaluating everyone in the Denningham family" and to file a report with the court. It is evident from what subsequently occurred that this investigation, and the report, was ordered primarily in connection with the issues of custody and visitation; and we shall hereafter refer to it as the "custody investigation."
On July 27, 1979, prior to completion of the custody investigation but following an evidentiary hearing, the court proceeded to dispose of the other matters in dispute. It entered a decree that day that (1) granted appellee a divorce a vinculo matrimonii; (2) allowed temporary custody of the two minor children of the parties to remain with appellee; (3) determined that a $7,670 judgment be entered against appellant for unpaid child support required by the couple's separation agreement; (4) ordered appellant to pay $433 per month as temporary child support; and (5) required that the parties be evaluated by the Circuit Court Mental Health and *330 Hygiene Service preparatory to any "final" custody determination.[1]
On August 15, appellant discharged his counsel and advised the court clerk that he would thenceforth be representing himself. On September 20, the court routinely sent a notice to counsel (but not to appellant) advising that the custody investigation report had been received, that "counsel" should contact the Mental Hygiene Consultation Service "for information on this report," and that the matter would be scheduled for further hearing. Appellant, of course, was unaware of the report.
On September 25, 1979, appellant filed a motion to revise the July 27 decree, seeking to reduce the amount of the monetary judgment entered against him therein. On the same day, he noted an appeal to this Court from that decree.[2]
On November 8, 1979, apparently in anticipation of the further proceeding pertaining to custody and visitation, the court filed a "Memorandum of Court," calling attention to the custody investigation report and stating that "[i]nasmuch as this report is confidential and the defendant ... is now representing himself in this matter, the court has decided in all fairness that the contents of the aforementioned report will not be made available to counsel for the plaintiff or the defendant."
The parties returned to court on December 7, 1979, presumably in connection with appellant's motion to revise *331 the monetary judgment. In view of appellant's appeal, however, the court declined to consider the motion or even the pending matters of "permanent" custody and visitation. It did consider appellant's request to read the custody investigation report, but again rejected that request. In so doing, it stated "for the record," its reason: "that these reports are confidential, they are not designed for the parties, they are designed for the attorneys. Mr. Denningham was represented during the trial and he is now not represented, and I have decided that in fairness, since the report was prepared for my benefit, I would read the report and I would not let you read the report, either." (Emphasis supplied.)
Appellant dismissed his September 25 appeal to this Court on December 20, 1979. Nothing happened, however, for over eight months. On September 3, 1980, the parties returned to court in connection with the matters of custody, visitation, child support, and appellant's year-old motion to revise the monetary judgment, which motion the court quickly denied. The balance of the two-day proceeding concerned custody and visitation, and was taken up primarily with testimony presented by and on behalf of appellant, whose complaint was that appellee has been endeavoring to alienate the children from him. The court interviewed the children in chambers, alone apparently without even a court stenographer[3] and announced that "they are adamant that they want to live with their mother" and that even weekend overnight visits "is going to be difficult for them."
At the conclusion of the proceeding, the court, mentioning both its own interview with the children and the custody investigation report and recommendation,[4] determined that *332 "there really has been no showing that I should take the children away from the mother and place them with [appellant]." On October 17, 1980, the court entered an order awarding permanent custody of the children to appellee, requiring appellant to pay child support of $433 a month, establishing a specific visitation schedule, and directing the Mental Hygiene Consultation Service to review the case in five months and again in ten months.
Appellant responded with a motion for rehearing which was denied on November 3, 1980. The next day, he filed this appeal, raising eight issues that go to virtually everything the court decided. He complains about the money judgment, visitation, custody, and child support on a variety of constitutional, procedural, and substantive grounds. In the interests of clarity, we have divided the issues raised by appellant into two categories those that question the monetary judgment of July 27, 1979, and those that attack the custody, visitation, and child support decisions.
The Monetary Judgment
Appellant's first three complaints concern the entry of the monetary judgment for child support arrearages. Two of them attack the judgment directly on procedural grounds; the third deals with the court's refusal to grant appellant's motion to set it aside on the ground that the separation agreement from which the judgment arose was induced by fraud.
The money judgment challenged here was part of the July, 1979, divorce decree that resolved all pending matters between the parties except permanent custody,[5] which raises the initial question of whether the current appeal of the money judgment filed more than a year after that *333 judgment was entered is a timely one under Maryland Rules 605a and 1012.
In Pappas v. Pappas, 287 Md. 455 (1980), the Court of Appeals reminded both bench and bar that Maryland Rule 605a is a general rule and that it applies to domestic cases. With one possible caveat, which it unfortunately left somewhat imprecise, the Court made clear that a divorce decree which adjudicates less than all of the claims pending before the trial court is not a final and appealable one except to the extent that the determination and direction required under the rule is validly made, and that, unless dealing with an order for which an interlocutory appeal is allowed under Courts article, § 12-303, no part of such a decree may be appealed until finality is achieved through the resolution of the remaining issues.
The caveat referred to appears on p. 463 of 287 Md. The decree at issue in Pappas granted a divorce and awarded alimony, child support, guardianship of the minor children, and counsel fees, but reserved ruling on the issues of property division, custody, and the amounts of alimony, child support, and counsel fees. Absent a Rule 605a determination and direction, the Court concluded that too much had been left open that less than all the claims had been decided and that no part of the decree was final or appealable. It then said, however:
"For purposes of this opinion it is not necessary for us to determine whether the reservation of the amount of counsel fees or the reservation of the amount of alimony and support without more would render the decree other than final. It is sufficient for our purposes to hold that where the issue of property division, the amount of counsel fees, and the amount of alimony and support remain to be determined, the judgment was not final." (Emphasis in original.)
The Court did not explain in this caveat what is so special about the amounts of support (spousal or child) that might exempt a reservation of those items from the operation of the *334 rule. Was it suggesting perhaps that those items may be different because they are always subject to the further jurisdiction of the court, and therefore never achieve the status of true finality? If so, it would seem that orders of child custody and visitation should be treated likewise.
Read literally (and until Pappas rather consistently), Rule 605 a would seem to admit of no exceptions that a decree which fails to resolve a pending issue in dispute, whether support or custody, does indeed adjudicate "less than all the claims" and therefore does "not terminate the action as to any of the claims" unless the authorized determination and direction is made. See Estep v. Estep, 285 Md. 416, 423-24 (1979).
The Court's suggestion in Pappas that there might be exceptions to the rule, at least with respect to support, ought to be clarified. Litigants (and their attorneys) must have some assurance as to whether a divorce rendered by a decree that leaves open an issue of support (or custody or visitation) is or is not final. There is more at stake than the timeliness of appeals, although that, of course, is the heart of the matter.
In this case, it makes no practical difference whether the current appeal is timely. We have examined the substance of appellant's complaints about the money judgment and find them to be without merit. The trial court made its findings based on disputed evidence, and we find neither clear error in the findings nor an abuse of discretion in the court's declining to revise them. Thus, whether the current appeal is timely by virtue of Maryland Rule 605a or untimely by reason of Maryland Rule 1012, appellant will not prevail.
Custody, Visitation, and Child Support
Appellant asserts that the court's decisions on custody, visitation, and child support deprived him of various constitutional rights. Appellee responds that appellant failed to raise these issues below. With one exception, *335 appellee is correct and we will not consider those issues. Maryland Rule 1085.
The one exception is appellant's assertion that he was denied due process of law when the court considered the custody investigation report in making its custody determination (and the concomitant child support and visitation conclusions) after it had refused to permit him to see the report. We agree that the court erred in that regard.
We must approach the use of custody investigation reports with a certain balance. The opinions of this Court and the Court of Appeals are replete with statements encouraging chancellors to utilize such reports and attesting to their value in arriving at custody determinations. See, for example, Ouellette v. Ouellette, 246 Md. 604 (1967); Shanbarker v. Dalton, 251 Md. 252 (1968); Deckman v. Deckman, 15 Md. App. 553 (1972); Powers v. Hadden, 30 Md. App. 577 (1976). See also Okpaku, Psychology: Impediment or Aid in Child Custody Cases, 29 Rutgers L. Rev. 1117 (1976). Indeed, it is the very reliance placed on these reports that creates the problem.
On the one hand, whether conducted by probation, social service, or medical agencies, custody investigation reports nearly always contain material that is sensitive and highly personal, material that ought to be kept confidential. Medical data, psychiatric opinions, details pertaining to lifestyles and intimate relationships are often recorded, as are the results of interviews with the children whose custody is at issue. That is why, in most cases, these reports are submitted to the court under seal and are dealt with differently than other exhibits in the case. It is also why the court may, in some instances, have a serious concern about allowing even the parties to see the contents of the report.
The counterweight, however, is that these reports consist largely of hearsay declarations often double- or triple-level hearsay as well as opinions of various social workers, medical or paramedical personnel, psychologists, teachers, and the like, which may or may not have a reasonable basis. Statements contained in a custody *336 investigation report have no special indicia of reliability. They are generally not under oath and often emanate from people having overt or covert bias. In many instances, the statements represent subjective feelings and perceptions rather than objective observations or empiric data. Their usefulness to the court is only as strong as their reliability, and that requires that they be subject to challenge in essentially the same manner as any other critical evidence.
We decided as much, at least implicitly, in Draper v. Draper, 39 Md. App. 73 (1978). In that case, a custody investigation report recommended that custody be awarded to the father. Counsel for the parties had read the report, although they had not been given copies of it. The father offered the report in evidence without calling its author as a witness, apparently without objection. In her case, the mother sought to call the author for cross-examination, not desiring to vouch for or be bound by the author's testimony. We concluded that the chancellor erred in refusing that request. See also Annot., Right In Child Custody Proceedings To Cross-Examine Investigating Officer Whose Report Is Used By Court In Its Decision, 59 A.L.R. 3d 1337 (1974). Certainly, if it is error to deny the right to cross-examine the author of the report, it is even more blatant and grievous error to hide the report entirely from the parties and yet rely on it in making a decision.
This, indeed, is the uniform view that has been taken wherever the question has arisen. Absent consent or waiver, it is error for a court to admit and consider a custody investigation report without affording the parties an opportunity to read and challenge it. See Kightlinger v. Kightlinger, 439 P.2d 614 (Ore. 1968); Williams v. Williams, 130 N.E.2d 291 (Ill. App. 1955); Lewis v. Lewis, 534 S.W.2d 800 (Ky. 1976); Gilmore v. Gilmore, 341 N.E.2d 655 (Mass. 1976); Mazur v. Lazarus, 196 A.2d 477 (D.C. 1964); Scott v. Scott, 415 A.2d 812 (D.C. 1980); Oltmanns v. Oltmanns, 121 N.W.2d 779 (Minn. 1963); In Re S---- M---- W----, 485 S.W.2d 158 (Mo. App. 1972); Hosking v. Hosking, 318 So. 2d 559 (Fla. App. 1975); Comment, Use of Extra-Record Information in Custody Cases, 24 U. Chicago L. Rev. 349 *337 (1957); Annot., Consideration of Investigation by Welfare Agency or the Like in Making or Modifying Award as Between Parents of Custody of Children, 35 A.L.R. 2d 629 (1954). Cf. Kesseler v. Kesseler, 225 N.Y.S.2d 1 (N.Y. 1962); Larson v. Larson, 140 N.W.2d 230 (Wis. 1966); and Eastman v. Eastman, 626 P.2d 1238 (Kan. App. 1981). See also Cornwell v. Cornwell, 244 Md. 674 (1966).
These decisions merely make manifest one of the cornerstones of our system of justice: the right of the parties to be aware of all of the evidence considered by the trier of fact in making an adjudicatory determination and to have the opportunity to challenge and answer that evidence. "Due process" encompasses that principle and requires that if a court bases its custody decision, even in part, on an independent report, the parties or their attorneys must be given the opportunity to examine the report and must be allowed the opportunity to cross-examine the investigator and to produce outside witnesses to establish any inaccuracies the report may contain. However sensitive the material may be, a party has a right to know what evidence is being considered by the court in judging his cause. A custody case can no more be tried and decided upon secret ex parte evidence than any other proceeding.
In this case, however, the court's error, though of constitutional dimension, was harmless. In order to justify a change of custody, appellant had the heavy burden of demonstrating "a strong reason affecting the welfare of the child." Sartoph v. Sartoph, 31 Md. App. 58 (1976), cert. denied, 278 Md. 732. "The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change." Id. at 67.
The children daughters aged twelve and fifteen had been in appellee's custody for the entire three years since the parties separated and, as we have noted, they expressed to the court their clear and unequivocal desire to remain with *338 appellee. There was no evidence in the case seriously suggesting that they were not being properly cared for or that their needs were not being adequately met.
Unlike many reports of this type, the custody investigation reports in question here relied primarily on interviews with the parents and the two children, and not on the statements or opinions of third parties. They merely recited what the court already knew from its own interviews with the children and from the testimony presented by the parties. The most significant statement in the reports was that the children earnestly desired to remain with their mother, a desire of which appellant was fully aware. The material contained in the reports at issue here was basically cumulative and introduced nothing new of any significance that was, or could have been, relied upon by the court in determining custody. That is why we find, in this particular circumstance, that the error was harmless. Cf. Daitoku v. Daitoku, 39 Haw. 276 (1952) and cases collected in Annot., supra, 59 A.L.R. 3d 1337, 1349 (§ 4).
Judgment affirmed; appellant to pay the costs.
NOTES
[1] It is not clear from the record why this last item was necessary. The order of June 29 ordered the investigation and directed the parties to report to the Service's Intake Office within forty-eight hours. The Service's report, dated September 18, 1979, does not indicate when the interview with the parties occurred.
[2] The court's decree was originally dated August 27, 1979, although the docket entries show that it was entered on July 27, 1979. At some point, the error was caught and the court amended the decree by striking the word "August" and inserting the word "July." It is clear that the docket entry is correct and that the decree was actually signed and filed on July 27, 1979. Nevertheless, on October 5, 1979, in consideration of the error, the court issued an order "that the defendant's Order for Appeal filed herein on September 25, 1979, be treated as having been timely filed...." Because appellant's present appeal does not rest upon the September 25 order for appeal, it is not necessary for us to consider whether that order was a valid or proper one. See Maryland Rule 1012.
[3] Because the private interview and the exclusion of even a court reporter was without objection and because appellant makes no complaint about it in this appeal, the correctness of that procedure is not before us. We do, however, take this opportunity once again to stress our belief that, even though the parties can affirmatively waive the presence of a reporter, the better practice is to have a reporter present in order that a complete record will be available on appeal. See Nutwell v. Prince George's County Department of Social Services, 21 Md. App. 100 (1974).
[4] The record reveals that a "follow-up" report was rendered by the Mental Hygiene Consultation Service on November 10, 1980, based upon an interview with the parties and the children on October 16, 1980.
[5] Appellant suggested at oral argument that the issues of child support and visitation were also left unresolved. We do not agree. Naturally, had the court ultimately awarded custody of the children to appellant, adjustments in the child support and visitation orders would have been required; but those matters, as with custody, are always subject to further court order. Insofar as open, current disputes are concerned, the decree settled everything except "permanent" custody. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386134/ | 243 F. Supp. 436 (1965)
WATKINS MOTOR LINES, INC., Plaintiff,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants,
and
Milne Truck Lines, Inc., Denver-Albuquerque Motor Transport, Inc., and Ringsby Truck Lines, Inc., Intervening Defendants.
Civ. No. 620L.
United States District Court D. Nebraska.
June 9, 1965.
*437 Duane W. Acklie, of Nelson, Harding & Acklie, Lincoln, Neb., for plaintiff.
Arthur J. Cerra, Washington, D. C., for defendants United States and Interstate Commerce Commission.
James C. Hardman, Chicago, Ill., for intervening defendants Denver-Albuquerque Motor Transport, Inc. and Milne Truck Lines, Inc.
Douglas McHendrie, Denver, Colo., for intervening defendant railroads.
Before JOHNSON, Circuit Judge, and ROBINSON and VAN PELT, District Judges.
VAN PELT, District Judge.
Watkins Motor Lines, Inc. (plaintiff or Watkins) instituted this action to set aside and enjoin the enforcement of certain orders of the Interstate Commerce Commission (Commission) entered in a proceeding before that agency entitled *438 Watkins Motor Lines, Inc., Extension Four States, Docket No. MC-95540.
By an application pursuant to § 207 (a) of the Interstate Commerce Act [49 U.S.C. § 307(a)], filed December 26, 1961, as amended, Watkins sought a certificate of public convenience and necessity authorizing operations in interstate commerce as a common carrier by motor vehicle, over irregular routes, of meats, meat products, meat by-products, dairy products,[1] articles distributed by meat packinghouses, and frozen foods, from Denver, Colorado, to points in New Mexico, Arizona, Nevada and California. A public hearing on the application of Watkins was held on a consolidated record with Colorado-Arizona-California Express, Inc., Common Carrier Application; No. MC-124065 and Little Audrey's Transportation Company, Inc., ExtensionSeven States; No. MC-108953 (Sub. No. 34). A number of motor carriers, as well as rail carriers appeared in protest to the application.[2]
In a recommended report and order, filed June 13, 1962, the examiner entered findings of fact and concluded and recommended that the application of Watkins be denied. The basis for the recommended denial was the finding that "public convenience and necessity do not require the operations for which the authority is sought.[3]"
Plaintiff filed exceptions to the report and recommended order. On December 4, 1962, the Commission, Division 1, found that plaintiff had failed to establish that the present and future public convenience and necessity required the proposed operation and entered an order denying the application. On December 19, 1962, plaintiff filed a "Petition for Finding of General Transportation Importance," which was denied by the Commission in an order served February 21, 1963. Watkins also filed a "Petition for Re-hearing" on January 2, 1963, which was denied by an order entered April 11, 1963, by the Commission, Division 1, acting as an Appellate Division.
Thereupon this action was commenced to set aside the orders of the Commission and remand the matter for rehearing. Watkins asks, in the alternative, that this court instruct the Commission to grant the requested application.[4] The action was filed on May 16, 1963 and on June 10, 1963, the court issued a temporary restraining order enjoining the Commission from cancelling the temporary authority held by Watkins. Jurisdiction being noted under 28 U.S.C. §§ 1336 and 2325, this matter now stands ready for decision.
I
The basic test in such a determination as this is set out in the Watkins *439 companion case of Colorado-Arizona-California Express, Inc. v. United States, 224 F. Supp. 894 (D.Colo.1963)[5] wherein the court states:
"The adequacy of the existing transportation service is one of the `basic ingredients' in the determination of public convenience and necessity and an applicant for a certificate of convenience and necessity has the burden of showing by evidence that the proposed service is or will be required by the present or future public convenience and necessity." 224 F. Supp. at 896-897.
It should be noted that applicant has not only the duty of producing an affirmative showing that the proposed operation will be of beneficial value to the community but also incurs the added burden of showing that the operation is a necessity. The latter is generally ascribed to a lack of adequate existing facilities. Hudson Transit Lines, Inc. v. United States, 82 F. Supp. 153 (S.D.N.Y.1948); Sinett v. United States, 136 F. Supp. 37 (D.N.J. 1955); Capital Transit Co. v. United States, 97 F. Supp. 614 (D.C.1951). See also Inland Motor Freight v. United States, 60 F. Supp. 520 (E.D.Wash.1945).
The initial issue to be determined, therefore, is whether applicant has sufficiently met his standard of proof. This is not a determination anew however, but rather inquiry is directed to whether the Commission has observed the requirements of the law in the conduct of their proceedings and additionally, whether the conclusions as to public convenience and necessity have a rational basis in the facts found, which must be supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); Interstate Commerce Commission v. Union Pac. R. R. Co., 222 U.S. 541, 32 S. Ct. 108, 56 L. Ed. 308 (1912); Capital Transit Co. v. United States, supra.
The testimony of all supporting shippers concerning the need for transportation into the seven western states involved in the consolidated proceeding revealed the following customer points, identified by city and the related shipper.
Arizona:
(1) Flagstaff (Farmer Pete Packing Company)
(2) Winslow (Farmer Pete Packing Company)
(3) Phoenix (Farmer Pete Packing Company, Colorado Pizza Company, Cudahy Packing Company, United Fryer & Stillman, Inc.)
California:
(1) San Diego (Cudahy Packing Company, Colorado Pizza Company, United Fryer & Stillman, Inc.)
(2) Los Angeles (Colorado Pizza Company, United Fryer & Stillman, Inc., Carter Meat Company)
(3) San Francisco (Carter Meat Company, United Fryer & Stillman, Inc.)
(4) Burbank (United Fryer & Stillman, Inc.)
(5) Oakland (United Fryer & Stillman, Inc.)
(6) Marysville (United Fryer & Stillman, Inc.)
(7) San Luis Obispo (United Fryer & Stillman, Inc.)
Idaho:
(1) One unidentified city.
Nevada:
(1) Las Vegas (United Fryer & Stillman, Inc.)
*440 New Mexico:
(1) Gallup (Farmer Pete Packing Company)
(2) Albuquerque (Colorado Pizza Company)
Oregon:
(1) Portland (United Fryer & Stillman, Inc.)
Washington:
(1) Seattle (United Fryer & Stillman, Inc.)[6]
It should be noted at this time that the C-A-C case considered the question of existing carrier service to the same transportation points as set out above, having before it the same record as this court.[7] A three-judge court in the District of Colorado found on the facts present in this case that there was substantial evidence in the record to support the conclusion of the Commission. While we are not bound by that determination, the opinion in C-A-C is given the fullest consideration by this court in reaching the conclusion set forth below.
Plaintiff takes exception with the Commission's finding of satisfactory service in relatively few instances. It is, however, asserted that the finding of satisfactory service was erroneous due to the lack of single-line service available to meet the requests of two of the supporting shippers for a carrier able to make a delivery stop at Phoenix, Arizona on traffic moving to San Diego, California. Although this general assertion is not defined with any exactitude, Watkins is apparently referring to testimony of representatives of Cudahy Packing Company (Cudahy) and United Fryer & Stillman, Inc. (United Fryer) to the effect that they could not get single-line service into San Diego with a stop-off at Phoenix. The Cudahy representative, however, did testify that the best service utilized by their company was an interline service formerly rendered by a shipper whose operations had since ceased.
A representative from United Fryer testified that it was difficult to get a carrier to go into Phoenix and that their company had necessarily been forced to combine Phoenix shipments with those to California. The reason stated for this lack of carrier service was the belief that very few carriers went into Phoenix. Protestant testimony later revealed, however, that his city was served by as many as three truck lines by interlining with other carriers and by single-line service. Further, the representative from United Fryer related that their company had no objection to using other services and would use all available services.
*441 Plaintiff finds additional support for its contention that the Commission erred in finding satisfactory service in the testimony of the Farmer Pete Packing Company (Farmer Pete) representative, who stated that the company had trouble getting carriers to transport shipments into the Southwest. Witness, on cross-examination, limited the trouble point to Gallup, New Mexico, and then further testified that Farmer Pete had found no service going into New Mexico. Evidence was later adduced that Gallup was serviced by Illinois-California-Express and Navajo Freight Lines from Denver by direct single-line service in addition to interline service rendered by The Santa Fe Trail Transportation Company and Denver-Albuquerque Motor Transport Company. The same witness testified that Farmer Pete also had trouble getting service into Phoenix, Arizona, but the witness had never called on Ringsby Truck Lines for service and admitted that if service by Ringsby were available to Phoenix she would have no objection to using that service.
Specifically, the Commission found that all of the destination points in question were served by single-line operations of one or more of the protestants with the exception of Phoenix, Arizona, which had no single-line service available to meet the request of United Fryer for a delivery stop at Phoenix on traffic moving to San Diego. By interlining, however, many of the protestants can reach all of the points of distribution requested by the supporting shippers.[8] This is the distinguishing feature of this case from the case of Midwest Coast Transport, Inc., Extension Caribou, Maine, No. MC 113843 (Sub. No. 40), 15 F.C.C. Par. 35,566 (1963), relied upon by Watkins. In that case the protestants could not render complete shipper service even collectively while here it can generally be rendered by single-line service and all points served by interlining.
The Colorado court in the C-A-C case relied on Ayer v. United States, 139 F. Supp. 440 (N.D.Ga.1956) in affirming the Commission's finding that existing rail and motor service was adequate. That case (Ayer) supported the existing facilities as "reasonably adequate" where the evidence indicated that all but one of the destination points required by shippers were available by interlining on a two carrier basis and the final terminal on a three carrier basis. The present facts represent an even stronger case for respecting the Commission's findings and conclusions inasmuch as most of the terminal points in question are served on a single line basis with the exception of Phoenix on shipments to San Diego and two California shipment points.
But fundamentally this case can be even more simplified. In the Ayer case the controversy was, as here, the adequacy of existing facilities; therein plaintiff was disputing the Commission's finding that two carrier and three carrier service was adequate. In this case, however, the Commission's finding was simply that the supporting shippers were not utilizing the available facilities. The dispute was not directed at interlining arrangements particularly, but testimony offered indicated that no transportation was available to needed points or available carriers could not take shipments at the time requested. The Commission's finding was that the shippers were not adequately utilizing the motor carriers now authorized and willing to meet their transportation requirements. In some instances this was attributed to the fact that the shippers were not aware of the carrier's availability.[9] We conclude the Commission's finding on this point is amply supported by the evidence and we *442 choose not to disturb it. Colorado-Arizona-California Express, Inc. v. United States, supra. In Newman and Pemberton Corp., Extension, No. MC-102541 (Sub. No. 9), 15 F.C.C. Par. 35,534 (1961), cited by Watkins, the question was one of adequacy of joint line service and circuity of deliveries wherein shippers were forced to change the method of distribution. None of these factors are involved in the instant proceeding.
Another point disputed by the plaintiff concerns the alleged inadequacy of existing facilities, to-wit: late spotting of trucks at shipper's dock, delays up to six hours in delivery to California points and resulting overtime paid to shipper's employees. In support of its position plaintiff cites Alterman Transport Lines, Inc., Extension, No. MC-107107 (Sub. No. 76), 71 M.C.C. 375 (1957) and Penn Dixie, Inc., Extension, No. MC-110190 (Sub. No. 22), 69 M.C.C. 291 (1956). The Alterman situation involved the quantity of transportation available for less-than-truckload shipments rather than the quality of service rendered. In Alterman lack of available carriers for less-than-truckload shipments even resulted in loss of prospective customers for the shippers. Lack of available carriers is certainly not involved in the present application. The Penn Dixie case also involved lack of equipment, and to the extreme that some shippers were forced to stop production. An additional distinguishing feature of the Penn Dixie report is that the evidence reflected the facilities of practically all motor carriers supplying protective service had been utilized, which fact is not evident in the instant proceeding. Once more we make reference to the C-A-C case wherein that court observed:
"The Commission found all of the protesting carriers to be willing and able to provide services for the supporting shippers, and there is nothing in the record to cast doubt upon this finding." 224 F. Supp. at 899.
Watkins further contends that the inadequacy of service available is evinced by testimony that twelve shipments were delayed by Ringsby in transporting commodities to California terminals. The Commission concluded that the carrier had generally provided shipper with adequate transportation and summarily dismissed the twelve delays in light of the number of shipments made and the additional availability of other carriers that could serve the shipper. These conclusions are based on adequate findings supported by the evidence. Colorado-Arizona-California Express, Inc. v. United States, supra. See United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821 (1946).
The final argument of Watkins, insofar as the Commission's finding of satisfactory service is concerned, is that the use of inter-changing or interlining was considered by the Commission in finding adequate service available. We initially note that this assertion is severely minimized by the finding of the examiner, affirmed by the Commission's order, that all of the service points named by the shippers are served by single line operations of one or more protestants, with the exception of stop-off deliveries to Phoenix with a terminal point of San Diego, California.[10] This specific route is served by a number of protestants on an interlining basis with other carriers. We conclude, as did the court in the C-A-C case, that there is absolutely no merit to plaintiff's argument that the Commission erred in considering interline arrangements with carriers who did not appear as protestants to show affirmative proof they were willing and able to interline with the existing carriers. See also, Curtis, Inc. v. United States, 225 F. Supp. 894 (D.Colo.1964); *443 Robbins v. United States, 204 F. Supp. 78 (E.D.Pa.1962).
II
A second claim of plaintiff is that the Commission erred in failing to grant Watkins a requested rehearing, or further hearing in the matter, for the purpose of showing certain fundamental changes in the transportation situation of Denver shippers.
It is a well established principle that petitions for rehearing or reconsideration are addressed to the sound discretion of the Commission, and any denial thereof is not open to question unless it is shown that there has been a clear abuse of such discretion. United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821 (1946). It is not within the purview of this court's power to determine whether a different result might have been reached had the same proffered evidence been submitted for rehearing. The court's only function is to determine whether the Commission has abused its discretion in denying the petition. The Commission stated in its order the petition was denied, there being "no sufficient cause." This summary dismissal of the request is clearly acceptable. Colorado-Arizona-California Express, Inc. v. United States, supra; Convoy Co. v. United States, 200 F. Supp. 10 (D.Or.1961); Yourga v. United States, 191 F. Supp. 373 (W.D.Pa.1961).
For the reasons above set forth[11] we conclude that plaintiff should be denied its requested relief and that the orders of the Commission be permitted to remain unaltered. And inasmuch as the court is denying plaintiff relief, the order of June 10, 1963 temporarily restraining enforcement of the Commission's order cancelling plaintiff's temporary authority will be vacated.
NOTES
[1] No proof is adduced in the record in support of this commodity although the lack thereof has no determinative effect on the decision reached herein.
[2] Those motor carriers appearing specifically in protest to this application were Pacific Intermountain Express, Inc., Milne Truck Lines, Inc., Rio Grande Motorway, Inc., Denver-Albuquerque Motor Transport, Inc., Red Ball Motor Freight, Inc., Ringsby Truck Lines, Inc., Midwest Coast Transportation, Inc., Illinois-California Express, Inc., Curtis, Inc., Goldstein Transportation & Storage, Inc., Santa Fe Trail Transportation Company, Colorado-Arizona-California Express, Inc., and Navajo Freight Lines, Inc., Rail carriers in the Pacific Southwest Railway Association and Class I Rail Carriers in the Southwestern Territory also appeared in protest to this application.
[3] The application of Colorado-Arizona-California Express, Inc. was denied for the additional reason that the company was not fit, willing or able to perform the proposed service.
[4] The court notes that such a prayer for relief exceeds the court's scope of authority. Courts of review have no authority to order an administrative body, such as the Interstate Commerce Commission, to perform a discretionary act, nor does the court have the authority to perform the act itself. Pan-Atlantic S.S. Corp. v. Atlantic Coast Line R. R. Co., 353 U.S. 436, 77 S. Ct. 999, 1 L. Ed. 2d 963 (1957).
[5] The Colorado-Arizona-California Express case, hereafter referred to as C-A-C, is closely related to the instant application inasmuch as both applications were based upon the record in a consolidated hearing, both applicants had a number of the same supporting shippers and both requests for certificates were premised on a number of identical grounds. The C-A-C opinion, wherein a three-judge Colorado court per Judge Doyle refused to set aside a Commission order denying the requested authority, is necessarily brought into the scope of this decision for obvious reasons.
[6] Watkins is requesting authority to service only the states of Arizona, California, Nevada and New Mexico.
[7] As noted by the court in the C-A-C opinion, the record reflects that the following carriers serve the named points:
Arizona:
(1) Flagstaff (ICX, Navajo, Ringsby)
(2) Winslow (ICX, Navajo)
(3) Phoenix (Navajo, Ringsby, Milne)
California:
(1) San Diego (Ringsby, PIE, Milne [through interchange.])
(2) Los Angeles (ICX, Navajo, Milne, PIE, Ringsby)
(3) San Francisco (Navajo, Ringsby, PIE)
(4) Oakland, (Navajo, Ringsby, PIE)
(5) Burbank (Milne)
(6) Marysville (Ringsby [by interchange with its affiliate Fortier])
(7) San Luis Obispo (Ringsby [by interchange with its affiliate Fortier])
Idaho:
(1) Unidentified city (United-Buckingham, PIE, Ringsby)
Nevada:
(1) Las Vegas (Milne, Ringsby, PIE, Navajo)
New Mexico:
(1) Gallup (ICX, Navajo, Denver-Albuquerque)
(2) Albuquerque (ICX, Navajo, Denver-Albuquerque, Rio Grande Motor Way [through interchange], Santa Fe Trail)
Oregon:
(1) Portland (United-Buckingham, PIE, Ringsby)
Washington:
(1) Seattle (United-Buckingham, PIE, Ringsby)
[8] Report and Order of the Commission, Division 1, page 17, Cudahy Packing Co. also seeks intermediate stops at Phoenix on freight destined to California. Marysville and San Luis Obispo, California are served by Ringsby by using its affiliates as well as by other firms interlining.
[9] The examiner concluded that the supporting shippers "are not familiar with available service, or use such available service and have no substantial complaints against the service." Report and Recommendation of Examiner, Charles B. Heineman, served June 13, 1962.
[10] The court does note that Marysville and San Luis Obispo, California are served by Ringsby through the use of its affiliates.
[11] Plaintiff makes the additional argument, if not directly then most certainly by inference, that the Commission's determination was inconsistent with other Commission reports. We note, however, without any additional comment that "[a]n administrative body, such as the Commission, is not bound by the rule of stare decisis, and inconsistency of its holding with prior holdings in and of itself does not make the decision arbitrary." Ace Lines, Inc. v. United States, 197 F. Supp. 591, 599 (S.D.Iowa 1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386142/ | 49 Md. App. 349 (1981)
431 A.2d 749
DONNA POWLEY
v.
JOHN OWENS.
No. 1625, September Term, 1980.
Court of Special Appeals of Maryland.
Decided July 10, 1981.
The cause was argued before GILBERT, C.J., and MOORE and WEANT, JJ.
Fletcher P. Thompson, Assistant State's Attorney for Dorchester County, for appellant.
No appearance by appellee.
GILBERT, C.J., delivered the opinion of the Court.
When Shannon Powley was born on June 22, 1978, fate threw her three fast, hard strikes. The "first strike" on Shannon was that she was born out of wedlock; the "second strike" was that her birth was premature, in that she was *350 delivered after a pregnancy term of five months and 22 days. As a result, Shannon was transported from Dorchester General Hospital to Sinai Hospital in Baltimore City in order to receive the medical care necessary to keep her alive. The "third strike" was that her biological father refused to pay his share, namely $8,375.49, of the medical bill which "was just short of $18,000.00." The third "strike" is vicariously on Shannon because her mother will be called upon to pay the entire bill, thus, depriving the child, at least indirectly, of the benefit that sum would have brought to the home had it not been paid to the hospital.
We are powerless to do anything with respect to the "first strike," except to note that the Legislature and the courts have made great strides toward removing the social stigma, if any, that attaches to the innocent child born out of wedlock. The two hospitals provided the medical care necessary to sustain young Shannon's life and, thereby, eradicated "strike two." The "third strike" took the form of an order signed by the Circuit Court for Dorchester County. We think that "strike" was a "bad call," and we reverse it for the reasons hereinafter set forth.
I.
THE FACTS
On August 26, 1980, the appellee was found, by a jury, in a paternity proceeding held in the circuit court, to be the father of Shannon. The appellant petitioned the circuit court to "order... [the appellee] to pay a substantial portion of the [hospital bill] balance." On September 25, 1980, the court denied the request but directed the appellee to pay $25 per week for Shannon's support.
II.
THE ISSUES ON APPEAL
Appellant poses two questions for our consideration:
1. Is the father of a child, born out of wedlock, *351 legally required to pay for the medical costs that are incurred in order to keep the infant alive?
2. May the court require the father of such a child to pay for the lying-in expenses of the mother of the child?
III.
THE LAW
The General Assembly declared, in Laws 1963, ch. 722, § 1, now codified as Md. Ann. Code art. 16, § 66A:
"The General Assembly declares its conviction that the State has a duty to ameliorate the deprived social and economic status of children born out of wedlock and that the policies and procedures as contained in this subtitle and in § 66 of this article relative to establishing the paternity of such children, determining who shall have their custody or guardianship and who shall be charged with their maintenance and support are socially necessary and desirable, having as their threefold purpose (1) the promotion of the general welfare and best interests of such children by securing to them, as near as practical, the same right to support, care and education as legitimate children; (2) the imposition upon both parents of such children the basic obligations and responsibilities of parenthood and (3) the simplification of procedures." (Emphasis supplied.)
Section 66H of the same article provides in pertinent part:
"(a) ... (1) If the court or jury ... finds against the defendant alleged to be the putative father, the court shall pass an order declaring the defendant to be the father of the child and providing for the support and maintenance of the child .... (Emphasis supplied.)
*352 (3) In addition to providing for support and maintenance of the child, the order also may require the defendant to pay all or any part of the mother's medical and hospital expense for her pregnancy, confinement, and recovery ... and may award counsel fees to the attorney representing the complainant or petitioner...."
The Court of Appeals, in Dorsey v. English, 283 Md. 522, 529, 390 A.2d 1133, 1138 (1978), declared that "[t]he clear intent of the statute is to impose upon both parents the obligation of parenthood by insuring that illegitimate children will enjoy the same right of support as legitimate children."
This Court, in Williams v. Williams, 18 Md. App. 353, 356, 306 A.2d 564, 566 (1973), said in dicta that Md. Ann. Code art. 16, §§ 66A-66P was "the exclusive basis in this State for enforcing the obligation of a putative father to support his illegitimate child."
The trial judge in the instant case brushed aside the appellant's argument with respect to the application of Md. Ann. Code art. 72A, § 1, which pertains to parent and child. The judge relied upon the dicta in Williams. Id. In so doing, he fell into error. Williams was written without regard to the legislative direction as to the interpretation that must be placed on the noun "child" whenever it appears in the Code. Md. Ann. Code art. 1, § 16 provides:
"The word child or its equivalent shall be construed to include any illegitimate child, except in matters of inheritance, descent or distribution of real or personal property, unless such a construction would be unreasonable."
The matter now before us concerns the question of support and maintenance of the child. Inheritance and the other testacy or intestacy exceptions found in section 16 are not involved, nor does a reading of Article 72A suggest that to interpret the word "child," as defined in Article 1, § 16, would be unreasonable.
*353 Md. Ann. Code art. 72A, § 1 delineates the obligation of parents to their legitimate children and prescribes that "the father and mother are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education." (Emphasis supplied.) It has been held that the provision of medical care is included within the broad statutorily defined obligation of "support, care, nurture, welfare and education." Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963); Craig v. State, 220 Md. 590, 155 A.2d 684 (1959).
Judge Thompson, for this Court in State v. Rawlings, 38 Md. App. 479, 481, N. 2, 381 A.2d 708, 709 (1978), called attention to the fact that in deciding that "the word child as used in Art. 72A, § 1 only referred to legitimate children," we did not consider the effect of the definition of "child" as found in Article 1, § 16.
To satisfy the legislative intent articulated in Art. 16, § 66A of "securing to ... [illegitimate children], as near as practical, the same right to support, care and education as legitimate children," (Emphasis supplied.), we must conclude that the provision for medical care is implicit within the phrase "support and maintenance" as contained in Article 16, § 66H (a) (1).
Recently in Polk v. Harris, 46 Md. App. 591, 599, 420 A.2d 1004, 1008 (1980), we said that there is "no basis for making any differentiation between the rights of legitimate and illegitimate children as to payments for maintenance and support." To deny illegitimate children the right to receive medical care from their parents, while recognizing that legitimate children have such a right would be blatantly to ignore the equal protection guarantees of the Fourteenth Amendment as well as the numerous pronouncements by the Supreme Court of the United States. That Court has iterated and reiterated that illegitimate children must be extended the same rights as legitimate children, except where the differentiation serves a valid State purpose. See Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L.Ed.2d *354 31 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968).
We think Md. Ann. Code art. 16, §§ 66A-66P must be read together with Md. Ann. Code art. 72A, after applying the definition of "child" as found in Md. Ann. Code art. 1, § 16. When so read, it is clear that a child, irrespective of its legitimacy vel non has the right to support and maintenance from both its father and mother. To the extent that Williams v. Williams, supra, indicates to the contrary, it is expressly overruled.
As a further reason for reversing the judgment of the circuit court, we point directly to Md. Ann. Code art. 16, § 66H (a) (1). That section provides, in pertinent part, that if a defendant is found to be the father of a child born outside the bonds of marriage, "the court shall pass an order" directing the father to provide "the support and maintenance of the child." We construe the term "support and maintenance" to embrace necessary medical care and treatment. It would be foolhardy, indeed, to order a parent to provide food and shelter from the elements and, at the same time, permit the child to expire for want of medical care.
Our perusal of the record discloses that the second issue stated above was not raised and decided in the circuit court. The proceeding below was directed entirely towards the hospital expenses incurred in connection with the postnatal care of Shannon following her premature birth.
We note that Md. Ann. Code art. 16, § 66H (a) (3) confers upon the chancellor the authority to "require the defendant to pay all or any part of the mother's medical and hospital expense" incurred as a result of the "pregnancy, confinement, and recovery...." The statute is couched in permissive terms, not mandatory terms as with section 66H (a) (1). The issue then would be whether the trial court abused its discretion in refusing to order the defendant to pay all or part of the hospital expenses of the mother.
*355 The issue is, as we have said, not properly before us, and we do not decide it. Md. Rule 1085.
Judgment reversed and case remanded for further proceedings consistent with this opinion.
Costs to be paid by appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386105/ | 431 A.2d 543 (1981)
EDMUND J. FLYNN COMPANY, Appellant,
v.
Gerard M. LaVAY, et al., Appellees.
Gerard M. LaVAY, et al., Appellants,
v.
EDMUND J. FLYNN COMPANY, Appellee.
No. 79-708, 79-789.
District of Columbia Court of Appeals.
Argued March 20, 1980.
Decided May 13, 1981.
*545 James C. Eastman, Washington, D. C., for appellant in No. 79-708 and appellee in No. 79-789.
Glenn A. Mitchell, Washington, D. C., with whom Richard A. Bussey and Catherine R. Baumer, Washington, D. C., were on the brief, for appellees in No. 79-708 and appellants in No. 79-789.
Before HARRIS, MACK and FERREN, Associate Judges.
HARRIS, Associate Judge:
Edmund J. Flynn Company, a real estate broker, appeals from the trial court's determination that it had no contract to serve as a commissioned sales agent for the developers of a condominium project in the District of Columbia.[1] In a cross-appeal, the defendants in the nonjury trial challenge the award to Flynn of $18,000 (with interest) as the reasonable value of services rendered under both implied and express agency agreements calling for the performance of presales services. We find no clear error in the trial court's findings of facts and conclusions of law. However, because the record does not reveal the extent to which an erroneous evidentiary ruling may have affected the outcome, we vacate the judgment and remand the case solely to permit reconsideration thereof in light of our treatment of the attorney-client privilege issue.
I
In early 1977, defendants Gerard M. La-Vay and Gerard M. LaVay Corporation, first by themselves and later as joint venturers with defendants Richard J. Donohoe and Donohoe Construction Company, commenced planning for a condominium development in the District of Columbia (at North Capitol Street and Michigan Avenue, N.E.) to be called Park Place. While the project was still in the formative stage, and before initiation of the joint venture, LaVay sought to assemble a group of specialists who would assist in the development and the marketing of Park Place. In that endeavor, LaVay contacted plaintiff's president in a February 1977 meeting at the latter's office. The trial court found that at that meeting, LaVay raised generally the prospects of Flynn's acting as sales agent for Park Place, but that the parties concluded no agreement and executed no writings.
Notwithstanding the absence of a written sales agency contract, LaVay (together with his joint venturers) subsequently invited Flynn to participate in certain meetings related to the sale of the envisioned units. There was no dispute at trial that Flynn attended those meetings, although Flynn offered substantial additional testimony, challenged by LaVay, regarding the extent *546 and the value of the plaintiff's other activities on behalf of the defendants. The trial court resolved much of this conflict in awarding Flynn judgment for services it rendered to defendants.
Substantial evidence supports the other branch of the trial court's findings: While the parties intended originally to appoint Flynn the commissioned sales agent for Park Place, later disagreement over material terms regarding compensation and termination prevented formation of the contemplated contract. During the course of these ultimately fruitless sales agency negotiations, Flynn continued its participation in LaVay's meetings. Moreover, on March 21, 1978, LaVay delivered a written agreement to Flynn appointing Flynn its agent for the limited purpose of responding to initial inquiries from prospective buyers. That appointment noted that the parties contemplated, but had not entered into, a formal written agreement for Flynn to act as the sales agent for Park Place.
In its extensive findings of fact and conclusions of law, the trial court concluded that Flynn acted as a limited pre-marketing agent for appellees, first under an implied-in-fact agreement dating from the February 1977 meeting with LaVay, and later under the express March 21, 1978, limited agency appointment. Indicating that the pre-marketing agency relationship was of an indefinite duration and terminable at the will of either party, the trial court found that defendants revoked the agency agreement on September 21, 1978. Judgment for plaintiff in the amount of $18,000 plus interest was entered as compensation for Flynn's activities under that pre-marketing agency agreement.
II
At trial, plaintiff endeavored to cast itself as the beneficiary of a far more lucrative contract which purportedly retained Flynn to act as the exclusive commissioned sales agent for Park Place. In this effort, Flynn presented the testimony of Lipman Redman, an attorney for the defendants who had participated in what the trial court found to be aborted negotiations for just such a sales agency agreement. The import of Redman's testimony was that for a period of time defendants considered drafts of a sales agency contract which had been proposed by Flynn, but which they ultimately rejected.
In preparation for the development of this testimony, plaintiff conducted pretrial discovery, ostensibly exhaustive, which sought all materials relevant to negotiations over the draft agreement. The defendants refused disclosure of some of the requested documents, asserting that they had been communicated in confidence to or from attorney Redman, and hence that they were privileged.
On cross-examination of Redman at trial, however, defendants introduced over objection a memorandum from Redman reciting certain details of the sales agency contract negotiations. Flynn contended that the document fell within the scope of its prior discovery requests, which LaVay had refused with an assertion of the attorney-client privilege. Counsel for Flynn further argued that the introduction of the Redman memorandum into evidence had waived the previously invoked attorney-client privilege and entitled plaintiff to access to all formerly withheld material. The trial court refused the renewed disclosure request at that time and again when plaintiff made an unsuccessful motion for a new trial, claiming prejudice to its trial examination of Redman because of the denied disclosure of defendants' withheld documents.
III
Most of the controversy on these appeals stems from the trial court's resolution of factual disputes regarding the sales agency negotiations between the parties. Accordingly, we observe that we are obliged to treat the trial court's factual findings as presumptively correct unless they are clearly erroneous or unsupported by the record. See D.C.Code 1973, § 17-305(a). That presumption properly exists because the trial court heard the testimony and evaluated its credibility. See, e. g., In re A. B. H., D.C. *547 App., 343 A.2d 573, 575 (1975); Johnson & Jenkins Funeral Home, Inc. v. District of Columbia, D.C.App., 318 A.2d 596, 597 (1974); Lee Washington, Inc. v. Washington Motor Truck Transportation Employees Health and Welfare Trust, D.C.App., 310 A.2d 604, 606 (1973). Recognizing that limitation on our review function, we proceed to a consideration of the merits.
IV
Flynn contends that a sales commission contract existed between the parties, and therefore it is entitled to certain future commissions from the sale of Park Place units which it would have earned but for the breach of that contract by LaVay. 11 Williston on Contracts, § 1339 (3d ed. 1968). The trial court determined, however, that although the parties conducted negotiations in contemplation of such an agreement, no contract covering sales commissions ever was formed. The court stated:
From the evidence presented, the Court determines that the parties did not intend that the negotiations should amount to an agreement prior to the execution of the formal writing. The parties indicated that as late as March 21, 1978, in the agency appointment agreement, and, by the unsettled nature of the negotiations, especially regarding the question of the Flynn Company serving as the exclusive sales agent. A written contract embodying the completed contract was contemplated and the Court will give effect to this intention not to be bound. Accordingly, any claim for damages based on the loss of future commissions must be denied.
The record supports the conclusion that no sales commission contract was created because there never was any agreement on the material terms of compensation and termination.[2] To be final, contract negotiations must include all of the terms which the parties intended to resolve; material terms cannot be left to future settlement. See Beck v. Bernstein, 198 Md. 244, 81 A.2d 608 (1951). Both parties agree that no formal sales commission agreement was signed. Since either party was at liberty to stop negotiations and not to complete the bargain, no contract existed. Beck v. Bernstein, supra, 198 Md. at 248, 81 A.2d at 609-10.
In evaluating contract formation, we also look closely at the parties' intention to be bound. In order to form a binding agreement, both parties must have the distinct intention to be bound; without such intent, there can be no assent and therefore no contract. Compare Smith v. Farrell, 199 Va. 121, 128, 98 S.E.2d 3, 7-8 (1957), with Coastland Corp. v. Third National Mortgage Co., 611 F.2d 969, 975 (4th Cir. 1979) (citation omitted). Defendant LaVay took no writing to the unscheduled February 1977 meeting, and no writing embodying the terms of oral discussions was executed at the meeting or at any time thereafter. Indeed, the subsequent negotiations about drafts of a written sales commission agreement reflect the parties' intention not to be bound until a formal writing was executed. Binder v. Benson, 225 Md. 456, 462, 171 A.2d 248, 250-51 (1961); Peoples Drug Stores v. Fenton Realty Corp., 191 Md. 489, 494, 62 A.2d 273, 275-76 (1948). There is no evidence indicating a meeting of the minds as to the variety of details usually present in a developer-broker contract.
The only writing executed by the parties was the March 21, 1978, limited agency appointment form drafted by Flynn and signed by defendants. That document stated that "[a] more formal writing" was contemplated before Flynn could act as the Park Place sales agent. Unquestionably, Flynn was hopeful and believed it had a chance to become the exclusive broker for the project. Nonetheless, there is substantial evidence in the record that a binding written sales commission contract did not exist and that only preliminary negotiations were underway. Therefore, we find no error *548 in the trial court's findings that the parties did not intend their negotiations to constitute a sales commission contract prior to the execution of a formal writing and, as a result, that no sales commission contract was formed.[3]
V
While the trial court found that the parties did not create a sales commission contract, it did conclude that both an implied and an express agency agreement existed between the parties for the limited purpose of Flynn's rendering pre-marketing services. The burden of proving an agency relationship rests with the party asserting the relationship. H. G. Smithy Co. v. Washington Medical Center, Inc., D.C.App., 374 A.2d 891, 893 (1977); Goldberg v. Barta, D.C.Mun.App., 109 A.2d 779, 782 (1954). A broker alleging such a relationship must be able to show that the purported principal authorized the broker to act as its agent. Absent authorization, a broker acts as a mere volunteer and is not entitled to commissions or fees for its services. H. G. Smithy Co. v. Washington Medical Center, Inc., supra; Apostolides v. Colecchia, D.C. App., 221 A.2d 437, 438-39 (1966). An analysis of the record leads us to conclude that the trial court did not err in ruling that plaintiff had carried its burden and proved the existence of an agency relationship.
Without doubt, the trial court correctly premised its award of damages on its conclusion that the March 21, 1978, written agency appointment demonstrated Flynn's authority to act for LaVay in performing pre-marketing services. An agent acting pursuant to an express appointment may recover the fair and just value of services rendered, even absent an explicit compensation agreement. 2 Restatement (Second) of Agency § 443, Comment (d) (1958).
The trial court also properly extended its award to include compensation for services rendered prior to March 21, 1978, finding that Flynn proved the existence of an implied-in-fact agency to perform premarketing functions during that period. A party seeking payment must demonstrate three elements to establish an implied-in-fact contract which would entitle it to compensation:
First, the party seeking payment must show that the services were carried out under such circumstances as to give the recipient reason to understand that the services were rendered for the recipient and not for some other person. Second, the party must demonstrate the existence of such circumstances as to put the recipient on notice that the services were not rendered gratuitously. Finally, the party must prove that the services were beneficial to the recipient. [H. G. Smithy Co. v. Washington Medical Center, Inc., supra, 374 A.2d at 893.]
Accord, Bloomgarden v. Coyer, 156 U.S. App.D.C. 109, 116-17, 479 F.2d 201, 208-09 (1973).
Ample evidence before the trial court reflected that LaVay sought out Flynn's participation in a substantial number of meetings and other pre-marketing activities, all of which were intended to lead to the successful development of Park Place. After considering this evidence, the trial court found that:
Despite the absence of the contemplated formal agreement, but with the understanding that the Flynn Company would be the sales agent for the Park Place Project once mutually agreeable terms were worked out, Flynn Company began participating in the planning of the venture, and offered contributions of time and ideas. LaVay, and later Donohoe, acquiesced in this participation; indeed, LaVay and Donohoe invited and encouraged this participation in a number of instances. LaVay and Donohoe also represented to third parties that Flynn was to have the responsibility for sales and marketing.
*549 In light of these factual determinations, which we may not disturb absent indication of clear error, the defendants may not persuasively deny that they were aware that Flynn acted on their behalf and was not acting gratuitously. Plaintiff having satisfied the first two elements of an implied agency as defined in H. G. Smithy Co., supra, the trial court committed no error in awarding Flynn judgment to the extent that it satisfied the third element of Smithy by proving the beneficial value of its services rendered.
VI
We now examine the value of Flynn's pre-marketing services, upon which computation rests the propriety of the trial court's award. As a starting point, we recognize that agency law permits the award to an agent, whose appointment is terminated without fault, of the fair value of its services. 2 Restatement (Second) of Agency, supra, § 452; see In re Rich, D.C.App., 337 A.2d 764, 766 (1975).[4]
We are satisfied that the trial court did not err in awarding Flynn a reasonable fee for its work as an agent, based on established criteria.[5]See Bloomgarden v. Coyer, supra, 156 U.S.App.D.C. at 119-20, 479 F.2d at 211-12. The trial court considered Flynn's contributions at various meetings, as well as its ability to meet with potential buyers and renters. After hearing the testimony and the cross-examination of the plaintiff company's president and of an expert witness on the valuation of services issue, the trial judge greatly discounted their assessment of Flynn's services. He did, however, heed their testimony and determine the value of such services in the local market. The trial judge stated:
The Court values the Flynn Company's contribution to the project in terms of attendance at the various functions, contributions of ideas and experience, investment of time and effort, and the use of the Flynn Company's good name by the defendants in promoting the venture at eighteen thousand dollars ($18,000).
A plaintiff need prove damages only with reasonable certainty. Keefer v. Keefer and Johnson, Inc., D.C.App., 361 A.2d 172, 176 n.7 (1976), quoting from District *550 News Co. v. Goldberg, D.C.Mun.App., 107 A.2d 375, 377 (1954), quoting in turn from Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 379, 47 S. Ct. 400, 405, 71 L. Ed. 684 (1927); Sears, Roebuck and Co. v. Goudie, D.C.App., 290 A.2d 826, 833, cert. denied, 409 U.S. 1049, 93 S. Ct. 523, 34 L. Ed. 2d 501 (1972). While an award may not be based on speculation or guesswork, it may be a just and reasonable estimate based on relevant data. Bigelow v. RKO Radio Pictures Inc., 327 U.S. 251, 264, 66 S. Ct. 574, 579, 90 L. Ed. 652 (1946). See also Stern v. Ace Wrecking Co., D.C.Mun. App., 38 A.2d 626, 627-28 (1944). Probable and inferential considerations as well as direct and positive proof may provide the basis for an award. Bigelow v. RKO Radio Pictures, Inc., supra, 327 U.S. at 264, 66 S. Ct. at 579. While the award in the instant case was not susceptible of a "mathematical demonstration," the trial judge did consider and reflect upon both the amount and the quality of Flynn's work as an agent. See District News Co. v. Goldberg, supra, 107 A.2d at 377. The trial judge did not err in arriving at the amount of damages awarded to plaintiff for services rendered to defendants.[6]
VII
Flynn contends that it could have proved the existence of a sales commission contract had the trial court ordered disclosure of the assertedly privileged documents held by the defendants' attorney Redman. Our but indirect exposure to the evidence presented to the trial court on this issue prevents us from fully evaluating the merits of Flynn's contentions. We do, however, conclude that the trial court erred in denying plaintiff's renewed request for access to the withheld documents after it became clear that defendants, by their actions at trial, had waived the attorney-client privilege, removing the sole obstacle to disclosure of the potentially relevant material. This conclusion requires that we vacate the judgment and remand the case to the trial court for further consideration.
Evidentiary rulings fall within the sound discretion of the trial judge and ordinarily do not serve as the basis for reversal absent an abuse of discretion and serious injury to the aggrieved party. Hughes v. Pender, D.C.App., 391 A.2d 259, 262 (1978); Guaranty Development Co. v. Liberstein, D.C.Mun.App., 83 A.2d 669, 671 (1951). While no such clear demonstration of abuse and serious injury was exhibited here, we feel compelled to remand for reconsideration since we cannot say that the erroneous evidentiary ruling was harmless.
*551 Testimonial privileges, such as protection for attorney-client confidences, operate as narrow exceptions to the general rule that every person must offer testimony upon all facts relevant to a judicial proceeding. 8 Wigmore, Evidence § 2285 (McNaughton rev. 1961). Intended to promote free exchange between counselor and client during confidential consultations, the privilege properly serves as a shield, not as an offensive tool of litigation. See id., § 2291; International Telephone & Telegraph Corp. v. United Telephone Co., 60 F.R.D. 177, 185 (M.D.Fla.1973), aff'd, 550 F.2d 287 (5th Cir. 1977). A party may not, therefore, insist upon protection of the privilege for damaging communications while disclosing those which it considers to be favorable to its position. Champion International Corp. v. International Paper Co., 486 F. Supp. 1328, 1332 (N.D.Ga.1980).
Where a party authorizes the partial disclosure of materials otherwise subject to a valid claim of attorney-client privilege, the privilege must be treated as waived. Haymes v. Smith, 73 F.R.D. 572, 576 (W.D.N.Y.1976); In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 463-64 (S.D.N.Y.1973); International Telephone & Telegraph Co. v. United Telephone Co., supra, 60 F.R.D. at 185-86; see also McCormick on Evidence, § 93 (2d ed. 1972). Once a party has waived the attorney-client privilege, the other party should receive access to the remaining relevant withheld materials. United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y.1979); Handguards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 929 (N.D.Cal.1976); International Telephone & Telegraph Corp. v. United Telephone Co., supra, 60 F.R.D. at 186; see also 8 Wigmore, supra, § 2327. In this regard, we note that the scope of relevance as defined for discovery purposes is quite broad. See Super.Ct.Civ.R. 26(b). Discovery of assertedly privileged material cannot be circumvented by delaying the first waiver of the privilege until a strategically advantageous stage of a trial. Waiver at trial should permit access at trial to all documents otherwise reasonably covered by a claim of privilege. To sustain selective waiver of an attorney-client privilege for tactical purposes would be unseemly, if not demonstrably unfair.[7]
In the trial court proceedings, the defendants sought to dictate the limits of attorney-client privilege by waiving the protection for a certain memorandum, while maintaining their objection to disclosure of the remainder. The trial court erroneously sustained this selective assertion of the privilege.
We cannot gauge how, if at all, disclosure of the withheld documents would have affected the plaintiff's presentation of its sales commission contract contentions or the trial court's perception of those claims. In the first instance, that evaluation should be performed by the trial judge. Accordingly, we vacate the judgment and remand the case for a hearing on the contents of the withheld documents or for such other reconsideration consistent with this opinion as the trial court deems appropriate.
So Ordered.
NOTES
[1] The action in the trial court was brought by Edmund J. Flynn Company against Gerard M. LaVay, Gerard M. LaVay Corporation, Richard J. Donohoe, and Donohoe Construction Company. Since we dispose of cross-appeals, we refer to the parties as plaintiff (or Flynn) and defendants (or LaVay).
[2] In particular, the parties had numerous discussions and haggles over Flynn's compensation.
[3] Given our accord with the trial court's finding that no sales commission contract existed between the parties, we need not address LaVay's contention that the statute of frauds prevents the oral negotiations over sales commissions from constituting an oral contract.
[4] The general rule on agency compensation is as follows:
§ 443. Amount of Compensation
If the contract of employment provides for compensation to the agent, he is entitled to receive for the full performance of the agreed service:
* * * * * *
(b) the fair value of his services, if there is no agreement for a definite amount. [2 Restatement (Second) of Agency, supra, § 443.] The comment on Clause (b) is as follows:
(d) If the amount of compensation is not otherwise agreed upon, as where no specific amount is stated and there is no customary rate for the services, it is inferred that, in a transaction in which some compensation is due, the parties have agreed that the agent is to receive the reasonable value of his services. In determining this, evidence of what other agents receive for similar services is competent, together with other factors, including the reputation of the agent, the skill with which the work is done, and the difficulty or danger of the task. * * * [Ibid.]
A further principle is:
Comment:
(a) [I]f a contract in which one of the parties has rendered services terminates without his fault, ordinarily he is entitled to the reasonable value of such services, although the condition upon which it was agreed that he should receive a specified amount has not occurred before the termination. Normally, this is fair. * * * [Id., § 453.]
[5] In their cross-appeal, defendants contend that plaintiff is not entitled to quantum meruit damages because the complaint did not include a count for quantum meruit relief. We find this argument unpersuasive. In its conclusions of law, the trial court based its award on an implied compensation agreement and did not use the words "quantum meruit." The term quantum meruit may refer to either an implied contractual or a quasi-contractual duty requiring compensation for services rendered. Super.Ct. Civ.R. 8(a) requires only a "short and plain statement of the claim" in order to provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (discussing Fed.R.Civ.P. 8(a), which is identical to Super. Ct.Civ.R. 8(a)). Flynn complied with Rule 8 by setting forth a short, plain statement of the facts concerning its pre-marketing activities. The complaint clearly put LaVay on notice regarding the nature of the claim. The legal label for relief sought is not controlling.
[6] LaVay also challenges the trial court's award of prejudgment interest to Flynn. D.C.Code 1973, § 15-109, provides:
In an action to recover damages for breach of contract the judgment shall allow interest on the amount for which it is rendered from the date of the judgment only. This section does not preclude the jury, or the court, if the trial be by the court, from including interest as an element in the damages awarded, if necessary to fully compensate the plaintiff. In an action to recover damages for a wrong the judgment for the plaintiff shall bear interest.
The first sentence of this provision expresses the general rule that "where the damages are unliquidated interest runs only from the date of judgment." Dyker Bldg. Co. v. United States, 86 U.S.App.D.C. 297, 302-03, 182 F.2d 85, 90-91 (1950) (discussing virtually identical predecessor statute); accord, National Trucking & Storage Co. v. Pennsylvania R. R. Co., 97 U.S. App.D.C. 52, 59, 228 F.2d 23, 30 (1955); Flanaghan v. Charles H. Tompkins Co., 86 U.S.App. D.C. 307, 308, 182 F.2d 92, 93 (1950). The second sentence of this section allows the general rule to be overridden where an award of interest is necessary in order to compensate the plaintiff fully. Noel v. O'Brien, D.C.App., 270 A.2d 350, 351 (1970); Tendler v. Jaffe, 92 U.S. App.D.C. 2, 6, 203 F.2d 14, 17, cert. denied, 346 U.S. 817, 74 S. Ct. 29, 98 L. Ed. 344 (1953) (interpreting virtually identical predecessor statute); Dyker Bldg. Co. v. United States, supra, 86 U.S.App.D.C. at 303, 182 F.2d at 91; see National Trucking & Storage Co. v. Pennsylvania R. R. Co., supra, 97 U.S.App.D.C. at 59, 228 F.2d at 30; Flanaghan v. Charles H. Tompkins Co., supra, 86 U.S.App.D.C. at 308, 182 F.2d at 93. Under the statute, the trial court operates within a wide range of discretion in awarding prejudgment interest. Noel v. O'Brien, supra, at 351; see E. F. Hutton & Co. v. Burkholder, 413 F. Supp. 852, 859 (D.D.C. 1976). On the record before us, we find no abuse of the trial court's discretion in its award of prejudgment interest to Flynn.
[7] See, e. g., United States v. Blackburn, 446 F.2d 1089, 1091 (5th Cir.1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 679, 30 L. Ed. 2d 665 (1972) ("[W]hen the client and attorney themselves, for purposes beneficial to the client, lift the veil [of attorney-client privilege], they cannot lower it again", quoting United States v. Shivley, 112 F. Supp. 734, 742 (S.D.Cal.1953)); International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 92 (D.Del.1974) (It would be "manifestly unfair" to allow one party to make factual assertions and then deny the other party "the foundation for those assertions in order to contradict them."); Lee National Corp. v. Deramus, 313 F. Supp. 224, 227 (D.Del.1970) ("It would be patently unfair for a client to disclose those instances which please him and withhold all other occasions," citing 8 Wigmore, supra, § 2327); United States v. Krasnov, 143 F. Supp. 184, 191 (E.D.Pa.1956), aff'd, 355 U.S. 5, 78 S. Ct. 34, 2 L. Ed. 2d 21 (1957) ("The privilege once waived cannot be regained."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386127/ | 49 Md. App. 246 (1981)
431 A.2d 721
MONTGOMERY COUNTY POLICE DEPARTMENT ET AL.
v.
JESSE M. JENNINGS.
No. 988, September Term, 1980.
Court of Special Appeals of Maryland.
Decided July 8, 1981.
*247 The cause was argued before MORTON, MOORE and MACDANIEL, JJ.
Richard W. Galiher, Jr., with whom were Galiher, Clarke, Martell & Donnelly on the brief, for appellants Montgomery County Police Department, employer and Insurance Company of North America, insurer No. Two. Alfred J. Dirska, with whom were M. Evelyn Spurgin and O'Malley, Miles, Farrington & McCarthy on the brief, for appellants Montgomery County Police Department, employer and Hartford Accident & Indemnity Company, insurer No. One.
Phillip M. Sutley for appellee.
MOORE, J., delivered the opinion of the Court.
This appeal involves a claim by a former Montgomery County police officer for workmen's compensation benefits because of an occupational disease, hypertension. The Medical Board for Occupational Diseases held that the disability began in 1964 and, therefore, that the claimant was not entitled to compensation under the presumption of compensability contained in Md. Ann. Code art. 101, § 64A.[1] The Circuit Court for Montgomery County, on *248 appeal from an Order of the Workmen's Compensation Commission disallowing the claim, found that the disability began in 1973 and granted the claimant's motion for summary judgment.[2] The employer-insurer has appealed.[3] We affirm.
I
Jesse M. Jennings was a Montgomery County police officer for over 22 years, from September 1951 through late 1973. He had an exemplary record until he retired, on medical orders, because of heart disease.[4] His full-time employment as a police officer continued until June or July 1973, but he is now totally and permanently disabled.
Mr. Jennings, during his tenure as an officer, received special training in the handling of high stress situations and violent mental patients. He was six feet one and weighed 215 pounds. He testified that he had been involved in about 60 serious altercations with mental patients between 1957 and 1970. During the period from 1951 through 1970 altercations with non-mental patients numbered about 150.
In June 1964, while making an arrest involving an altercation, he experienced pressure in his chest, nausea, and shortness of breath and was taken to the Emergency Room at Suburban Hospital. Blood pressure tests and an *249 electrocardiogram were performed and he was hospitalized for two days. His electrocardiogram was normal on admission and remained normal throughout his admission. Upon discharge, his blood pressure had stabilized and was normal; he rested at home for five or six days and then returned to his regular duties. Beginning in 1967, he took medicine for blood pressure on a regular basis.
While on duty at his desk in 1970, Mr. Jennings experienced extreme pressure in the chest. He was taken immediately to his physician and an electrocardiogram was administered. A prescription was given for nitroglycerin and diuril. In September 1970, he was diagnosed as having "essential hypertension of moderate to severe degree still requiring treatment." In 1971, he was transferred to a desk job. Asked to describe the nature of his duties at that time, he testified:
"I had to check and approve every report that the Police wrote in the Bethesda District. I had to approve or reject the idea to fingerprint and photograph every suspect that was brought in to the Station, make out a history sheet on them, I had to handle complaints they started with me. They came in, any type of complaint about anything, against Police Officers, whatever they might be."
In June or July 1973, his physician advised him to retire because of hypertension and angina. He actually ceased his work with the police department at that time but his retirement date was November 21, 1973. The following day, while at home, he suffered a myocardial infarction.
Jennings filed a claim for workmen's compensation benefits on November 4, 1974 pursuant to Md. Ann. Code art. 101, § 64A. On March 1, 1977, he appeared and testified at a hearing before the Medical Board. Medical evidence was introduced and received on his behalf. The employer-insurer offered no testimony. By decision dated May 25, 1977, the Board found that the claimant developed hypertension and hypertensive cardiovascular disease in 1964 "[which] naturally *250 progressed in severity subsequent to 1964." It concluded that his "disability" began in 1964 and that he was not entitled to compensation under Article 101, § 64A because the effective date of that statute was July 1, 1971. (Actually, the statute was not amended to include police officers until July 1, 1972.) The Board also concluded that the claimant did not sustain an occupational disease.
On October 9, 1978, the Workmen's Compensation Commission affirmed the decision of the Medical Board, and found that "claimant did not sustain ... an occupational disease arising out of and in the course of employment...." Mr. Jennings appealed the Commission's decision to the circuit court. The case came on for a hearing on cross-motions for summary judgment. In a Memorandum and Order dated June 16, 1980, the court ruled that it would be "illogical and unfair" to hold that Mr. Jennings was disabled when he was performing his duties on a full-time basis, drawing a full salary. The court concluded that Mr. Jennings did not become disabled until 1973 when he was ordered to retire and, therefore, the disability was governed by Article 101, § 64A.
Claimant's motion for summary judgment was granted. The appellants' motion was denied but the case was remanded to the Commission "to hear evidence solely on the issue of rebutting the presumption that [claimant's] disability has been suffered as a result of his employment...."
The employer-insurer presents the following questions on this appeal from Judge Mitchell's order:
"1. Did the trial court err when it reversed the Workmen's Compensation Commission when the decision of the Commission was supported by legally sufficient evidence?
2. Did the trial court err when it determined that Claimant's disability began in 1973, rather than 1971?
3. Did the trial court err when it remanded the case to the Workmen's Compensation Commission *251 to hear evidence on the issue of rebutting the presumption set forth in Section 64A?"
II
The standard of review in occupational disease cases is set forth in Md. Ann. Code art. 101, § 56. That section provides, in relevant part, "in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury." However, in Duncan v. McNitt Coal Co., 212 Md. 386, 395, 129 A.2d 523 (1957), the Court of Appeals observed, "[n]otwithstanding the finality which these statutes seek to confer upon such findings of the Commission, they are subject to review if not supported by substantial or legally sufficient evidence ... and the existence of such evidence is a question of law."
More importantly, the Court of Appeals has stated unequivocally that "a finding of the Commission [in an occupational disease case] may be reversed when it is based on an erroneous conception of the applicable law." Maryland Bureau of Mines v. Powers, 258 Md. 379, 383, 265 A.2d 860 (1970). Here, the Commission's affirmance of the Board's ruling that Mr. Jennings' disability began in 1964 was based on an erroneous legal construction of the term "disability" in occupational disease cases.
We begin our analysis by observing that until the enactment of an amendment in 1939, there was no legislative recognition of the right to compensation for an occupational disease. Belschner v. Anchor Post Products, Inc., 227 Md. 89, 175 A.2d 419 (1961). The Court of Appeals has had occasion to define occupational disease as:
"some ailment, disorder, or illness which is the expectable result of working under conditions naturally inherent in the employment and inseparable therefrom, and is ordinarily slow and insidious in *252 its approach." Foble v. Knefely, 176 Md. 474, 486, 6 A.2d 48 (1939).
As used in Article 101, occupational disease means:
"the event of an employee's becoming actually incapacitated, either temporarily, partially or totally, because of a disease contracted as the result of and in the course of employment." Art. 101, § 67 (13).
In providing compensation for an occupational disease, the General Assembly imposed two basic requirements: (a) that the claimant suffers from an occupational disease and (b) that the claimant is "thereby disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, ... and the disease was due to the nature of [his] occupation...." Article 101, § 22. (Emphasis added.)
The "slow and insidious" nature of occupational disease necessarily betokens a lapse of time between the date of its contraction and the time when employment must cease. As Larson has expressed it in his treatise on Workmen's Compensation Law:
"Occupational disease cases typically show a long history of exposure without actual disability, culminating in the enforced cessation of work on a definite date."
The importance of the date of disability in such cases has been explained by the learned author in the following language:
"In the search for an identifiable instant in time which can perform such necessary functions as to start claim periods running, establish claimant's right to benefits, determine which year's statute applies, and fix the employer and insurer liable for compensation, the date of disability has been found the most satisfactory. Legally, it is the moment at which the right to benefits accrues ... it has the one cardinal merit of being definite, while such other *253 possible dates as that of the actual contraction of the disease are usually not susceptible to positive demonstration." (Emphasis added.) § 95.21 at 17-82.
In Maryland, the Code specifically defines disability in occupational disease cases. Article 101, § 67 (15) states:
"`Disablement,' as used in §§ 22, 27, 28 and 29 of this article [all dealing with occupational disease] means the event of an employee's becoming actually incapacitated, either partly or totally, because of an occupational disease ... and `disability' means the state of being so incapacitated." (Emphasis added.)
The meaning of the words "actually incapacitated" has been explained by the Court of Appeals in a case which has a significant bearing upon the instant appeal. Belschner v. Anchor Post Products, Inc., 227 Md. 89, 175 A.2d (1961). There, the claim under Article 101, § 22 of a saw operator who suffered permanent loss of hearing because of the high noise level in his occupation, was disallowed. The evidence showed that the claimant continued his work, notwithstanding his "disease." Affirming the Commission's action, the Court of Appeals agreed that the saw operator was not disabled. With reference to the words, "actually incapacitated" in § 67 (15), the Court said:
"While the words `actually incapacitated' are not defined in the statute, obviously because they are neither ambiguous nor equivocal and import no technical industrial meaning, it has been said that an employee is not incapacitated within the intent of the law `if, though injured, [he] still has the capacity, the ability to, and does continue to perform his regular work, for which he was employed, and receives his usual pay for the work.' Lumbermen's Reciprocal Ass'n v. Coody, 278 S.W. 856 (Tex.Civ.App. (1926))." *254 Id. 227 Md. at 93, 175 A.2d 419. Cf. Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 265 A.2d 871 (1970) (coal miner found to be "totally disabled" due to asbestosis despite his continuation of employment when parties stipulated to miner's total disability and medical evidence was uncontroverted; Belschner distinguished by the Court, n. 2 at 472, because "although being an occupational disease case, [it] is not a pulmonary dust disease case coming under § 24(b)").
Here, it was found by the Board and the Commission that Mr. Jennings was disabled in 1964 and was, therefore, disqualified under § 64A because the latter did not become effective for police officers until July 1, 1972. Yet, it is uncontroverted that, after his 2-day hospitalization and 6-day convalescence at home in 1964, Mr. Jennings worked for nine years in his employment and the medical doctor who had treated him prior to the 1964 incident, and continuously thereafter, did not order him to stop working until June or July, 1973.[5] We think the trial court, on the authority of Belschner, properly rejected appellants' contention that approximately 8 days of illness in 1964 constituted "disablement" as of that time, rendering § 64A inapplicable. The conclusion of the Medical Board and the Commission miscontrued the law.
The alternative contention of appellants that Mr. Jennings' transfer to station house duties in 1971 constituted "disablement" at that time was not presented at the Board or Commission level and Judge Mitchell properly ruled that it could not be asserted for the first time on the appeal to the circuit court. Cf. Bethlehem Steel Co. v. Carter, 224 Md. 19, 165 A.2d 902 (1960). The issue need not be decided by this Court. Md. Rule 1085. At all events, we note that when the officer was reassigned to desk duty in Bethesda, his new job previously described was no sinecure. His new duties clearly appear to have been the stressful duties of a police officer, even though he was not patrolling in a squad car.
*255 III
We next address the correctness of the trial court's remand of the case to the Workmen's Compensation Commission "to hear evidence solely on the issue of rebutting the presumption that Mr. Jennings' disability has been suffered as a result of his employment."
In our view, the Medical Board, after taking claimant's testimony and considering medical evidence, had no occasion to apply the presumption of compensability contained in § 64A because of its finding that Jennings was disabled in 1964. Therefore, it was not necessary for it to determine whether the evidence was such as to rebut the (inapplicable) presumption that claimant's disability was suffered as a result of his employment as a police officer. Similarly, it was unnecessary for the Commission to make such a finding on the evidence then before it because it agreed that § 64A was, in the first instance, inapplicable. The issue of whether the presumption was rebutted was not there considered; it was, in effect, rendered moot by the Board and the Commission and may not be resolved by this Court on appeal. In Trojan Boat Company, Inc. v. Bolton, 11 Md. App. 665, 276 A.2d 413 (1971), we stated:
"The practice, however, seems to have developed that in such cases, the proper procedure is to remand the proceedings to the Commission for original determination of the remaining issues which were thought to be moot in the earlier Commission proceedings."
Id. at 668-69, 276 A.2d at 413.
We hold that the trial court was correct in remanding the case to the Commission for an original determination concerning the issue of whether the presumption in § 64A was, or was not, overcome. However, we do not think it necessarily follows that the taking of additional evidence is required. The Commission may reach a conclusion based upon the record before it, should it deem the record adequate.
*256 IV
The third appellant, Insurance Company of North America ("INA"), filed a motion ne recipiatur in the circuit court because its name was not listed in the caption of the notice of appeal.[6] The motion was denied on February 22, 1980 and again denied on INA's motion for reconsideration. On appeal herein, INA claims the court erred in not granting its motion because of non-compliance with Maryland Rules B4, B5 and B2 (d).
In the appeal before the circuit court, INA was first named as a party on claimant's motion for summary judgment filed on December 27, 1979. We observe, however, and the parties agree, that INA was a party to the proceedings and participated actively before the Medical Board and the Commission.
Although the caption of the claimant's "Petition of Appeal" to the circuit court does not include INA as a party, we think it was sufficient for noting an appeal against it. Under Maryland Rule B2 (a) an order for appeal is "sufficient if the case is titled and captioned therein in the same manner as before the administrative agency from whose order the appeal is taken." Here, the case was titled and captioned in a manner identical to the Commission's order disallowing the claim. See also Redden v. Montgomery County, 265 Md. 567, 290 A.2d 494 (1972).
Furthermore, it is undisputed that counsel for INA was served with copies of the Petition of Appeal and the Appeal From Order of Workmen's Compensation Commission. Also it appears that the Commission notified INA, by letter dated November 22, 1978, that the claimant had entered an appeal. Thus, INA's contention that the Commission did not *257 give it notice of the filing of the appeal under Rule B2 (d) is without merit.[7] We find no error in the denial of its Motion.
Order affirmed; appellants/cross-appellees to pay the costs.
NOTES
[1] This section, originally made applicable to fire fighters by Chapter 695, Laws of 1971, was amended to include police officers, effective July 1, 1972. Subsection (a) provides that any condition or impairment of health caused by heart disease or hypertension resulting in total or partial disability or death shall be presumed to be compensable under this article and to have been suffered in the line of duty and as a result of this employment. Under subsection (b), the benefits provided are "in addition to such benefits as he may be entitled to under the retirement system" in which the officer was a participant at the time of his claim. Total benefits, however, may not exceed 100% of the weekly salary he received.
[2] The court remanded the case to the Commission "to hear evidence solely on the issue of rebutting the presumption" that the claimant's disability was a result of his employment. The claimant filed a cross-appeal challenging the remand.
[3] Also before us is an appeal by the Insurance Company of North America from the lower court's denial of its motion to strike it as a party.
[4] Mr. Jennings was terminated on November 21, 1973. He received regular retirement at that time, without disability pay, based upon his years of service in the Police Department and 4 years of military service in the U.S. Marine Corps.
[5] It was not until February 1973 that the doctor first recommended he retire because of his high blood pressure and heart disease. The claimant suggests that this was the "earliest conceivable indication of `disability.'"
[6] Claimant's Petition of Appeal to the circuit court, filed November 6, 1978, indicated only the Montgomery County Police Department and Hartford Accident and Indemnity Company as the defendant-appellees.
[7] Rule B2 (d) provides:
"d. Notice to Other Parties.
Promptly after receipt of such copy [of the Order of Appeal] the agency shall, unless the court shall otherwise order, give written notice by mail or otherwise of the filing of the appeal to every party to the proceeding before it, or his representative. A certificate of compliance with this section shall be filed in the proceedings by the agency."
Rules B4 and B5 are not pertinent to this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386146/ | 243 F. Supp. 900 (1965)
The CITIZENS & SOUTHERN NATIONAL BANK OF SOUTH CAROLINA, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. No. 4259.
United States District Court W. D. South Carolina, Greenville Division.
Heard June 8, 1965.
Decided July 22, 1965.
*901 C. Thomas Wyche, Wyche, Burgess, Freeman & Parham, Greenville, S. C., for plaintiff.
John C. Williams, U. S. Atty., Greenville, S. C., for defendant.
HEMPHILL, District Judge.
In 1959 plaintiff Bank made "contributions" to the South Carolina Highway Department totalling $27,984.50, and itemized and deducted this amount on its tax return, claiming as charitable deductions under the provisions of 26 *902 U.S.C. § 170(c) (1).[1] The composite consisted of 25,200 square feet of land of $19,000 value, 3400 square feet of $7,000 value and a cash payment of $1984.50 to pay for land belonging to a third party which the Highway Department had to condemn in order to build a road.
The deduction(s) were claimed in conjunction with the construction of a road through the Bank's property and were disallowed as charitable contributions by the Commissioner of Internal Revenue on the theory that they were capital expenditures which must be treated as an element of the cost basis of the remaining land. The Bank filed claims for refund which were disallowed. Subsequently, this suit for refund was instituted covering the year 1959.
Plaintiff, after years of effort at acceptance in Greenville, assumed temporary location there in July 1957. At that time, and subsequently, Alester G. Furman Co., a recognized and established realty firm, was offering[2] as "manufacturing or warehouse property" 7.34 acres in Greenville, known as the "Camperdown Mills" tract, bounded on the North by Main and Murphy Streets of Greenville, on the west by Reedy River, on the east by Choice Street and on the south by property of others. Testimony, including exhibits,[3] reveals the property utterly lacking in aesthetic attraction before plaintiff began development. It appears that this general area had become a blighted area frequented by persons of ill repute and a detriment to the growth of Greenville and particularly the south end of town. The buildings were old and not in use, but at the time of purchase by plaintiff in March 1958 it was intended that the then existing mill buildings be used, and, if not feasible or practical, that the main bank building would be constructed on South Main Street and the remainder of the property would be used or developed as a park or for other purposes; no suggestion of or proposal for a road through the property was in evidence or thought of by the taxpayer.
The roadway in question is a United States Highway. It is the main connector route between Church Street (U. S. Highway 29 and Interstate Highway 385 and 185) and South Main Street (U. S. Highway 123). The City of Greenville has two main north-south highways one, the original Main Street of Greenville and the other a newly constructed expressway parallel to Main Street and on the east known as Church Street. A third expressway on the west side of Main Street, known as Academy Street, is presently under construction. There will be two major new east-west connector streets at either end of the main business district of Greenville joining Main Street with Church Street and Academy Street. These three north-south main arteries together with the two connector east-west, shorter streets, will comprise the business "loop" of the business district of Greenville. The highway in question in this case, hereafter referred to as Camperdown Way, is a major part of the lower east-west connector between Church Street and South Main Street and Academy Street. Camperdown Way, as a U. S. Highway, is an integral part of the United States public highway system, being the direct route joining Interstate Highway 85 with U. S. Highway 123. The testimony shows that since its construction was completed Camperdown Way has become one of the most heavily traveled streets in the City of Greenville and will become *903 even more so upon completion of the business district "loop."
For many years prior to the construction of Camperdown Way the necessity of an east-west connector from South Main Street in an easterly direction had been recognized by civic leaders and city planners. Greenville is blessed with a natural phenomenon of great beauty in the south end of town, the Reedy River Falls. Reedy River crosses under South Main Street and cascades over a rock precipice some hundred feet in height and then meanders in a generally easterly direction out of the City. One of the programs of the Greenville Chamber of Commerce in 1957-58 was the attainment of an east-west road from South Main Street.
After the purchase a director of plaintiff conceived the idea of running the east-west connector between Church Street and South Main Street through the property. The matter was presented to the President of the Greenville Chamber of Commerce and to the officials of the taxpayer. Plaintiff agreed to give the necessary right-of-way through its property and, as the matter finally resolved itself, provided a short additional right-of-way through two lots of land situate on South Main Street. It was initially believed by the persons involved in the preliminary discussions that the property adjacent to South Main Street would be contributed at no cost to the Highway Department for such connecting road.
In view of the fact that representations had been made to the City and Highway officials on behalf of the taxpayer and by the Chamber of Commerce at the inception of the idea that all property owners could be expected to contribute the right-of-way and that no cost would be involved, taxpayer felt it necessary and honorable to follow through on these initial representations or otherwise the highway presumably would not have been constructed. The Court concludes that the right-of-way through the other properties was made available to the Highway Department by the taxpayer not because it desired the road for enhancement of its property but because the taxpayer felt morally obligated to do so.
The testimony is clear and convincing that the taxpayer, being a new business in Greenville, was desirous of doing everything possible to create favorable relations with the community. The revitalization of the blighted Camperdown area was expected by the taxpayer to be a significant step in public relations. When the possible development of the long discussed east-west connection with South Main Street was brought to the attention of the bank officials they realized the opportunity for making a significant community contribution. The Court is impressed with the fact that when the taxpayer first officially considered the contribution of the land for the new highway and authorized a committee to work out the details the taxpayer at the same time authorized the donating of property to the City for a public park.
The government relied heavily on the minutes of the Board of Directors[4]*904 of plaintiff to prove taxpayer was motivated for personal or private benefit rather than community good. It is significant that even after the highway was assured, the taxpayer decided, by formal resolution on February 13, 1959,[5] to proceed with the construction of the bank building on South Main Street as originally planned; thus the new highway would have had little effect on the banking operations. It is clear that plaintiff-taxpayer was not motivated by thoughts of private benefit but, to the contrary, was motivated primarily and substantially by benefit to the public. The testimony clearly shows that at the time of the conveyances the benefit to the taxpayer's property was the same in degree and kind as to other property in the vicinity. For reasons not germane to this decision the taxpayer did construct its new bank building facing on the new highway.
The provisions of the Code allowing charitable deductions do not prohibit a corporation from deriving some benefit, direct or indirect, from charitable contributions. Indeed, it would seem to be requisite and proper that the corporation have some business purpose or derive some benefit from such contributions in order to justify them from a stockholder standpoint. In an excellent annotation captioned "Corporations' Charitable Gifts," 39 A.L.R. 2d 1192, we find, on page 1194:
Where the power is not found either in an enabling statute or in the express provisions of the corporate charter, authority to make charitable contributions must be derived as one implied from the corporation's purpose. Whether or not such a power will be found depends upon such factors as the business of the corporation, the size of the attempted gift, the nature of the charitable institution sought to be benefited, and other relevant factors. Apparently the underlying thread is whether some *905 benefit to the business operations of the corporation can reasonably be expected to accrue as the result of the charitable gift questioned. [Emphasis supplied.]
This requirement is borne out by the statutory provisions with regard to national banks, 12 U.S.C. § 24, Corporate Powers of Associations:
"* * * [A] national banking association shall * * * have power
"Eighth. To contribute to community funds, or to charitable, philanthropic, or benevolent instrumentalities conducive to public welfare, such sums as its board of directors may deem expedient and in the interest of the association * * *." [Emphasis supplied.]
This Court notes that in one of the cases cited by the government (apparently before charitable contributions by corporations were authorized by the Internal Revenue Code) that a corporate benefit was a prerequisite to claiming a deduction.
Corporations are not entitled to deductions for charitable contributions, but under a Treasury Regulation they are authorized to take deductions for `donations which legitimately represent a consideration for a benefit flowing directly to the corporation as an incident of its business * * *.' Chicago & N. W. R. Co. v. C. I. R., 114 F.2d 882, 888 (7th Cir. 1940).
There the Court required the existence of some quid pro quo which here is claimed to defeat the deduction. Though that case is not controlling, it does emphasize the point that some benefits from charitable contributions do not preclude the deduction.
The benefits derived by the taxpayer from this highway are definitely incidental to the public benefit.
The blighted area previously described has been converted into a commercial area of new office buildings of exceptional beauty. The picturesque Reedy River Falls have been opened to the passing public by a large bridge spanning the gorge immediately below the falls. The south end of Greenville has obviously become revitalized with direct, great benefit inuring to the City and County as a result. It is difficult for the Court to imagine a contribution to a state or municipality of such a modest amount that has resulted in such an extraordinary public benefit.
The government contends that the taxpayer made its contribution as a result of an agreement with the South Carolina Highway Department that it would undertake to build the highway. This argument does a disservice not only to the U. S. Highway itself but also to the South Carolina Highway Department. The Highway Department could not "agree" to construct a highway; the decision to construct a U. S. Highway by the U. S. Bureau of Public Roads or State Highway Department is founded on the public need and not a "swap" of a U. S. Highway for a donated right-of-way. As to the taxpayer, or any contributor, it is apparent that a deed to property for road purposes would not be made except upon the belief and expectation that the conveyance would be used. Nor does the fact that a right-of-way is required to be donated before a highway is built affect the nature of the donation. In South Carolina in many instances, especially as to secondary roads, the right-of-way must be contributed before a project will be undertaken by the Highway Department. This is true of many other charitable contributions; a new Y.M.C.A. or church or university can be built only if the land is donated; the United Fund can only take action if the contributions are made. The fact that the donee requires a donation before it will take action does not invalidate the donation as contended by the government. It has been held that if a donor must make a donation before the donor can take action then the donation is for a consideration. For example, in Woodside Mills v. United States, 160 F. Supp. 356 (W.D.S.C.1958) aff'd, 260 F.2d *906 935 (4th Cir. 1958), one of the basis of disallowing a deduction of a claimed charitable contribution of streets was that the donor was required, as a condition to selling its property, to record a plat and thus dedicate its streets. To the same effect, see Rev.Rul. 57-488 cited in the Woodside Mills case, where the taxpayer, in order to obtain approval of a subdivision plan "was automatically required to release to the county certain frontage on each lot to be used to widen the road." It was held that "the land which was required to be released was not a gift but was made as a requirement of law in order to secure the approval by the county planning commission of a plot plan of lots, a prerequisite of the consummation of the sale."
Thus, in these instances, the taxpayer was required to make the conveyances as a condition to the taxpayer's being able to transact its business. In the case at hand the taxpayer had no action to take; it did not have to make a donation as a condition to doing anything.
This case is also to be contrasted with Taynton v. United States, 60-1 U.S.T.C. 9458 (E.D.Va.) and Allis-Chalmers Mfg. Co. v. United States, 200 F. Supp. 91 (E.D.Wis.1961), where there was a property or contractual consideration received by the taxpayer for the "donation" to the charity. Similarly, the reasoning in Commissioner v. Laquna Land & W. Co., 118 F.2d 112, 118 (9th Cir. 1941) does not pass muster as being persuasive here.
There is a recent District Court decision and a Revenue Ruling which are similar on the facts to this case. In Toole v. Tomlinson, Director (S.D.Fla.), C.C.H.T.C., ¶ 9267, the taxpayers had transferred two strips of land to the City of Tampa, one of which was used for a public road as in the instant case, and the other was used for a sewer line right-of-way. "Prior to the trial, the defendant conceded that the north-south strip of land qualified as a charitable contribution * * *" The defendant did not concede that the other conveyance qualified as a charitable contribution.
It was argued in the government's brief that the transfer of these properties was made in anticipation of receipt of economic benefits. The Court ruled that "Although the conveyance involved in this return might have coincidentally benefited the donors, it is the opinion of the Court that the said conveyances qualify as charitable contributions made within the meaning of the Code * *"
Rev.Rul. 64-205 held deductible a restrictive easement in favor of the Federal Government to enable it to preserve the scenic view afforded certain public properties. The taxpayer gratuitously restricted his parcel of land which presented a scenic view to a nearby Federal Highway; the restrictions pertained to the type and height of buildings, type of activities for which they may be used, size of parcels of land to be sold, etc. It was held that the conveyance of this restrictive easement was a charitable contribution within the meaning of Section 170(c) of the Code.
It is significant that the question of benefit also accruing to the donor was not discussed in this Ruling although it appears obvious that such restrictions would enhance the value of the donor's property in the same way that residential restrictions enhance a residential subdivision. This ruling is consistent with the Court's interpretation of Section 170(c).
CONCLUSION
Section 170(c) is not to be construed as applicable only in the event the donor receives no benefit, tangible or intangible, from a contribution. Nor does it seem that motives of a taxpayer in making charitable contributions are relevant if compliance with the statute is otherwise had.
If these factors are relevant, the Court concludes that the motive of the taxpayer, primarily and substantially, in making the contribution, was for public good and not private benefit and that, while it was in the interest of the taxpayer, from a corporate standpoint, to make the contributions, the *907 benefits accruing to the taxpayer were only incidental to the public purpose and public benefit.
The contributions were for exclusively public purposes and meet the requirements of Sec. 170(c) of the Internal Revenue Code.
The property conveyed to the South Carolina Highway Department consisted of one parcel of land containing 25,200 square feet (for the new highway) having a fair market value at the time of the conveyance of $19,000.00 and another parcel of land containing 3400 square feet (for widening the intersecting street) having a fair market value at the time of the conveyance of $2600.00 which, together with the cash contribution totaled $27,984.50.
The taxpayer is entitled to a charitable deduction in this amount. The parties have stipulated that appropriate adjustments will be made in the income tax returns of the taxpayer in accordance with this decision. The Court will not, therefore, award a money judgment at this time, but the plaintiff is entitled to refund of taxes, together with interest based on the deduction herein allowed.
And it is so ordered.
NOTES
[1] Which reads as follows:
"(c) Charitable contribution defined. For purposes of this section, the term `charitable contribution' means a contribution or gift to or for the use of
"(1) A State, a Territory, a possession of the United States, or any political subdivision of any of the foregoing, or the United States or the District of Columbia, but only if the contribution or gift is made for exclusively public purposes."
[2] Plaintiff's exhibit 6 was a brochure on this property.
[3] Plaintiff's exhibits 2 and 3 were pictures of the property before development.
[4] Significant parts of which read:
February 14, 1958 "The Board was advised that after considerable study of a number of possible locations for a permanent office in the City of Greenville, the Officers of the Bank had concluded to purchase a tract of land, known as the Camperdown tract, which consists of approximately eight acres of land, 4½ acres of which are usable. The cost of this property is $180,000.00. The property, in addition to the land, contains a number of buildings formerly used by the Camperdown Mills. The Officers feel that there are a number of possibilities for the use of the area which will provide, not only sufficient space for adequate banking quarters but which will provide an investment for the Bank. It is felt that some of the buildings will be possibly put to some commercial use which will bring a return on the investment. Upon motion duly made and seconded, the Board authorized the Officers to proceed with the purchase of this property."
March 14, 1958 "President Lane advised the Board that the purchase of the Camperdown Mill Property had been completed and that Title to the property had been taken in the name of a Nominee. He then called on Mr. Wyche to explain to the Board some plans which had been developed concerning the opening of a proposed road through the property. The President then briefly outlined to the Board, the plans which the Bank had for utilizing this property and for making it productive of income to the Bank."
April 11, 1958 "President Lane discussed completely with the Board several proposals for various uses of the Camperdown Mill Property, advising the Board that discussions had been held with the Comptroller of the Currency's Office regarding possible ways of handling the capitalization of this Property. He also discussed with the Board the need for a road through this property which would connect Pendleton Street with either Falls Street or Choice Street in order to divert a portion of the traffic now using Pendleton Street into these other streets and to bring this traffic through the main part of the Property. He advised the Board that discussions were being carried on on the basis that we would possibly donate a part of this property to the Highway Department for the construction of this road. One of the propositions involved would render a small portion of the property undesirable for business buildings, but highly desirable for a park or recreation area. Upon his recommendation, the Board unanimously authorized Mr. Lane, Mr. Austin, Mr. Mickel, Mr. Bahan and Mr. Wyche to work out the details of the plan most beneficial to the Bank and approved their donating such portions of this property, as they think beneficial to the Bank, to the City of Greenville or the State Highway Department for the construction of this road or for use as a public park."
[5] Which reads: "President Lane discussed with the Board the possible location on the Camperdown site of the Bank building which is to be erected for the Greenville Office. Upon motion duly made and seconded, the Board approved the placing of this building on the plot of ground, adjacent to Main Street with a setback of approximately fifty (50) feet from Main Street which will permit ingress and egress onto the property from the Main Street Bridge; the remainder of the property to be retained by the Bank for future development." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386148/ | 243 F. Supp. 417 (1965)
In the Matter of Irving Reginald CHAPPEL, Jr., Bankrupt.
No. 173825-EC.
United States District Court S. D. California, Central Division.
July 21, 1965.
Crowley & Goffin, by Ron Swearinger, Los Angeles, Cal., for petitioner on review.
Stodd & Barnett, by John P. Stodd, Santa Ana, Cal., for trustee.
CRARY, District Judge.
Petitioner, Loraine H. Chappel, wife of the bankrupt, Irving R. Chappel, seeks review of the Referee's order dated April 6, 1965, requiring petitioner to turn over to the trustee in bankruptcy "all of the property heretofore transferred to her under the Interlocutory Decree of Divorce and Property Settlement Agreement," or the proceeds derived therefrom. The Referee's Certificate on Petition for Review was filed on May 6, 1965.
A property settlement agreement, executed by the bankrupt and petitioner on February 11, 1964, was incorporated into an interlocutory decree of divorce entered on March 5, 1964. Pursuant to said agreement, petitioner received more than one-half of the community property, the bankrupt agreed to pay family debts and obligations totaling $22,756.01, petitioner agreed to pay $2,000.00 to Irving Chappel's parents upon the sale of the residence in Newport Beach, and petitioner "For and in consideration of this Agreement * * * hereby expressly waives any and all claims which she has to alimony and support for all time."
The parties were married on January 24, 1959. Final judgment of divorce was entered on March 5, 1965.
*418 The within proceedings in bankruptcy were instituted June 24, 1964.
During oral argument, July 12, 1965, counsel for the petitioner and Referee stipulated that the only issue to be determined is whether the transfer to petitioner of the community property in excess of the wife's one-half vested interest therein was without fair consideration and therefore fraudulent within the meaning of Section 67, sub. d(2) (a) of the Bankruptcy Act, 11 U.S.C. § 107, sub. d(2) (a) and § 3439.04 of the California Civil Code; that is, whether the foregoing of any right to alimony by the petitioner, Mrs. Chappel, was fair consideration for the community property she received in excess of one-half thereof.
Section 67, sub. d(2) (a) provides:
"Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer or obligation, if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent; * * *."
and, Section 3439.04, California Civil Code, states:
"Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration."
Counsel for petitioner and Referee also agreed that there was no bad faith claimed on the part of petitioner and that the only fraud urged is statutory fraud as referred to in the state and federal statutes quoted hereinabove.
The Court of Appeals for the 9th Circuit, in Britt v. Damson, 334 F.2d 896 (1964), makes very clear that the transfer to the petitioner of one-half of the community property was supported by "fair consideration" as a matter of law. At page 903, the court states:
"To the extent that the value of the community property awarded to Mrs. Damson was offset by the value of the community property awarded to Mr. Damson, the `transfer' to Mrs. Damson was, as a matter of law, supported by `fair consideration,' as that term is defined in section 67, subd. d(1) (e). To this extent the award to each amounted to no more than an equal partition of property in which, as indicated above, they each at all times had a vested, equal undivided interest."
As to the transfer of property to Mrs. Chappel in excess of one-half of the community property, the court, in the Britt case, observes:
"To the extent that the award of community property to Mrs. Damson may have exceeded half of the total value of the community property, there is a question whether, under all of the circumstances, Mr. Damson received fair consideration as a matter of law.13 As the parties have not presented argument on this question we leave it undecided at this time."
It appears to this court that footnote 13, as indicated in the portion of the opinion last quoted above, is of particular import in the instant matter. Said footnote 13 reads in pertinent part as follows:
"13. It could be argued that obtaining one's release from a marriage, pursuant to a decree of divorce, and in connection therewith, obtaining a limitation upon the obligation, not terminated by divorce, to provide future support, such limitation being effectuated by a provision for alimony, give rise to a conclusive presumption of `fair consideration' for any transfer of community property made under that decree, unless made in bad faith or fraudulently."
*419 The court concludes in the case at bar that if the husband did not receive fair consideration as a matter of law for the excess of one-half of the total community property transferred to his wife, then there will be a question of fact to be resolved as to this point.
The Referee, by his Finding No. 6, found
"That the bankrupt herein was insolvent on February 11, 1964, when the Property Settlement Agreement was completely executed by the parties, and was also insolvent on March 2, 1964, the date the Interlocutory Decree was entered."
Under the stipulation of counsel at the time of oral argument, we now know that this finding of "insolvency" is dependent on the question of whether the transfer of community property in excess of 50% thereof to the wife was without fair consideration.
The Referee, in Conclusion of Law No. 1, states that the property settlement was without adequate consideration and therefore presumed fraudulent as to the trustee in bankruptcy. In Conclusion of Law No. 2 he states that since no final decree of divorce had been entered prior to the time Mr. Chappel was adjudicated a bankrupt "* * * the interlocutory decree of divorce and hence the incorporated property settlement agreement were ineffectual to change the character of the community property of the parties." In reaching this conclusion, the Referee relied on In re Cummings, 84 F. Supp. 65, 70 (D.C.Cal.1949), in which the Court said:
"In sum, the interlocutory decree is merely a determination that after the lapse of a year, the parties would if no impediments have arisen be entitled to a decree dissolving the marital relation and disposing of the community property in the manner described in the interlocutory decree. Its provisions are not operative until the entry of the final decree * * *."
In the paragraph preceding this statement, the Court quoted with approval the following sentence from Estate of Boeson, 201 Cal. 36, 40; 255 P. 800, 802 (1927):
"The obtaining and entry of an interlocutory decree of divorce does not sever the marital relation, and any disposition of property made thereby becomes effective only upon the entry of the final decree."
In Leupe v. Leupe, 21 Cal. 2d 145, 148, 130 P.2d 697, 699 (1942), the Court expressly disapproved of language in the Boeson case that was in opposition to its holding that
"* * * the trial court is without jurisdiction to modify an unqualified disposition of property rights made in an interlocutory decree of divorce except in accordance with the methods applicable to judgments generally, time for which had expired in this case before respondent's motion was made. Even though a final decree is not entered, the interlocutory decree becomes a conclusive adjudication and is res judicata with respect to all issues determined." [Citing cases.]
And, the Court observes at page 700, of 130 P.2d:
"* * * The time for appeal having elapsed, the determination of property issues in the interlocutory decree became final and was no longer subject to modification except in accordance with the methods applicable to judgments generally. It follows that the court could not alter the decree * * *."
As to the case of Estate of Boeson, supra, the Court, in the Leupe case, supra, states at page 699, of 130 P.2d:
"This statement of the law has not been followed and has also been characterized as dictum. * * * Insofar as the language of these cases suggests that a court is without jurisdiction to make an unqualified disposition of property in an interlocutory decree of divorce, it is *420 in opposition to the cases previously cited and must be disapproved."
In the instant case, the record on review discloses that neither an appeal has been taken from the interlocutory decree nor a motion made for relief under California Code of Civil Procedure Section 473. Since the decree in the instant case was entered on March 5, 1964, the time for appeal, or for relief under Section 473, has expired and the interlocutory decree has effectively and conclusively disposed of the property. See In re Snow's Estate, 152 Cal. App. 2d 800, 314 P.2d 82 at 83 (1957).
Having in mind the question to be determined, as noted above, and that the only issue of fraud or bad faith is the statutory fraud referred to above, and after considering the authorities cited and discussed, it appears to the court, in the circumstances, that the interlocutory decree of divorce, having incorporated the property settlement agreement, finally disposed of the community property and the obligation of Mr. Chappel to support his wife by way of alimony, and that this fact gives rise to a rebuttable presumption that the waiver of alimony was fair consideration for the excess over 50% of the total value of the community property awarded the wife.
In determining "fair consideration", it is to be noted that Section 67, sub. d(1) (e) of the Bankruptcy Act, 11 U.S.C. § 107, sub. d(1) (e), provides:
"(e) consideration given for the property or obligation of a debtor is `fair' (1) when, in good faith, in exchange and as a fair equivalent therefor, property is transferred or an antecedent debt is satisfied, * * *."
Counsel for the trustee urges that the value of the waiver of alimony is impractical and as a matter of fact impossible of ascertaining and that, therefore, in cases of this nature and like circumstances a property settlement agreement incorporated in an interlocutory decree must be set aside on the husband's adjudication in bankruptcy as to any amount in excess of 50% of the community property awarded the wife, thus defeating any rights of the wife to an excess of 50% which may have been awarded to her as consideration for her waiver of all rights to alimony following good faith negotiations between the parties.
The Court does not conclude that the rights of the wife to alimony, now finalized by the interlocutory decree of divorce, may be summarily denied in the circumstances because the value of the said rights to alimony may be difficult to ascertain. Although the determination of the value of the right to alimony waived by the wife herein may be fraught with some problems, we must remember that the husband and wife and their counsel worked this problem out before the property settlement was executed and the same factual elements as well as possible expert testimony in this field may well be presented to the Referee on further hearing of the issue. The Referee may decide that the husband and wife did not arrive at the correct answer value wise, but the reasonable value of the wife's right to alimony at the time of the execution of the property settlement, it appears to the court, is well within the realm of the fact finding powers of the Referee.
The matter is remanded to the Referee with the request that further hearing be had therein. The court concludes that in view of the decision in the Britt case, supra, that the Referee should make a finding, after a consideration of all of the evidence now before him and any additional evidence which may be adduced by way of experts or otherwise, as to whether the waiver of alimony by the petitioner in this case is fair consideration, within the meaning of the statute, for the excess over one-half of the total value of the community property transferred to petitioner under the property settlement agreement. If it be found that the waiver of alimony be not such "fair consideration," in the circumstances, then there should be a finding as to what extent it falls short thereof. The court makes no finding as to the gross or *421 net value of the community property of the parties. It is further requested that the Referee make new Findings of Fact and Conclusions of Law and Order following further hearing in the matter, conforming to the authorities cited and discussed hereinabove and the suggestions of the Court in the within Memorandum. The Findings of Fact and Conclusions of Law of the Referee which are in conflict with said authorities, as indicated by the within Opinion, are set aside and the Order of the Referee as made on April 6, 1965, is set aside pending the making of new Findings of Fact and Conclusions of Law and Order in conformity therewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386155/ | 243 F. Supp. 496 (1965)
UNITED STATES of America, Plaintiff,
v.
Leon I. ROSS, Ross and Company, Limited, and Central Trading, Inc., Defendants.
United States District Court S. D. New York.
April 28, 1965.
*497 Robt. M. Morgenthau, U. S. Atty., Thomas H. Baer, Asst. U. S. Atty., of counsel, for defendant Leon I. Ross.
Farber, Cohen & Diamond, New York City, Frank R. Cohen, New York City, of counsel, for defendant Leon I. Ross.
LEVET, District Judge.
The United States of America, plaintiff herein, has moved for an order
(1) adjudging the defendant Leon I. Ross in contempt of orders of this court filed July 28 and August 7, 1961, as modified and affirmed, requiring him to transfer certain properties therein specified to a receiver;
(2) adjudging and fixing damages in the total amount of the expenses of administering the receivership to date as the amount of damages to which the United States of America is entitled as a result of said contempt;
(3) fixing a fine;
(4) ordering Ross to comply with said orders to purge his contempt; and
(5) directing the arrest of Ross by the United States Marshal and his confinement until his compliance with the said orders and payment of damages and a fine, if any, or until otherwise discharged under law pursuant to Rule 14 of the Civil Rules of the United States District Court for the Southern District of New York.
The action is brought to collect taxes in the amount of $2,224,675.85 plus interest due and owing from Ross to plaintiff.
ORDER OF JULY 28, 1961
On or about July 28, 1961, Judge Dimock of this court made an order requiring that defendant Leon I. Ross, his agents, servants, employees, etc. be restrained from selling, transferring, etc. any and all property of the said defendant wheresoever situated pending the hearing and determination of this action; appointing George Zeidenstein, Esq., receiver (later superseded by William H. Mulligan as receiver) of the property of said Ross with all the powers of a receiver in equity, and further directing the said Ross to assign and transfer and deliver to said receiver any and all shares of stock in Ross and Company, Limited, a corporation of the Bahamas, and in Central Trading, Inc., a corporation of Liberia, standing in the name of said Ross or in his possession or ownership wherever the same may be located.
This order was modified on or about August 7, 1961 by an order of Judge Herlands of this court which provided that the above-mentioned order directing delivery of the said shares would be "deemed satisfied by having said stock deposited with reasonable dispatch (but not later than 12 noon, August 12, 1961) with the clerk of this court who will hold said stock pending the hearing and determination of this application [for reargument] and subject to the further order of the court." The motion for reargument was denied on August 21, 1961.
On or about August 19, 1961, the said order of July 28, 1961 was amended by the addition of the following:
"IT IS ORDERED, that defendant Leon I. Ross, in his capacity as a shareholder, director and/or officer of Ross and Company, Limited, a corporation of the Bahamas, and Central Trading, Inc., a corporation of Liberia, and any and all agents, servants, employees, officers, attorneys and all persons in active concert and participation with him in his capacity as a shareholder, director or officer of said corporations, be and they hereby are restrained from selling, transferring, pledging, encumbering or in any way removing from their present locations, any and all property of said corporations wheresoever situate, pending the *498 hearing and determination of this action."
MODIFICATION BY THE COURT OF APPEALS
On May 3, 1962, 302 F.2d 831, the court of appeals affirmed the orders appealed from but modified the same by the addition of the following language:
"Before turning over to the receiver the stock certificates of the two corporations, defendant Ross shall apply for such official consent to such transfer as may be required.
"Before taking possession of any of the books and papers of said corporations the receiver shall apply to the District Court, on notice to the appellant, for leave to do so."
The government asserts that the defendant Ross has never complied with the said orders or the mandate of the Court of Appeals.
FAILURE TO TRANSFER PROPERTY WITHIN THE UNITED STATES TO THE RECEIVER
The order of Judge Dimock dated July 28, 1961, as above stated, provided that Ross should turn over all property within the United States to the receiver. This, the government asserts, Ross has failed to do and has thereby required the receiver to retain counsel to pursue such property.
On or about July 23, 1964, after a petition by the said receiver, Judge Charles H. Tenney of this court granted the receiver permission to pay his attorneys the interim fee of $3,500 plus disbursements of $377.17 and indicated in his opinion that fees for further services to be rendered by the receiver's attorney in further pursuit of the property of Ross which Ross had refused to voluntarily transfer might ultimately be in order.
DEFENDANT'S AFFIDAVITS, etc.
In an affidavit submitted by the attorneys for Ross, to wit, Clearly, Gottlieb, Steen & Hamilton, upon the hearing of this motion, Ross asserts the following reasons for inability to comply with the court's orders:
(a) The stock of Central Trading, Inc. was never owned by him and prior to the institution of this action had been owned by Ross and Company, Limited and that, therefore, the orders did not require transfer of this stock by Ross and Company, Limited.
(b) That on or about July 22, 1961 and prior to Judge Dimock's order of July 28, 1961, Ross transferred all of his shares of Ross & Company, Limited which he then owned to Messrs. Ciglen, Phillips, Cravit and Gilbert, attorneys, with offices at 121 Richmond Street W., Toronto 1, Canada, and that such transfer was made to such persons as attorneys for Transamerican Holdings, Ltd., a corporation with which Ross and Company, Limited had been doing business and to effect a pledge of the stock in order to secure an obligation of Ross and Company, Limited to deliver certain bonds to Transamerican Holdings, Ltd.; that this pledge had not been released.
To substantiate this statement, at a subsequent hearing held before this court on March 5, 1965, the attorneys for Ross, now Farber, Cohen & Diamond (Frank R. Cohen, Esq., of counsel), submitted and marked into evidence Exhibit E.
(c) That since on or about December 31, 1962, Ross' stock in Ross & Company, Limited had been a minority interest consisting of 4% of the stock of that company; that on or about that date Ross and Company, Limited issued to Ross' wife, Helen, a citizen of Canada but a resident of the Bahamas, 24 shares of stock having a par value of £1 per share in return for £24,000, the stock being issued because the corporation was in dire need of funds for the operation of its business; that the said stock so issued was worth no more than its par value; that the purchase price for the said stock was supplied by Ross' wife from her own funds obtained from the sale of other securities in her own name and owned by her prior to her marriage to Ross. Subsequently, and at a hearing held by this court on March 5, 1965, the attorney for Ross, Frank R. Cohen, produced what appeared to be copies of the *499 meeting of shareholders of Ross & Company, Limited, held at the registered offices of the company in the City of Nassau on December 12, 1962, at which time a resolution purportedly was passed increasing the capital of the company by the creation of a further 24,000 shares of the par value of £1 each. (Ex. CC-1) Another extraordinary general meeting of the shareholders was held in the same place on December 31, 1962 at which the said resolution was confirmed. (Ex. CC -2) In a letter from Frank R. Cohen of Farber, Cohen & Diamond, attorneys for Ross, Mr. Cohen offered a letter from the Exchange Control in the Bahamas, dated December 31, 1962, permitting the issuance to Mrs. Helen Ross of 24 shares of stock for the sum of £24,000. (See Ex. C) There is evidence that Mrs. Ross paid for this stock by selling certain Canadian securities of Mrs. Ross held by Crown Trust Company in Toronto, Canada. (Exs. DD, F)
(d) Ross further states that the Articles of Association of Ross and Company, Limited provided that no shares of that corporation may be transferred without the prior approval of the Board of Directors and if any transfer is made title of such shares shall remain in the hands of the transferor until such approval is given; that the Board of Directors has indicated that no approval will be given to any transfer which is ordered by a foreign government.
Ross further states that he has no property in the United States except the so-called Fisher's Island real property which is already in the hands of the receiver and that the receiver did not demand that any action on his part be taken at any time after "the entry of the opinion of the Court of Appeals modifying the orders of the District Court."
Any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice or which is calculated to lessen its authority or dignity is a contempt. See United States v. Pearson, 62 F. Supp. 767, 769 (N.D. Cal.1945).
A "civil contempt" is a litigant's failure to do something ordered done by the court in a civil action for the benefit of the opposing party therein. But a contempt is civil also when punishment is wholly remedial, serves only the purposes of the complainant, and is not intended generally as a deterrent to offenses against the public. See Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946).
Civil contempt is a sanction to enforce compliance with an order of the court. Sauber v. Whetstone, 199 F.2d 520, 523 (7th Cir. 1952); McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S. Ct. 497, 93 L. Ed. 599 (1949).
In civil contempt proceedings the question is not one of intent but whether the alleged contemnors have complied with the court's order. See National Labor Relations Board v. Lawley, 182 F.2d 798 (5th Cir. 1950). The contempt charged here appears to be civil. See McCrone v. United States, 307 U.S. 61, 59 S. Ct. 685, 83 L. Ed. 1108 (1939); Nye v. United States, 313 U.S. 33, 61 S. Ct. 810, 85 L. Ed. 1172 (1941).
In the present case, although it is unnecessary, as above stated, to prove intent, it is obviously necessary for the United States in this proceeding to prove that the alleged contemnor, Leon I. Ross, violated the orders. This the United States has failed to do. The papers presented by the United States do not show a violation of the orders concerned. The papers submitted on behalf of Ross indicate no violation of the orders. No request has been made for any further hearing.
Accordingly, the motion to hold Ross for contempt and further other allied relief is denied.
Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386157/ | 494 Pa. 219 (1981)
431 A.2d 228
ALEXANDER & ALEXANDER, INC.
v.
CENTRAL PENN NATIONAL BANK, John G. Berg, Franklin Equity Corp. (formerly Franklin National Prop. Inc.), Arcon, Inc., Applied Resources Corporation and/or Applied Resources Associates, Bo Brock Realty Co., Walton Road Corporation, John Lofton, Inc., English Village Associates, Montgomery County Industrial Development Authority, Plymouth Meeting Management Corp., James W. Hughes & Co., J.W. Hughes Construction Co.
Appeal of John G. BERG.
Supreme Court of Pennsylvania.
Submitted January 19, 1981.
Decided July 2, 1981.
*220 *221 David J. Ackerman, Philadelphia, for appellants.
Jess Leventhal, Philadelphia, Roger B. Reynolds, Jr., Norristown, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION OF THE COURT
FLAHERTY, Justice.
This is an appeal from an Order of the Superior Court affirming the Order of the Court of Common Pleas of Montgomery County, refusing to release collateral posted for a bond. We reverse.
In 1975 appellee, Alexander & Alexander, sued appellant Berg and eleven other defendants. The gist of the complaint is that the defendants "jointly and severally" requested the appellee to issue certain bonds, policies of insurance and endorsements, and that these instruments were issued pursuant to the requests of the defendants, but the premiums were not paid. Alexander sued for payment and won a default judgment in Philadelphia County in the amount of $18,254.19. The judgment was transferred to Montgomery County and Alexander obtained a writ of execution. Thereafter, Berg, the appellant herein, petitioned for and was granted a stay of execution pursuant to Pa.R.C.P. 3121, which provides that execution shall be stayed upon entry of bond, with security approved by the Prothonotary. Berg submitted a stock certificate with a value of $37,500.00 as security on the bond. Following unsuccessful appeals to the Superior Court and this Court challenging the default judgment, Berg petitioned for and was granted a modification of the judgment against him personally, fixing his liability at $502.00 plus interest. Berg paid this sum to Alexander, who *222 then petitioned the court to vacate the stay of execution. The court vacated the stay and pursuant to the terms of his bond Berg petitioned for return of his $37,500.00 stock certificate. Berg's petition was denied and this appeal followed.
Alexander argues that Berg is liable on the bond for the entire amount of the judgment which is unpaid. Berg argues that the bond, by its terms, released him from liability when the court vacated the stay of execution. The bond provides:
KNOW ALL MEN BY THESE PRESENTS, that I, John G. Berg, Esquire, hereinafter called "Obligor," am held and firmly bound unto the Commonwealth of Pennsylvania and/or Alexander & Alexander, Inc. in the just and full sum of Twelve Thousand Dollars ($12,000), lawful money of the United States to be paid to the said Obligee; to which payment, will and truly to be made and done, I hereby bind myself, my heirs and personal representatives, and every one of them, jointly and severally, firmly by these presents. Sealed with my seal this 19th day of March 1976.
The condition of this obligation is such, that, whereas, in and by a certain writ of execution issued in the above-captioned action, the sheriff of Montgomery County did levy upon and attach certain property located in Suite 100, Plymouth Plaza, Plymouth Meeting, Pennsylvania, for the satisfaction of a judgment in the amount of Seventeen Thousand Eight Dollars ($17,008) with interest and costs.
Now if the said Obligor, his heirs or his personal representatives, shall and will satisfy the judgment, interest and costs, within ninety (90) days hereinafter, then the above obligation to be void and of no effect, and otherwise to be and to remain in full force and virtue until leave of Court is granted to further pursue the execution.
The Superior Court correctly recited the law respecting the construction of covenants in a bond:
The covenants in a bond should be construed to mean what the parties intended in so far as that intention can *223 be ascertained by the words used . . . . If, however, the language is not free from doubt, then the circumstances surrounding the making of the bond, and particularly the purpose for which it was given, should be taken into account. (Citations omitted.)
E.P. Wilbur Tr. Co. v. Eberts, 337 Pa. 161, 168, 10 A.2d 397, 400 (1940). Contrary to the lower court, however, we find no ambiguity in the language of the bond. Furthermore, even if the language were unclear, the circumstances surrounding the making of the bond would require a result different from that reached by the courts below.
The lower courts (Spaeth, J. dissenting) and Alexander fasten their attention on one word in the last paragraph the word "and" and interpret the paragraph to require that in order for Berg to be released from the bond he must fulfill two conditions: (1) he must pay the judgment and (2) the court must vacate its stay of execution. Not only does this interpretation defy the plain meaning of the instrument, but also, if given effect, would work an injustice on Berg.
The provisions of the last paragraph are written in the disjunctive. The proper focus of attention is the phrase "and otherwise," not the word "and" in isolation. A paraphrase of the sense of the instrument is that Berg will remain liable on the bond until he pays the judgment; and otherwise [i.e., if he does not pay the judgment] he will remain liable on the bond until the court vacates the stay of execution. The word "and" is used not to signal the presence of a conjunctive condition for release, but merely to connect the main clause with another clause having to do with the same subject matter. The word "and" is a grammatical connector of clauses, not a connector of conditions for release.
As to the injustice that would result from the lower courts' interpretation of the instrument, consider that Berg was sued with eleven other co-defendants in a lawsuit which alleged that he was jointly and severally liable for the amount of the judgment, $18,254.19. Berg alleged and *224 subsequently proved that he was not liable for this amount, but for $502.00, which he then paid. But in order for Berg to be able to contest the default judgment, he was required to move for a stay of execution and to execute a bond, pursuant to Pa.R.C.P. 3121. It would be manifestly unjust to require that Berg not be released from the bond after he had successfully adjudicated his claim and paid his liability, where, as a condition precedent to adjudicating his individual liability, Berg was required to execute a bond, and where the terms of the bond require release.
If the judgment had been satisfied, there could be no execution. We conclude the language in the bond itself requires that the bond be voided and the collateral returned to its owner.
Reversed with directions to the Court of Common Pleas of Montgomery County to release Berg's collateral and to declare the bond void. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386173/ | 431 A.2d 18 (1981)
Millard A. HICKS, Appellant,
v.
UNITED STATES, Appellee.
No. 80-714.
District of Columbia Court of Appeals.
Submitted January 22, 1981.
Decided May 20, 1981.
*19 Vincent A. Jankoski, Washington, D.C., appointed by this court, was on the brief for appellant.
Charles F. C. Ruff, U.S. Atty., and John A. Terry, and Karen J. Krug, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.
Before KELLY, HARRIS and FERREN, Associate Judges.
FERREN, Associate Judge:
Having denied a Motion to Suppress Physical Evidence, the court in a non-jury trial found appellant, Millard A. Hicks, guilty of possession of heroin. See D.C. Code 1973, §§ 33-401(n), -402(a). The only question on appeal is whether the trial court erred in finding probable cause for appellant's arrest and search, without permitting defense counsel to cross-examine a police detective to the point of revealing the concealed location from which he had observed the transactions in drugs. We hold that (1) the government has a qualified privilege to withhold the location of a secret surveillance post; and (2) because the evidence adequately established probable cause *20 for arrest and failed to reveal a substantial reason to doubt the detective's testimony, the trial court properly exercised its discretion in refusing to allow cross-examination as to the precise location of the surveillance post in this case. Accordingly, we affirm.
I.
Detective Roth Swope of the Metropolitan Police, assigned to the Third District Drug Enforcement Unit, was the only witness at the suppression hearing. He testified that on July 11, 1979, he had been "making observations from a concealed location," aided by seven-power field glasses, in the vicinity of the 1700 block of 14th Street for the purpose of detecting "trafficking of heroin." Approximately 40 feet away, he observed appellant hand money to two other individuals, later identified as Williams and Shelton, while the two were seated on a wall in the 1700 block of 14th Street. When a uniformed police officer came into the area, the three departed.
Soon thereafter, Detective Swope observed the three approximately 65 or 70 feet away in a parking lot that runs between the 1300 block of Riggs Place and the 1300 block of S Street. At some point, Shelton met with another unnamed individual in the parking lot. Detective Swope could not see what took place between these two because his view was obstructed. When Shelton walked away from this other individual, however, Detective Swope saw him hand Williams a small white object, similar in size and color to objects used in the sale of heroin which the detective had observed and recovered in the 14th Street area. Williams then handed the object to appellant. At this time, Detective Swope radioed other police officers; they arrested appellant in the 1800 block of 14th Street. The officers found heroin in a search incident to the arrest.
Detective Swope also testified about his experiences in observing narcotics traffic during his six years on the police force. He stated that he had participated in at least 50 arrests for heroin violations in this one-block area. In addition, he testified that he had seen this kind of transaction on at least 100 occasions, and that every time the small white object was recovered, it turned out to be heroin. The detective also stated that "the 1800 block of 14th Street is the top or one of top areas for retail sales of heroin in the Washington Metropolitan area."
On cross-examination, appellant attempted to establish that Detective Swope could not have witnessed both transactions: the initial payment of money and the later delivery of drugs. Several times appellant's counsel asked Swope to indicate on a diagram the point from which he had made his observations. The government objected to these questions. Each time the court responded that, although it was not absolutely precluding such inquiry, it would permit appellant to ask the officer's specific location only upon a showing of reasonable necessity.
In an effort to lay the necessary foundation, appellant's counsel asked Detective Swope to draw a diagram of the scene. Counsel established through the detective's testimony that a five-foot wall separated the two places where the transactions had taken place. Detective Swope could not remember whether cars had been parked in the lot where the second exchange had occurred. The detective also testified that there were several buildings in the area, the tallest of which was approximately six stories high. Counsel then asked the officer if he had made his surveillance from this building. The government objected and the court responded as follows:
[W]hat you're trying to do is pin down the exact location in which the Officer made his observation. You're wasting time doing that. I've told you that it appears to the Court that there appears to be no reasonable necessity in this case at this time for that information and that ruling is on the record. Now there's no point in trying to get around it! I mean you're just wasting your time doing that.
The trial court rejected appellant's argument that the five-foot wall and other obstacles in the area made it impossible for Detective Swope to observe both transactions: *21 "[T]he Court finds the Government's witness in this matter in his testimony of his observation to be credible and the Court credits his testimony as to his observations." Accordingly, the court denied appellant's motion to suppress the narcotics.
Six months later in a non-jury trial, the court found appellant guilty of possession of heroin. See D.C.Code 1973, §§ 33-401(n), 402(a). The court imposed a one-year prison sentence, suspended its execution, and placed appellant on 18-months' probation. This appeal timely followed. See D.C.Code 1973, § 11-721(a)(1); D.C.App.R. 4 II(b)(1).
II.
The first question is whether (and, if so, to what extent) the government has a privilege to withhold the location of a secret surveillance position. We conclude that there is such a privilege and that the trial court, in the exercise of sound discretion, is to determine whether in a particular case the privilege must yield to the defense right of cross-examination.
The Sixth Amendment establishes the right of every defendant in a criminal prosecution "to be confronted with the witnesses against him." Inherent in the right of confrontation is the right to cross-examine a witness. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1109, 39 L. Ed. 2d 347 (1974); Alford v. United States, 282 U.S. 687, 691, 51 S. Ct. 218, 219, 75 L. Ed. 736 (1931); Springer v. United States, D.C. App., 388 A.2d 846, 854 (1978). Beyond the constitutional minimum, however, the trial court has discretion to decide the extent and scope of cross-examination. Alford, supra, 282 U.S. at 694, 51 S. Ct. at 220; Springer, supra, at 854.
A basic function of cross-examination is to explore credibility, Davis, supra, 415 U.S. at 316, 94 S. Ct. at 1110; Alford, supra 282 U.S. at 692, 51 S. Ct. at 219, see generally McCormick on Evidence § 29 (2d ed. 1972 & Supp.1978), and counsel therefore properly uses it as an exploratory tool. See, e. g., Alford, supra 282 U.S. at 692, 51 S. Ct. at 219; United States v. Fowler, 151 U.S.App. D.C. 79, 81, 465 F.2d 664, 666 (1972). See generally McCormick, supra § 29, at 58-59. Exploratory cross-examination may be especially important because of the limitations on pretrial criminal discovery. See Fowler, supra at 81, 465 F.2d at 666.
The right to cross-examination notwithstanding, courts long have recognized an "informant's privilege," which allows the government to withhold the identities of persons who furnish information to law enforcement officers about the commission of crimes, as long as confidentiality does not jeopardize the fairness of the proceedings. See, e. g., McCray v. Illinois, 386 U.S. 300, 305, 87 S. Ct. 1056, 1059, 18 L. Ed. 2d 62 (1967); Roviaro v. United States, 353 U.S. 53, 59-61, 77 S. Ct. 623, 627-628, 1 L. Ed. 2d 639 (1957); Hooker v. United States, D.C. App., 372 A.2d 996, 997 (1977); Savage v. United States, D.C.App., 313 A.2d 880, 884 (1974).[1]See generally 8 Wigmore on Evidence § 2374 (McNaughton rev. 1961 & Supp.1980).
Law enforcement interests in surveillance positions are analogous to those concerning informants. If an observation location becomes known to the public at large, its value to law enforcement probably will be lost. The revelation, moreover, may jeopardize the lives of police officers and of cooperative occupants of the building. These potential consequences mandate the same qualified testimonial privilege regarding surveillance positions as the protection given to police informants.
The question in each case, then, becomes whether fairness requires that the government's privilege yield to the defense right of cross-examination. Given the circumstances, the trial court must balance the public interest in legitimate criminal surveillance against the defendant's right to *22 cross-examine government witnesses and exercise its sound discretion whether to permit withholding of the information. Cf. United States v. Anderson, 509 F.2d 724, 729 (9th Cir.) (trial court's determination whether to require disclosure of identity of government informant at probable cause hearing is "a matter of discretion"), cert. denied, 420 U.S. 910, 95 S. Ct. 831, 42 L. Ed. 2d 840 (1975).[2]
A threshold consideration in making this determination is whether the issue before the court is probable cause for an arrest and search, see McCray, supra, 386 U.S. at 305, 87 S. Ct. at 1059, or the ultimate guilt or innocence of the defendant. See Roviaro, supra 353 U.S. at 64-65, 77 S. Ct. at 629-630, note 2 supra. When the question is probable cause, the court should consider, among other pertinent concerns, whether the defense has established that the location of the surveillance post is a material and relevant issue;[3] whether the evidence supports a finding of probable cause;[4] and whether the evidence creates a substantial *23 doubt about the credibility of the observer.[5] We turn to the facts of this case.
III.
In the present case, we perceive no abuse of discretion in the trial court's refusal to permit defense counsel to elicit on cross-examination of Detective Swope the location of his point of surveillance.
The question at the suppression hearing was whether the police had probable cause to arrest and search appellant. Defense counsel established that the location of the surveillance post was material to this issue by eliciting testimony suggesting that Detective Swope may have had an obstructed view of half the narcotics transaction.
The trial court found Detective Swope's testimony altogether credible. His testimony on cross-examination established that there was at least one building in the immediate area, and perhaps others, that were tall enough to provide a clear view of the transactions at issue. The detective's candid testimony about the obstruction of his view between the time appellant handed over money and the time soon thereafter when he received the white object did not detract from the sufficiency or credibility of his testimony for probable cause purposes.
Appellant's counsel had ample opportunity to question Detective Swope about the details of the drug buy, with the exception of the exact location of the surveillance post. Because the government was relying on first-hand police observation of all transactions suggesting probable cause, not on hearsay from an informant, defense counsel was in a position to make more effective use of cross examination than is common in the informant cases. Defense counsel nonetheless failed to elicit any irreconcilable inconsistencies in the detective's testimony or any independent reason to discredit him.[6]
Because the evidence supports the trial court's finding of probable cause and defense counsel failed to raise any substantial doubt about Detective Swope's truthfulness, the trial court properly limited cross-examination about the location of the surveillance post. The judgment of conviction is accordingly
Affirmed.
NOTES
[1] Cf. United States v. Crumley, 565 F.2d 945, 950-51 (5th Cir.1978) (government witness need not reveal secret location of "track sheet," computer printout of identification numbers of vehicle parts, when defense fails to show materiality); Gurleski v. United States, 405 F.2d 253, 266 (5th Cir.1968) (same; location of secret identification marks on automobile), cert. denied, 395 U.S. 981, 89 S. Ct. 2140, 23 L. Ed. 2d 769 (1969).
[2] The Supreme Court announced such a balancing test in Roviaro, supra 353 U.S. at 62, 77 S. Ct. at 628 in holding that the government must disclose to the defense at trial the identity of a particular informer who was the only witness (other than the defendant) in a position to refute the government's case. See id. at 64-65, 77 S. Ct. at 629-630.
Ten years later in McCray, supra, the Supreme Court sustained the trial court's refusal to order disclosure of a police informant at a probable cause hearing. See id. 386 U.S. at 305, 87 S. Ct. at 1059. The Court distinguished Roviaro, supra:
When the issue is not guilt or innocence, but as here, the question of probable cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant's identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. [McCray, supra at 305, 87 S. Ct. at 1059 (footnote omitted)].
The Court found no basis in the Due Process Clause of the Fourteenth Amendment or in the Sixth Amendment right of confrontation to strike down the Illinois rule. See id. at 313-14, 87 S. Ct. at 1063-1064.
In exercising discretion whether to permit cross-examination about the witness' concealed location, the trial court is not limited to the testimony in open court. For example, one way for the court to protect the government's privilege, while assuring itself that the police observer didor did nothave an unobstructed view, would be to conduct an in camera proceeding at which the government informs the court of the secret location. Cf. Alderman v. United States, 394 U.S. 165, 182 n.14, 89 S. Ct. 961, 971 n.14, 22 L. Ed. 2d 176 (1969) (acknowledges use of in camera inquiry in informant context); United States v. Freund, 525 F.2d 873, 877-78 (5th Cir.) (remand for in camera hearing regarding need to disclose identity of informant to determine permissibility of border stop), cert. denied, 426 U.S. 923, 96 S. Ct. 2631, 49 L. Ed. 2d 377 (1976); Anderson, supra at 730 (trial court did not abuse discretion in holding in camera hearing regarding basis of informant's knowledge in order to determine probable cause for arrest); United States v. Hurse, 453 F.2d 128, 131 (8th Cir.1972) (remand for in camera disclosure of identity of informant in order to determine probable cause for entry of home and arrest), cert. denied, 414 U.S. 908, 94 S. Ct. 1245, 38 L. Ed. 2d 146 (1973).
The court however, need not hold such an inquiry sua sponte. Cf. United States v. Alexander, 559 F.2d 1339, 1344 (5th Cir.1977) (trial court is not required sua sponte to order in camera hearing to determine whether informant's identity need be discussed), cert. denied, 434 U.S. 1078, 98 S. Ct. 1271, 55 L. Ed. 2d 785 (1978).
[3] Cf. Crumley, supra at 950-51 (government witness need not disclose location of "track sheets" at trial when defense fails to establish materiality); Alvarez v. United States, 525 F.2d 980, 982 & n.6 (5th Cir.) (same; identity of informant), cert. denied, 425 U.S. 995, 96 S. Ct. 2209, 48 L. Ed. 2d 820 (1976); Gurleski, supra at 266 (same; location of identification marks).
[4] Compare McCray, supra, 386 U.S. at 313, 87 S. Ct. at 1063 (when arresting officers testified under oath, in open court, subject to cross-examination regarding informer's statements and reliability, and trial court was satisfied with their veracity, court properly exercised its discretion to respect informer's privilege) and United States v. Santarpio, 560 F.2d 448, 453 (1st Cir.) (when trial court had no reason based on agent's testimony or affidavits to question reliability of informants, in camera identification of informants not necessary), cert. denied, 434 U.S. 984, 98 S. Ct. 609, 54 L. Ed. 2d 478 (1977) with Freund, supra at 877-78 (remand for in camera hearing regarding possible conflict between informant-witness' recollection and arresting officer's testimony and need for disclosure of identity to determine permissibility of border stop) and Hurse, supra at 131 (remand for in camera disclosure of identity of informant in order to determine probable cause for entry of home and arrest based on untested tip).
[5] See note 4 supra.
[6] Defense counsel did not request that the court pursue his concern through in camera inquiry. See note 2 supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386194/ | 885 S.W.2d 427 (1991)
Wesley HARRELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 12-89-00035-CR.
Court of Appeals of Texas, Tyler.
May 17, 1991.
Discretionary Review Overruled June 13, 1991.
*428 Odis R. Hill, Longview, for appellant.
C. Patrice Savage, Longview, for appellee.
BILL BASS, Justice.
Wesley Harrell was convicted of engaging in organized criminal activity. A jury assessed his punishment at fifteen years confinement. We reverse and remand for a new trial.
Harrell was indicted with thirty-two others, the indictment alleging that Harrell participated *429 in a conspiracy to deliver cocaine. The indictment grew out of an extensive investigation of cocaine trafficking in Gregg County. The investigation focused on the activities of John and Judy Lindley, who were among the thirty-two people indicted. The investigating authorities kept the Lindleys' apartment under surveillance and tapped the apartment telephone. The police searched the Lindleys' apartment pursuant to a warrant recovering three pounds of cocaine, drug paraphernalia and weapons. The officers also searched a car leased by the Lindleys, but not described in the warrant. The search of the Lindley automobile produced notebooks detailing numerous drug transactions. During a search of a separate town house at which the Lindleys had been observed, the officers seized another ledger detailing cocaine transactions.
Appellant, by his first three points of error, contends that the evidence is insufficient to support his conviction.
Appellant was charged with violating Tex.Penal Code § 71.02(a)(5), which reads as follows:
(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the following:
. . . .
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug....
The pertinent definitions are contained in Tex.Penal Code § 71.01,[1] which at the time the indictment was returned, read as follows:
(a) A "combination" means five or more persons who collaborate in carrying on criminal activities, although:
(1) participants may not know each other's identity;
(2) membership in the combination may change from time to time; and
(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.
The indictment of appellant alleged that on or about September 3, 1986, and continuing until on or about September 12, 1986, appellant and thirty-two others did then and there with the intent to establish, maintain and participate in a combination and in the profits of a combination, knowingly and intentionally conspire to commit the offense of unlawful delivery of cocaine and agreed among themselves and with each other to engage in this offense and in pursuance of such agreement and in furtherance of it the said defendants performed overt acts.
The overt acts alleged against appellant are as follows:
(20) communicated with John Lindley by telephone on or about September 5th, 1986;
(21) communicated with John Lindley by telephone on or about September 11th, 1986;
(22) made a payment to John Lindley for cocaine on or about September 10th, 1986.
The standard of review for both direct and circumstantial evidence is whether any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. In making this determination, the reviewing court must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Marroquin v. State, 746 S.W.2d 747 (Tex.Cr. App.1988).
Appellant concedes that, viewed in the light most favorable to the State, the evidence shows a combination of five or more persons collaborating to deliver cocaine. However, appellant contends that the evidence is insufficient to permit the inference *430 that he knew that the purpose of the combination was the delivery of cocaine, as opposed to its mere use or possession. In appellant's view, the evidence does not permit the inference that he knew five people in the combination were using cocaine, let alone delivering it. He argues that there is insufficient proof that he conspired to commit the delivery of cocaine, with the specific intent of participating in a criminal group of at least five persons. Citing Barber v. State, 764 S.W.2d 232, 236 (Tex.Cr.App.1988).
To establish defendant's guilt "of the offense of organized criminal activity, an actor must commit or conspire to commit one or more of the enumerated crimes, with the specific intent of participating in a criminal group of at least five persons." Id. at 235. The State must prove that it was the accused's intent to participate in a combination of more than four persons, and that he or she also possessed the intent to participate in the profits of the combination. Richardson v. State, 763 S.W.2d 594, 596 (Tex.App.Corpus Christi 1988, no pet.). Thus, in order to prove intent, the State must show that the accused knew of the criminal activity of the group. Id.; Nickerson v. State, 686 S.W.2d 294, 297 (Tex.App.Houston [14th Dist.] 1985, pet. ref'd). Direct evidence is rarely available to prove a conspiracy necessarily hatched in secrecy. Almost inevitably, circumstantial evidence, including the conspirator's conduct, must be relied upon to prove the essential elements of the crime. Farrington v. State, 489 S.W.2d 607 (Tex.Cr. App.1972). Similar methods of operation, together with joint activities and relationships, support the finding of a single conspiracy. United States v. Ochoa, 609 F.2d 198 (5th Cir.1980); Kennard v. State, 649 S.W.2d 752, 764 (Tex.App.Fort Worth 1983, pet. ref'd).
The appellant concedes that, viewed in the light most favorable to the State, the evidence shows that John and Judy Lindley were the hub of an extensive cocaine distribution system in Longview. They served as suppliers of cocaine to a network of smaller dealers including the appellant. Often the cocaine was advanced or "fronted" to the retail dealer on credit, and when the cocaine was resold, the Lindleys received payment within a matter of hours. The detailed business records of the enterprise, the surveillance, and wiretaps demonstrate that far more than five persons were included within the combination. At least several of the confederates were on familiar terms and shared their plans and mutual concerns, not only with the Lindleys, but with one another.
There is direct evidence that appellant had some contact with at least three members of the combination other than the Lindleys. Mike Gibbons answered the telephone twice when appellant called the Lindleys. In the first call appellant identified himself by his nickname of Junior; in the second call he told Gibbons "this is Wes." Gibbons and appellant were not strangers to one another. Surveillance reports and wiretap evidence showed that appellant was at the Lindley apartment on more than one occasion while John LaRoux, another of the confederates, was also there. On one of these occasions, appellant and LaRoux carried on a brief conversation on the sidewalk just outside the Lindley apartment. When LaRoux left, appellant walked back to the parking lot and spoke to someone who had just pulled up in a Lincoln Continental. The driver handed appellant something small enough to be concealed in the hand. Appellant then entered the Lindley apartment. Shortly thereafter, appellant answered the door to the Lindley apartment when Billy Mabry, another member of the combination arrived with his wife.
Judy Lindley ordinarily devoted a separate section of her records to each of the dealer's drug transactions and labeled it with the dealer's name. No section bore appellant's name. However, one of the entries in an unlabelled section recorded a transaction that occurred during a time when surveillance showed that, other than the Lindleys, appellant was the only person in the Lindley apartment who did not have a named section in the records. State's exhibit 41 is a summary, in Judy Lindley's handwriting, of the amounts the various dealers owed the Lindleys. "Wes" is shown as owing $800, but an attempt was made to scratch out the name and amount. The amount due to from "Wes" corresponds to the $800 balance due in the unnamed section. The wife of one of the *431 conspirators testified that Judy Lindley told her that appellant had objected to his name appearing in the records.
A scratched out entry in a separate note in John Lindley's handwriting dated September 11 at 3:00 p.m. shows that "Jr." (appellant's nickname) was to be fronted (advanced on credit) eight ounces of cocaine for $9,600. Another John Lindley note records an $800 cash transaction with "Jr." at 6:15, September 11. Surveillance confirmed that appellant was with the Lindleys at both of the times shown on the notes.
There is strong circumstantial evidence that the unmarked section of the Lindley drug records belonged to appellant. That section recorded total purchases of 1484 grams of cocaine for $74,200 during the 114-day period ending September 10, 1986. Like the other dealers, appellant was advanced much of the cocaine on credit.
Considering all of the evidence, we conclude that there is sufficient proof to support the jury's implied findings that appellant had the specific intent to participate in a criminal combination of at least five persons, and that appellant knew its purpose was the sale of cocaine. Upon the evidence in the record, a rational trier of fact could find all of the elements of the offense beyond a reasonable doubt. Appellant's first three points of error are overruled.
In his fourth point of error, appellant maintains that the trial court erred in admitting into evidence the notebook seized in the search of the Lindley car. The notebook contains what the State insists is a record of appellant's cocaine purchases from the Lindleys, beginning May 19, 1986, and ending September 10, 1986. Only one of the entries recorded a cocaine purchase during the period of the conspiracy alleged in the indictment. The appellant argues that the numerous other cocaine purchases by appellant recorded during the 114-day period before September 10, 1986, are extraneous offenses. He challenges their admission on three grounds:
(a) The acts of uncharged misconduct were not relevant to any issue other than Appellant's character and propensity to commit such acts;
(b) The probative value of the acts of uncharged misconduct was substantially outweighed by unfair prejudice to Appellant; and
(c) The State failed to clearly prove commission of those acts of uncharged misconduct by Appellant.
We disagree with appellant's characterization of the cocaine sales recorded in State's exhibit 68 before September 3, 1986, as extraneous offenses. The indictment alleges that the appellant and the other members were engaged in a criminal combination conspiring to sell and selling cocaine from September 3, 1986, until September 12, 1986. The notebook records a continuous series of drug transactions during the 114-day period culminating in their arrest on September 12, 1986. The notebook shows in surprisingly meticulous detail that the membership and purpose of the criminal combination and the extent and regularity of its members' dealings were the same before and after September 3, 1986. The Lindley records document the existence of the same combination three months before the dates alleged in the indictment. The only thing that changed on September 3, 1986, was that on or about that date the police instituted round-the-clock surveillance of the Lindley apartment, the hub of the criminal enterprise.
The essence or gravamen of conspiracy offenses, that is that which is punishable, is the unlawful agreement or combination, not the overt acts required to complete the offense. 15A C.J.S.2d Conspiracy § 36 (1967). A conspiracy is inherently a continuing offense. Once formed, a conspiracy continues until it is consummated, abandoned, or otherwise terminated by some affirmative act. See Robins v. State, 134 Tex. Crim. 617, 117 S.W.2d 82 (1938); Burnett v. State, 754 S.W.2d 437 (Tex.App.San Antonio 1988, pet. ref'd). The appellant was not charged with separate possessions or deliveries of drugs to which any other offenses shown in the Lindley's records would be extraneous. He was accused of participating in a criminal combination conspiring to sell cocaine. Although the challenged sales recorded in exhibit *432 68 each constitute an offense, each one of them is an overt act in furtherance of the same conspiracy alleged in the indictment. They are not extraneous to the conspiracy, they are a part of it. The fourth point of error is overruled.
In appellant's fifth point of error, he challenges the trial court's admission of State's exhibit no. 76 into evidence. State's exhibit no. 76 contained numerous acts of prior uncharged misconduct. This exhibit is another Lindley ledger apparently recording marihuana and cocaine sales between "2/16" and "3/28" of an unspecified year. Exhibit 76 apparently documents drug transactions with several people including "Wes" or "Wesley" who is shown to have made four four-ounce purchases during March for $27,100. The first names of some of the buyers listed in exhibit 76 are the same as some of those indicted as members of criminal combination. Most are not.
The ledger was discovered during a consensual search of the Lindleys' town house. Unlike State's exhibit 68 and the other Lindley drug records, the activity recorded in State's exhibit 76 was not corroborated by surveillance or wiretap. There is no evidence of the year in which the sales occurred, or that they were connected with the conspiracy alleged in the indictment or in furtherance of it. However, in closing argument, the State referred to exhibit 76, telling the jury "Your going to find the name Wesley throughout it dealing in cocaine."
Unlike State's exhibit 68, the sales recorded in State's exhibit 76 are offenses extraneous to the crime with which appellant is charged. The general rule in all English speaking jurisdictions is that evidence of extraneous offenses is not admissible, because the "accused is entitled to be tried on the accusation made in the State's pleading and not on some collateral crime, or for being a criminal generally." Young v. State, 159 Tex. Crim. 164, 261 S.W.2d 836, 837 (1953).
In the instant case, the court's charge limited the jury's consideration of appellant's other offenses to the issue of intent. A long recognized exception to the general rule permits the admission of evidence of extraneous offenses as circumstantial proof of intent, where intent is an essential element of the State's case. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). However, the admissibility of extraneous offenses requires an analysis of the facts and circumstances of each case in the light of the test set forth in Williams v. State, 662 S.W.2d 344, 346 (Tex. Cr.App.1983). Crank v. State, 761 S.W.2d 328 (Tex.Cr.App.1988), cert. denied, 493 U.S. 874, 110 S. Ct. 209, 107 L. Ed. 2d 162 (1989). Under Williams v. State, extraneous offenses committed by the accused are admissible only upon a showing that (1) the offense is relevant to the proof of a contested material issue in the case, and (2) its relevancy outweighs its inflammatory or prejudicial potential. Williams v. State, 662 S.W.2d at 346. Further, even though evidence of another crime may be admissible under the Williams test, the evidence should not be admitted unless the commission of the extraneous offense is clearly proved and the accused is shown to be the perpetrator. Turner v. State, 754 S.W.2d 668, 673 (Tex.Cr.App.1988).
Similarity and remoteness together with the purpose of the offer are the most important factors to be considered in weighing the probative value of the extraneous offense against its unfairly prejudicial potential. Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985). In this case, the extraneous and the charged offense are cocaine sales. Insufficient similarity is not the problem. However, from this record we can only surmise the year or even the place in which the sales were made. The ledger documents drug purchases by a generally different group. It is impossible to determine just how remote the extraneous offenses are from the crime with which appellant is charged.
In our view there has been no satisfactory showing that appellant was the same person who committed the extraneous offenses recorded in exhibit 76. There was no confirming surveillance or wiretap evidence to tie the appellant to the contents of State's exhibit 76 as there was with the exhibit 68. There was testimony that the section of exhibit 68 recording appellant's purchases during the conspiracy did not have his name on it because he had objected to having his name on the *433 records. Yet the only thing that ties appellant to the ledger recording $27,100 worth of extraneous offenses is the name "Wesley." Is the name Wesley so rare as to negate the reasonable possibility that more than one Wesley was fronted cocaine during the time they were in business? That proposition is made even more dubious under the facts of this case since we cannot tell the year or place of the extraneous drug transactions. While the evidence creates a strong suspicion that appellant was the "Wesley" who was the perpetrator of the extraneous offenses, we conclude that the evidence falls short of a clear showing that he was the perpetrator. The danger of unfair prejudice is too great to allow the admission of such potentially unfair prejudicial evidence without such a clear showing. The court erred in admitting the ledger (exhibit 76). Appellant's fifth point is sustained.
The evidence of appellant's guilt was circumstantial, and although sufficient, less than overwhelming. It consists chiefly of "fronted" cocaine purchases recorded by Judy Lindley in an unlabeled section of State's exhibit 68, the drug records of the combination. However in closing argument the prosecutor referred to exhibit 76 containing the improperly admitted extraneous offenses and told the jury, "You're going to find the name Wesley throughout it dealing in cocaine."
Appellant was thirty-five years old at the time of trial and had been steadily employed since he left college. He had never been convicted of a criminal offense, and was eligible for probation. The range of punishment was confinement for from five to ninety-nine years. Appellant's punishment was assessed by the jury at fifteen years. We are unable to conclude beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
The judgment is reversed and the cause remanded for a new trial.
NOTES
[1] Acts, 65th Leg., ch. 346, § 1, 1977 Tex.Gen. & Spec.Laws 922, amended by Acts, 71st Leg. ch. 782, § 1, Tex.Gen. & Spec.Laws 3468. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386259/ | 782 A.2d 1187 (2001)
STATE of Vermont
v.
Robert L. WHITE.
No. 00-211.
Supreme Court of Vermont.
August 31, 2001.
*1189 William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.
Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
SKOGLUND, J.
Defendant Robert White appeals his conviction for second degree murder following a jury trial in Rutland District Court, and the subsequent imposition of a sentence of life in prison without parole. Defendant claims that the conviction and sentence should be vacated, and the case remanded for a new trial, on the grounds that (1) the evidence presented does not support a finding of defendant's guilt beyond a reasonable doubt; (2) the failure of the police to photograph and preserve certain evidence required either dismissal of the charge against him or suppression of the evidence in question; (3) the court erred in allowing testimony regarding defendant's marital difficulties and his earlier discharge from employment at the business where the murder took place; and (4) the trial court's imposition of the sentence of life without parole, based upon aggravating circumstances, was unjustified and therefore error. We perceive no error in regard to defendant's arguments, so we affirm the conviction and sentence.
On April 18, 1998, shortly before 11:00 p.m., Jane Desmarais arrived at the Econo Lodge Motel in Rutland to begin her overnight shift as the front desk clerk. Around 1:00 a.m., a couple checked into the motel, where they observed Desmarais speaking with a man in the motel lobby. The man addressed the couple, acting as if he was participating in the check-in process. Defendant had been employed as a night clerk at the motel the previous fall and was familiar with the nighttime checkin procedures and where cash was kept on the premises.
At 2:15 a.m., a long-distance telephone call was made to the front desk of the motel by a person trying to get in touch with one of the motel's customers. When no one answered, the person tried again four or five times within the following half-hour, but was unable to reach anyone at the front desk. At 6:00 a.m., Desmarais' mother telephoned the motel, and when no one answered, went to the motel to check on her daughter. When she arrived, the entrance was locked, but inside all the lights and the television were on. After no one responded to her knocking on the door and a window, she contacted the owner of the motel, Patrick Abatiell, Sr. Abatiell then drove to the motel, unlocked the door, and entered with Desmarais' mother. They discovered Desmarais deceased, her *1190 body lying on the floor of the lobby in a location not visible from the front door. Blood spots on the floor and the arrangement of the victim's clothes suggested that the body had been moved to that spot from a more visible location. The body had been disfigured by the application of chemical solvents, including paint remover and commercial drain opener, and appeared to have been burned as well. An autopsy indicated that the cause of death had been asphyxia due to strangulation. There was over $400 in cash missing from the motel office area.
While processing the crime scene, the police took into evidence two advertising flyers, one 8½ by 11 inches in size, and the other 8½ by 5½ inches. The larger flyer had reddish-brown stains on the back, unprinted side that appeared to be consistent with blood and that resembled a palm print. The smaller flyer had on it what appeared to be a fingerprint made in blood. The flyers were submitted to the state police forensic laboratory for identification of the reddish-brown stains as well as to make an identification of the prints. In the course of processing the larger flyer to identify the palm print, the document was sprayed with ninhydrin, a chemical used to reveal more of the full hand print on the flyer. The ninhydrin treatment revealed latent fingerprints as well. After determining that the reddish-brown substance was indeed blood, a portion of the palm print was cut out by the crime lab in order to preserve it for any future testing which might be necessary. The palm print and fingerprint impressions on both flyers were subsequently identified as matching those of the defendant, and a sample of blood taken from the palm print was identified as that of the victim.
Prior to trial, defendant moved the court to exclude the evidence obtained from the larger flyer, or to dismiss the charges, arguing the physical evidence had been destroyed by the forensic laboratory's cutting of the flyer and chemical treatment. During the trial, defendant filed a motion to exclude the testimony of Patrick Abatiell, Jr., manager of the Econo Lodge, regarding the circumstances surrounding defendant's termination from the motel. Defendant also objected during trial to the introduction of testimony regarding the marital difficulties he was experiencing at the time of the murder. The court denied the motions and the objection, and at the conclusion of the trial the jury entered a verdict of guilty. On April 27, 2000, after the sentencing hearing, the court issued its findings and sentence.
Defendant first argues that the evidence presented was insufficient, as a matter of law, to support a finding of guilt beyond a reasonable doubt. During the trial, defendant moved the court once to dismiss for lack of a prima facie case, twice at the conclusion of the prosecution's and the defense's case for acquittal, and once for acquittal notwithstanding the guilty verdict. All of these motions were denied.
We review all of these motions under the same standard we must determine "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995) (internal quotations and citations omitted); see also V.R.Cr.P. 12(d) (motion to dismiss), 29 (motion for judgment of acquittal). The evidence presented must be considered together, not separately, State v. Grega, 168 Vt. 363, 380, 721 A.2d 445, 457 (1998), and thus even if each piece of circumstantial evidence presented may be explained in some way that does not link the *1191 defendant to the murder, this does not mean that an acquittal must be entered. A judgment of acquittal is proper "only if the prosecution has failed to put forth any evidence to substantiate a jury verdict." State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999). Under this standard, we conclude that the court's denial of the motions was proper.
Defendant claims that there is no direct evidence that he killed the victim, and that the circumstantial evidence presented does no more than create a suspicion or conjecture that defendant murdered the victim. See State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) (evidence presented must add up to more than mere speculation) (citing State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991)); cf. State v. Miller, 146 Vt. 164, 169, 502 A.2d 832, 835 (1985) ("Circumstantial evidence will sustain a conviction if it is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."). We disagree. The State presented circumstantial evidence that included physical evidence of defendant's palm print, made in the victim's own blood by transferring the blood upon contact from his hand to the flyer before the blood dried, therefore linking the defendant to the crime scene at or near the time of the murder; evidence of the opportunity provided by his advance knowledge of the nighttime routine and operation of the motel; evidence that the defendant had recanted his original story to the police regarding his whereabouts on the night of the murder; and testimony as to defendant's expressing possible inside knowledge of the crime to an off-duty police officer. This evidence, in conjunction with the rest of the evidence presented by the State, was sufficient to allow a reasonable trier of fact to conclude beyond a reasonable doubt, and not merely suspect, that defendant was guilty of Desmarais' murder.
Defendant next argues that the State failed to properly preserve the evidence used against him when they cut out a piece of the advertising flyer with a bloody palm print for testing.[1] He claims that the investigating officers were negligent in failing to photograph the fliers, and that the question of whether the blood got on the paper via a bloody hand, or if a clean hand was placed on already-bloodied paper, has been "forever eliminated" by the absence of a photograph of the untreated and uncut flyer. Defendant asserts that this "missing" exculpatory evidence warranted dismissal of the charges against him, based upon our decision in State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (1984) (adopting three-prong test from United States v. Bryant, 439 F.2d 642, 653 (D.C.Cir.1971), to be applied in determining whether to dismiss indictment because of State's failure to preserve evidence).
Defendant presented the trial court with several theories as to the exculpatory value of the evidence at issue. He argued that without a photograph of the flyer, taken before the application of the ninhydrin and the removal of a portion for blood analysis, it was impossible to prove or disprove the existence of marks, stains, or other information on the flier, the time the blood was deposited on the flier relative to the death of the victim, or whether the *1192 palm print was fabricated or planted on the crime scene. However, defendant did not argue before the trial court the one argument he presents to this Court that the lack of a direct, pre-ninhydrin application, pre-cutting photograph of the flier could have indicated whether the print was made by a bloodied palm pressing on the flier, or whether the blood was already on the flier when the palm touched it. At trial, the State presented two experts who testified that their examination of the flier indicated that the blood was transferred to the flier by the hand making the print. The defense cross-examined the witnesses, but did not challenge their conclusion on the transfer of the blood to the paper. By failing to raise this claim before the trial court, defendant failed to preserve this issue for our review on appeal. Nor does defendant claim plain error in the court's denial of his motion. Therefore, we decline to address this issue on appeal. See State v. Devine, 168 Vt. 566, 568-69, 719 A.2d 861, 864 (1998) (declining to address claim which was not raised before the trial court).
Defendant next challenges the admission of testimonial evidence regarding his marital difficulties and the circumstances surrounding the termination of his employment at the motel. He argues that the former testimony had no relevance to any of the issues before the court, and that, in the case of both, the prejudicial effect outweighed their probative value. The determination as to whether evidence one party seeks to admit is relevant is committed to the "sound discretion of the trial court," and we will not disturb its decision absent a showing of an abuse of discretion. State v. Streich, 163 Vt. 331, 351, 658 A.2d 38, 52 (1995). To support a claim of abuse of discretion, the complaining party has the burden to show that the trial court withheld its discretion or exercised its discretion upon grounds clearly untenable or unreasonable. State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988). We apply the same abuse of discretion standard of review in claims that the trial court erred in its determination of whether the prejudicial effect of the evidence at issue substantially outweighed its probative value. State v. Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996). "This Court will not interfere with discretionary rulings of the trial court that have a reasonable basis, even if another court might have reached a different conclusion," nor will we interfere with the judgment of the trial court simply because a different court might have reached a different conclusion. Parker, 149 Vt. at 401, 545 A.2d at 517 (internal quotations and citations omitted).
The evidence of marital difficulties consisted of testimony by a witness who was defendant's co-worker at the time of the murder, and who, eight days after the murder, was told by defendant that he was getting a divorce. At trial, this testimony was solicited from the witness just after he had testified that, around the time of the murder, defendant had offered to work any of the witness' shifts for him because defendant "needed the money." Upon defendant's objection to the testimony concerning his pending divorce, the prosecution stated that the evidence was being offered to show the state of mind of the defendant at the time of the murder. Defendant claimed at trial, and now before this Court, that the evidence was offered to show a financial motive for the crime based upon "building an inference upon an inference."
The State argued that the evidence was relevant to show defendant's "situation is such that he may want to stop off someplace overnight rather than going home." The trial court accepted this reasoning and held the evidence admissible to show defendant's *1193 state of mind. Since the jury knew that defendant was married, it was appropriate to provide them with additional information concerning the state of the marriage, so that defendant's activities that night would make more sense, and thus be "more probable ... than it would be without the evidence." See V.R.E. 401 (definition of relevant evidence). We find no error in the trial court's decision to admit this testimony.[2]
The second piece of testimonial evidence challenged on appeal is the testimony of Patrick Abatiell, Jr. regarding the circumstances surrounding the termination of defendant's employment at the motel. This testimony was preceded by a limiting instruction to the jury that the evidence was being offered to show motive, and should not be used to draw a negative inference about defendant's character. Abatiell testified that on the last Sunday morning of October 1997, he commented to defendant about his appearance at work. When Abatiell arrived at the motel that morning, defendant was on a couch with his feet crossed, hands in his lap, and his chin down into his chest, and wearing jeans and a baseball cap. After again finding defendant in this manner a short time later Abatiell asked: "Robert, what's the matter? You can't be like this. I mean, we need to present a good image. This doesn't look good for customers." Defendant then stood up and said: "I can't take this anymore. I don't want to put up with this crap," at which point defendant collected some belongings and left the motel. Abatiell testified that he never saw defendant at the motel again.
In responding to defendant's motion to exclude this testimony, the prosecution offered that this evidence was being presented to provide a possible motive for the robbery or the murder, as the evidence displayed an "animus" defendant may have harbored toward the motel, its owners, or its employees. The trial court accepted this reasoning and admitted the evidence. We disagree with defendant that the evidence was presented with the purpose of making an improper inference that the crime was a result of "former employee rage" and that the impact of this testimony on the jury could do nothing more than "enflame [sic] and appeal to passion." We perceive no abuse of discretion, on the grounds of relevance or excessive prejudicial effect, in the trial court's admission of this testimony.
Defendant's final argument is that the trial court erred in concluding that the sentence of life without parole was justified under the circumstances of the case. When we review the sentence imposed by a court, "[a]bsent a showing that the trial court failed to exercise discretion at all, or exercised it for purposes which are clearly untenable, or to a degree which is unreasonable, we will uphold the court's decision." State v. Turner, 150 Vt. 72, 75, 550 A.2d 5, 7 (1988). When an individual is convicted of second degree murder, the trial court must consider the aggravating and mitigating factors specifically enumerated in the sentencing statute or as suggested by the parties. See 13 V.S.A. § 2303(d)(1)-(8), (e)(1)-(7). The trial court retains discretion to apply or reject the factors, as well as to interpret the meaning of individual factors. State v. Corliss, 168 Vt. 333, 341, 721 A.2d 438, 444 (1998). The trial court's determination of aggravating and mitigating factors will be upheld on *1194 appeal if such determination is supported by credible evidence, even where there may be substantial evidence in the record to the contrary. Id. If the trial court finds that the aggravating factors outweigh any mitigating factors, the court has discretion to set the minimum term of incarceration as high as life without parole. 13 V.S.A. § 2303(b).
The court evaluated the aggravating and mitigating factors contained in 13 V.S.A. § 2303(d), and concluded that several of the aggravating factors were present in this case. First, it found that the murder was committed while the defendant was engaged in the commission of, or attempted commission of, a felony in this case, assault and robbery. See 13 V.S.A. § 608. The court noted that several hundred dollars had been taken from the Econo Lodge during the shift the victim had been working, and that "it is reasonable to infer that there was a taking of money, or an attempted taking of money, from [the victim] or in her presence" constituting an assault and robbery.
Second, the court found that the victim was particularly vulnerable in that she was working alone at night a fact known to defendant as a result of his prior employment at Econo Lodge. Additionally, because the victim knew defendant it was less likely she would call the police when he arrived at the motel; instead, she would have let him in. As a result, any fear or apprehension the victim "was sure to have experienced would have occurred too late for her to have called for assistance or taken steps to protect herself."
Third, the court found that the murder was particularly severe, brutal, or cruel, noting the extent of the injuries to the victim both as a result of the strangulation and from the subsequent mutilation of the body by acid and other chemicals and the attempt to burn the body. Fourth, the court found that the murder was random, predatory, or arbitrary in nature. In support of this conclusion, the court relied upon a definition of predatory which portrayed such activities as "marked by a tendency to victimize or destroy others for one's own benefit."
The final factor recognized by the court, in accordance with 13 V.S.A. § 2303(d)(8), is the State's proposition that "[d]efendant is aware of his strength and is willing to use it against women, regardless of the circumstances." To support this proposition, the court referred to evidence presented by the State that defendant had previously pushed his mother-in-law against a wall and choked her, and that he had choked another woman while engaging in sexual intercourse with her.
The defense neither argued for, nor presented evidence of, any mitigating factors which it is authorized to do under 13 V.S.A. § 2303(c), (e). The court itself recognized only one the lack of a significant prior criminal history. The court found that defendant's prior criminal history consisted of a conviction for driving under the influence. Even though the court recognized defendant's lack of a significant prior criminal history as a mitigating factor, it concluded that its value as such was lessened by the fact that defendant had consumed alcohol just prior to the murder.
The court concluded that, based on its review of aggravating and mitigating factors, the aggravating significantly outweighed the mitigating and warranted consideration of imposition of a sentence greater than the statutory minimum of twenty years imprisonment. The court found that there was no prospect for rehabilitating the defendant, and absent rehabilitation defendant posed both a serious threat to public safety and a very high risk to reoffend. The court further noted that defendant "utterly and completely" denied *1195 any responsibility for the death, showed no remorse, and cared only about himself; "[h]e is an extreme danger to the public." The court imposed a sentence of life imprisonment without parole.
In the trial court's sentencing memorandum, all of the statutory aggravating and mitigating factors were examined by the court. See 13 V.S.A. § 2303(c), (d). Review of the sentencing memorandum shows that all the factors which were ultimately relied upon by the court in its sentencing decision were supported by credible evidence. While we recognize that a punishment must be proportional to the offense charged and convicted, a conviction of life imprisonment is not out of proportion to murder. State v. Bacon, 167 Vt. 88, 97, 702 A.2d 116, 122 (1997) (in felony murder case, "[g]iven the seriousness of the offense for which defendant was convicted, no sentence of imprisonment could be disproportionate") (citing Solem v. Helm, 463 U.S. 277, 290 n. 15, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)). We perceive no error in the trial court's sentencing of defendant to life without parole for the commission of this murder.
Affirmed.
NOTES
[1] Defendant also raises on appeal the claim that the evidence should have been suppressed, or the conviction reversed, because the ninhydrin treatment applied to the cut-out piece of the larger flyer rendered further DNA testing of that piece impossible. However, at trial defendant's counsel stated that after further consultation with experts in the field, she understood this claim to be incorrect and explicitly retracted it. This claim is therefore waived for purposes of appeal.
[2] Defendant's brief also challenges the marital difficulties evidence as unfairly prejudicial, but he failed to raise this argument at trial the trial court only heard argument from defendant on the relevance of the evidence. Therefore, we do not address this argument on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386245/ | 782 A.2d 479 (2001)
344 N.J. Super. 453
Wilford WATTS, Plaintiff-Respondent,
v.
Brenda B. CAMALIGAN and Ibarrarue G. Camaligan, Defendants-Appellants.
Superior Court of New Jersey, Appellate Division.
Argued September 17, 2001.
Decided October 24, 2001.
*481 Francis X. Ryan, Cherry Hill, argued the cause for appellants (Green, Lundgren & Ryan, attorneys; Mr. Ryan and Matthew K. Mitchell, on the brief).
Patrick J. Mangan argued the cause for respondent (Rabb, Hamill & Stillman, attorneys; William E. Rabb, Woodbridge, on the brief).
Before Judges STERN, COLLESTER and LINTNER.
*480 The opinion of the court was delivered by LINTNER, J.A.D.
This interlocutory appeal requires us to decide, for the first time, whether a plaintiff's failure to provide defendant with a certification from a licenced treating physician or a board-certified licensed physician pursuant to N.J.S.A. 39:6A-8a mandates a dismissal with prejudice, absent a showing of good cause to permit an extension of up to sixty days. We hold that plaintiff's failure to comply with the physician certification requirement of the compulsory no-fault liability insurance provisions of N.J.S.A. 39:6A-8a, under the circumstances of this case, required a dismissal without prejudice and the motion judge's failure to enter such an order was error. However, we see no reason to interfere with the motion judge's refusal to enter an order of dismissal without prejudice because entry of such an order, at this stage of the litigation, would serve no legitimate purpose. We therefore remand for further proceedings.
Because they are interrelated, we combine the procedural history with the relevant facts. On March 17, 2000, plaintiff, Wilford Watts, filed a complaint against defendants, Brenda and Ibarrarue Camaligan, for injuries he allegedly suffered in a February 8, 2000, automobile accident occurring on Route 9 in Lakewood. Defendants filed their answer on April 19, 2000.
*482 On September 20, 2000, defendants filed a motion to dismiss for failure to provide a physician certification within sixty days of the filing of defendants' answer as required by N.J.S.A. 39:6A-8a. In response, plaintiff filed a certification dated October 6, 2000, signed by Dr. John L. Hochberg.
Dr. Hochberg's certification indicated that he was a "licensed treating physician or Board Certified licensed physician to whom the above-referenced plaintiff was referred." It also indicated that he had first examined plaintiff on July 18, 2000, and that his initial diagnosis was cervical and lumbar radiculopathy. The certification provided that plaintiff's injuries were confirmed by "objective clinical evidence," specifically an EMG evidencing a lumbar radiculopathy and an MRI noting disc bulges at multiple levels. The doctor's diagnosis at the time of certification was lumbar radiculopathy and stenosis.[1] Finally, the doctor checked off a portion of the certification stating that, in his opinion, plaintiff sustained "a permanent injury within a reasonable degree of medical probability other than scarring or disfigurement" as a result of the motor vehicle accident.
Argument on the motion was held on October 20, 2000. Although plaintiff conceded that the filing of the certification was 150 days late, the motion judge denied defendants' motion and refused to dismiss plaintiff's complaint. On October 27, 2000, plaintiff provided defendants with a three page written report by Dr. Hochberg, expounding further on the nature and extent of plaintiff's injuries and indicating that plaintiff was initially seen by him on July 18, 2000. We granted leave to appeal, R. 2:2-4, and on December 18, 2000, remanded the matter to the motion judge "for consideration of whether `good cause,' as required by N.J.S.A. 39:6A-8a for the late certification, was shown and whether, if not, a dismissal with prejudice would be the proper remedy."
On February 15, 2001, the motion judge, following argument on the motion, adjourned the matter thirty days to permit plaintiff's counsel to submit a certification detailing why he was late and "spell[ing] out exactly what took place." On February 23, plaintiff submitted a certification from William Rabb, Esq., indicating that plaintiff was first treated by Dr. Burt Frank, D.O., in Lakewood. According to Rabb, eleven days following the accident his office wrote Dr. Frank requesting "a medical report." Having received no response, counsel's office forwarded additional written requests to Dr. Frank on June 13, June 26, August 2, and October 23 asking that he forward a "narrative medical report." According to Rabb's certification, he eventually obtained "office records" from Dr. Franks for his treatment of plaintiff on November 2, 2000, which he immediately forwarded to defense counsel as formal amendments to interrogatories.[2]
Rabb's certification also asserted that plaintiff "presented" himself to Dr. Hochberg for treatment during the month of July 2000, and was referred by Dr. Hochberg for an MRI on September 13, 2000. Rabb disclosed that he wrote requesting a written "narrative medical report" from *483 Dr. Hochberg on September 15, 2000. On September 21, plaintiff served defendants with a copy of the MRI report disclosing plaintiff's multiple disc bulges as amended answers to interrogatories. Rabb further confirms that, for the first time, his office forwarded Dr. Hochberg's physician certification form for completion on September 27, 2000, two days after receiving defendants' motion to dismiss. According to Rabb, a second and third request was made for completion of the physician certification form on October 4 and October 6, 2000.
On March 16, 2001, the motion judge again refused to enter a dismissal of plaintiff's complaint, finding that there was no design to mislead because plaintiff's counsel had made "numerous efforts" to obtain a narrative report and physician certification, despite the fact that the certification was served out of time. In addition, the judge concluded:
Secondly, the underlying reason for the cause is one that I see on a regular basis. We have busy doctors who, despite repeated requests, simply do not respond. And, in addition, there doesn't appear to have been an awareness on the part of the attorney, at least there's no mention of it in the certification, that he realized that certification was due and that he was late and that the statute was being violated.
Three, the fault or blamelessness of the litigant, here we have a litigantthere's no allegation by anyone that the plaintiff was at fault in any way. It was his attorney.
Four, the prejudice that would accrue in my opinion is negligible. Even though the statute has to mean something and, as is pointed out by Mr. Ryan, I'm not sure how far we should go in relaxing requirements of this nature. But just as I felt in the initial motion made before me, I feel that here we have good cause. We have an attorney who made repeated requests to the physician and no response. And I don't believe it appropriate to penalize the plaintiff, cause other lawsuits. In the appropriate case, there would be lawsuits filed for malpractice. Whether or not this case involves that type of malfeasance, I can't say.
But I think the appropriate thing, under our case law and in the absence of any clear direction from the Appellate Division or any other authority, I find that here is good cause and that it is appropriate to allow the plaintiff to proceed with the action despite the late submission of the certification required.
Defendant contends that the motion judge erred in finding the existence of "good cause" and that plaintiff's complaint should have been dismissed with prejudice.
We begin our analysis with the pertinent provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -32, effective March 22, 1999. AICRA created two insurance coverage options: (1) a "basic policy and standard policy" which in part provides "for a revised lawsuit threshold for suits for pain and suffering which will eliminate suits for injuries which are not serious or permanent, including those for soft tissue injuries," N.J.S.A. 39:6A-1.1 and -8a; and (2) an "alternative" policy without threshold limitation, N.J.S.A. 39:6A-8b. A driver of a vehicle is not exempt from liability for non-economic damages sustained by a person covered with the alternative policy. By contrast, a person covered by a policy containing the "limitation on lawsuit option" exempts drivers from tort liability for non-economic injuries
unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement *484 or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.
[N.J.S.A. 39:6A-8a.]
A plaintiff with the limited threshold option is also required to produce a physician certification. N.J.S.A. 39:6A-8a provides in pertinent part:
In order to satisfy the tort option the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or board-certified licensed physician to whom the plaintiff was referred by the treating physician.
The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury described above.... The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause.
A person is guilty of a crime of the fourth degree if that person purposefully or knowingly makes or causes to be made a false fictitious, fraudulent or misleading statement of material fact in or omits a material fact from or causes a material fact to be omitted from any certification filed pursuant to this subsection.
Plaintiff's counsel conceded at oral argument that his failure to request, much less produce, the required physician certification or move for an extension of time to file a physician certification within the second sixty-day statutory period represented a lack of proper diligence, which effectively nullified any justification for a good cause extension, whether based upon extraordinary circumstances or substantial compliance. Plaintiff's late production of a physician certification controverted the express provisions of N.J.S.A. 39:6A-8a. We are satisfied that the trial judge erred in finding the existence of good cause based upon the apparent unawareness of counsel that a certification was due and the 120 day statutory time period had run. See Palanque v. Lambert-Woolley 327 N.J.Super. 158, 164, 742 A.2d 1002 (2000), cited with approval but rev'd on other grounds, 168 N.J. 398, 403, 774 A.2d 501 (2001); Burns v. Belafsky, 166 N.J. 466, 766 A.2d 1095 (2001).
Accordingly, we move on to address the pivotal issuespecifically, what sanction or remedy lies for failing to file a timely physician certification. Defendant asserts that the requirement that a plaintiff submit a physician certification pursuant to AICRA is analogous with the required submission of an affidavit of merit in a professional malpractice action, N.J.S.A. 2A:53A-27. Defendant argues that a plaintiff's failure to comply with the filing requirements of AICRA, like the failure to abide by the requirements of the Affidavit of Merit Statute, mandates a dismissal "with prejudice in all but extraordinary circumstances." Cornblatt v. Barow, 153 N.J. 218, 242, 708 A.2d 401 (1998). We agree that a dismissal is warranted where there is a failure to comply with the physician certification filing requirements. However, we remain unconvinced that the dismissal should be with prejudice.
In 1995, the Affidavit of Merit Statute was enacted as part of a comprehensive package of tort reform bills passed in an effort "to `bring common sense and equity to the state's civil litigation system.'" Id. at 228, 708 A.2d 401 (quoting Office of the *485 Governor, News Release 1 (June 29, 1995)). That statute provides in pertinent part:
In any action for damages for personal injures, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
[N.J.S.A. 2A:53A-27.]
The purpose of the affidavit of merit is "to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious." In re Petition of Hall, 147 N.J. 379, 391, 688 A.2d 81 (1997). Failure to provide an affidavit "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. In reaching its conclusion that, absent a showing of extraordinary circumstances, a dismissal with prejudice would lie for failure to comply with the Affidavit of Merit Statute, the Court in Cornblatt observed that the dismissal was (1) "a violation of a statute rather than a court-imposed rule or order" and (2) "[t]he violation giving rise to the dismissal goes to the heart of the cause of action as defined by the Legislature." Cornblatt, supra, 153 N.J. at 244, 708 A.2d 401.
Here, as in Cornblatt, plaintiff's failure to either file a timely physician certification or, alternatively, move within the statutory limitation period for a good cause extension represents a violation of statute rather than court rule or order. Therefore, our analysis focuses on whether the failure to comply with the statutory mandate "goes to the heart of cause of action as defined by the Legislature." Ibid.
Unlike the Affidavit of Merit Statute, N.J.S.A. 2A:5A-29, AICRA does not have a specific deemer provision which addresses the effect of the failure to comply with the certification requirement. Instead, the Act provides that a plaintiff "shall" provide the required certification "[i]n order to satisfy the tort option provisions" of the subsection, which describes the types of injury required to qualify for non-economic damages under the limitation on lawsuit option. N.J.S.A. 39:6A-8a. There is no comparable provision in AICRA expressing that the failure to comply with the physician certification goes "to the heart of the cause of action."
Comparison with statutes mandating automobile arbitration, N.J.S.A. 39:6A-24 to -35, which require the filing of a motion for trial de novo within thirty days of the arbitration decision, is enlightening. N.J.S.A. 39:6A-31 provides in pertinent part that, absent a timely motion for a trial de novo or, alternatively, a motion to modify or vacate the arbitration award, "the court shall upon motion ... confirm the arbitration decision, and the action of the court shall have the same effect and be enforceable as a judgment in any other action." In Hartsfield v. Fantini, 149 N.J. 611, 695 A.2d 259 (1997), and Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 695 A.2d 257 (1997), the party seeking trial de novo failed to file the required motion within the thirty-day period and the adverse party moved to confirm the *486 arbitration award. In both cases the Court affirmed entry of judgment in favor of the party requesting confirmation of arbitration award, and denied relief to the party seeking trial de novo, concluding that the failure to file a timely de novo application was occasioned by attorney neglect, which did not constitute extraordinary circumstances. See also Accilien v. Consolidated Rail, 323 N.J.Super. 595, 733 A.2d 1229 (1999) (holding that the dismissal of an action after the arbitrator found no cause for action was with prejudice where plaintiff failed to move timely for trial de novo).
Addressing the holdings in Hartsfield and Wallace, the Court in Cornblatt noted that the applicable statutes required that the motion de novo be filed within thirty days and "that the failure to file within that time period would result in dismissal of any future court actions." Cornblatt, supra, 153 N.J. at 246, 708 A.2d 401. Recognizing that a dismissal with prejudice was the proper remedy for non-compliance with the procedural requirements prescribed by the mandatory automobile arbitration statutes, the Court in Cornblatt observed that a dismissal with prejudice, absent extraordinary circumstances, should be entered where "a plaintiff's failure to comply with both substantive and procedural requirements [are] consistent with imputed legislative intent." Id. at 246, 708 A.2d 401 (emphasis added). By contrast, the lack of an express provision in AICRA similar to that found in N.J.S.A. 39:6A-31, requiring the entry of judgment against the non-compliant party, leads us to conclude that the imputed Legislative intent requiring dismissal of future actions found under the automobile arbitration statute is absent in AICRA.
The want of a deemer provision (N.J.S.A. 2A:53A-29) or an expression of finality as that associated with a judgment (N.J.S.A. 39:6A-31) does not end our inquiry. We examine the legislative history in order to gain some insight into the Legislature's intent. Generally, extrinsic evidence may be used to ascertain legislative intent, including committee reports and legislative history. State v. Hoffman, 149 N.J. 564, 578, 695 A.2d 236 (1997). Our goal is to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." Merin v. Maglaki, 126 N.J. 430, 435, 599 A.2d 1256 (1992) (quoting State v. Maguire, 84 N.J. 508, 514, 423 A.2d 294 (1980) (footnote omitted)). Although our interpretation of a statute is not bound by legislative history and sponsor statements, they nevertheless provide us with important insight into the Legislature's intent and the statute's "overall policy and purpose." Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 211-213, 584 A.2d 784 (1991); Nebinger v. Maryland Cas. Co., 312 N.J.Super. 400, 406, 711 A.2d 985 (App.Div.1998); see, e.g., Innes v. Innes, 117 N.J. 496, 505-12, 569 A.2d 770 (1990).
Section II of the Governor's conditional veto message,[3] entitled "Summary and Analysis of the Bill," discussed the principal provisions of the bill in light of "the level of interest in and the certainty of judicial interpretation." Governor's Veto Message, Senate Bill No. 3 (April 27, 1998). The analysis was broken down into two pertinent subsections: Subsection A, designated "Revised Lawsuit Threshold," was confined to approval of the new threshold language in light of the conclusion that "[t]he 1988 threshold has not *487 worked." That subsection states in pertinent part:
By allowing recovery for injuries that are nonpermanent, i.e., that heal, and for fractures that are not serious, the statute has not served as a meaningful limitation to control premium costs....
[The] Senate Bill ... replaces the existing lawsuit threshold, under which temporary, nonserious injuries qualify, with a requirement that fractures be displaced and that other injuries be serious enough never to heal sufficiently to regain normal function....
In short, I am confident that, construed in the light of the statute's clear purpose to limit standing for recovery for pain and suffering, the proposed lawsuit threshold represents a significant improvement over current law. The savings resulting from adoption of this measure will be substantial.
Subsection B of the conditional veto message, entitled "Anti Fraud Measures," discussed the physician certification requirement and made the following pertinent observations:
Complementing the tightened lawsuit threshold in controlling premium costs are several measures designed to combat fraud. First, every complaint in a pain and suffering lawsuit brought under the lawsuit threshold must be accompanied by a certification from the treating physician attesting the seriousness of the plaintiff's condition. The certification is executed under penalty of perjury; fraudulent filing of a certification is grounds for imprisonment and revocation of one's professional license. The certification is intended as an anti fraud measure to assure legitimacy; it is necessary to state a claim, not sufficient to establish one, and will be subject to challenge through the normal discovery and summary judgment processes. (Emphasis added).
The sponsors' statement also sheds light on the purpose behind requiring a physician certification. Discussing the new verbal threshold first, the statement relates:
[In] order to further limit the number of lawsuits filed and thereby reduce premiums for bodily injury coverage, the bill completely eliminates the existing verbal threshold and substitutes a new verbal threshold which is intended to eliminate some of the lawsuits for minor injuries, including soft tissue injuries, which are neither serious nor permanent. (Emphasis added).
The statement also addresses the reasons for the required certification:
Certification by a licensed treating physician that the body part or organ system has not healed to function normally and will not heal to function normally would be necessary before suit was filed. The certification would have to be based on objective clinical evidence which would include medical testing. Fraudulent certification by a physician could be a crime of the fourth degree. (Emphasis added).
Though not reflected in the record of the legislative history, the final version passed by the Legislature did not require filing of the certification contemporaneously with a plaintiff's complaint, but instead mandated its production, as a collateral document, subsequent to the filing of a plaintiff's complaint.
Like the final version of the statute, the legislative history is silent respecting whether or not the failure to comply with the certification requirement goes to the heart of the cause of action or should result in a dismissal with prejudice. Where a statute is "silent," our interpretation must be in accordance with the Legislature's intent. Accountemps v. Birch *488 Tree Group, 115 N.J. 614, 622, 560 A.2d 663 (1989); Union County Bd. of Chosen Freeholders v. Union County Park Comm'n., 41 N.J. 333, 337, 196 A.2d 781 (1964). We glean from the above legislative history that the primary and overriding purpose for requiring a physician certification is to weed out fraud occasioned by those in both the medical and legal professions who knowingly make, or cause to be made, false or misleading statements concerning the nature and extent of a claimant's injuries. Both the sponsors' statement and the conditional veto message make it clear that it is the revised verbal threshold, not the failure to file the certification, that is intended to "limit the number of lawsuits."
The physician certification requirement is intended as an anti-fraud measure to assure legitimacy, thus amounting to the imposition of a condition for the continued maintenance of a lawsuit. There is no similar provision in the Affidavit of Merit Statute delineating criminal conduct for one who purposely or knowingly makes or causes a fictitious, fraudulent or misleading certification to be filed. N.J.S.A. 39:6A-8a; cf. N.J.S.A. 2A:53A-27 to -29. The certification is a collateral pleading without which a plaintiff is precluded from continuing to prosecute an action. The requirement is procedural in nature related to the sufficiency of the pleadings, i.e. the statement of a claim. The required production is not intended to go to the establishment of a cause of action. We conclude that the failure to comply with the physician certification requirement of AICRA was not intended by the Legislature to preclude future suits for legitimate injuries sustained as the result of another's negligence.
Our analysis is consistent with R. 4:6-2(e), Failure to State a Claim, and the holding in Print Mart v. Sharp Electronics, 116 N.J. 739, 772, 563 A.2d 31 (1989) that, "barring any other impediment such as a statute of limitations," a dismissal without prejudice should ordinarily be granted in response to a successful motion for failure to state a claim. Here, the impediment to future causes of action created by the Legislature was the revised verbal threshold, not the failure to file a physician certification.
Velasquez v. Franz, 123 N.J. 498, 589 A.2d 143 (1991), concerned the application of the Illinois Business Corporations Act of 1983, which barred all claims that accrue against a corporation subsequent to its dissolution. It is illustrative of the type of impediment which would result in a dismissal with prejudice. The issue resolved by the Court in Velasquez was whether a prior federal court dismissal for "failure to state a claim upon which relief can be granted" was to be treated as with prejudice and subject to res judicata. The federal district court dismissed the plaintiff's product liability action after determining that Illinois law applied and plaintiff lacked the capacity to bring suit for injuries received in an accident occurring thirteen days after the corporation was dissolved. The Court in Velasquez held that the federal court's dismissal, which acknowledged that plaintiff could not prove a set of facts which would entitle him to relief, represented a dismissal on the merits. Id. at 511, 589 A.2d 143.
The legislative impediment created by the Affidavit of Merit Statute and the mandatory automobile arbitration statutes, like that created by the Illinois Legislature, goes to the heart of the cause of action, such that failure to comply bars future prosecution. By contrast, the physician certification requirement in AICRA focuses not on the heart of the cause of action, i.e. negligence and injury, but instead is limited to the nature and extent *489 of plaintiff's injuries existing at the time that the certification is authored.
We are satisfied, therefore, that the inability to comply with the production of a physician certification should not result in a dismissal with prejudice but should permit a future action in the event a plaintiff's injuries worsen, such that the treating doctor or specialist believes they meet the revised verbal threshold within the statute of limitations. We add, however, the following caveat. Because the certification is a collateral pleading, a complaint that has been previously dismissed without prejudice for failure to produce a compliant certification may be subject to sanctions pursuant to R. 1:4-8, Frivolous Litigation, and R. 4:6-4(b), Impropriety of Pleadings, if not accompanied by a valid physician certification pursuant to N.J.S.A. 39:6A-8a when refiled. We refer to the Civil Practice Committee the question of whether a specific court rule should be proposed and recommended to the Supreme Court which would require a plaintiff, who files a subsequent complaint with a compliant certification, to nevertheless pay sanctions sufficient to reimburse the defendant for expenses incurred in defending a prior lawsuit dismissed without prejudice for failure to comply with the physician certification requirement of N.J.S.A. 39:6A-8a.
We conclude that the motion judge's failure to dismiss plaintiff's complaint without prejudice was error. Notwithstanding our conclusion, and in view of plaintiff's production of a physician certification, albeit out of time, we are convinced that entry of an order of dismissal, at this time, would only delay the ultimate outcome and increase litigation expense. We, therefore, remand this matter for further proceedings. In doing so, we make no determination respecting the sufficiency of plaintiff's injuries or whether they in fact satisfy the verbal threshold. We leave that decision to further proceedings in the Law Division. We do not retain jurisdiction.
Remanded for further proceedings.
NOTES
[1] A second certification from Dr. Hochberg, dated November 2, 2000, was included in defendants' appendix; however, as it is substantially similar to the certification filed on October 6, it need not be discussed further.
[2] Although referred to as exhibit 19 in Rabb's affidavit, Dr. Franks' records are not provided in the appendix submitted. The only correspondence submitted is a letter dated November 2, 2000, from Rabb to defendants' counsel submitting an undated copy of the certification of Dr. Hochberg previously submitted on October 10, 2000, in response to defendants' motion to dismiss.
[3] The Governor's Conditional Veto concerned other provisions of the statute and did not recommend any changes in either the wording of the new verbal threshold or the requirement for filing a physician certification. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386275/ | 782 A.2d 1204 (2001)
Michael BLUM
v.
Theodore H. FRIEDMAN, Robert G. Oakes, Frank R. Pinto, Town of Winhall Selectboard and Town of Winhall.
No. 00-341.
Supreme Court of Vermont.
September 12, 2001.
*1205 Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
ENTRY ORDER
Plaintiff Michael Blum appeals from the Bennington Superior Court's grant of the V.R.C.P. 12(b)(6) motion to dismiss of defendants Theodore Friedman, Robert Oakes, Frank Pinto, the Town of Winhall Selectboard and the Town of Winhall (collectively Town). Plaintiff claims the trial court erred in (1) applying an incorrect standard in dismissing his complaint[1], (2) applying the exception within 1 V.S.A. § 313(a)(1), (3) dismissing his First Amendment claim, and (4) dismissing his access to public documents and breach of contract claims. We reverse and remand.
When reviewing judgments of dismissal under V.R.C.P. 12(b)(6) we accept all allegations pleaded in the complaint, as well as reasonable inferences from the complaint, to be true, and treat all contrary allegations of the moving party as false. Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997). Plaintiff's complaint states that he resides in the Town of Winhall, and his home is located in an area where many nonresidents own homes. The Stratton Corporation provides municipal services to these home owners, including road maintenance and improvements, under a contract negotiated with the town. The Stratton Corporation charges the home owners directly, and not the town, for the services. Periodically, the corporation and the town renegotiate the agreement for the services the corporation provides. Plaintiff requested to be present during the renegotiation meetings between the town selectboard and the corporation, and was refused.
Plaintiff also requested property tax documents in electronic format under Vermont's *1206 access to public documents law, 1 V.S.A. § 316(a). The town agreed to provide the documents in return for a fee, which plaintiff paid. The town has now refused to provide the documents.
As to the meetings, plaintiff alleged that defendants violated the open meeting law and, also, violated his First Amendment right of access to the meetings and sought a declaratory judgment and an injunction against conducting future meetings in executive session. As to the documents, plaintiff alleged that defendants violated the access to public records law and breached the contract to provide him the records. On these counts, he sought an order requiring defendants to give him the records.
In response to defendants' motion to dismiss, the court dismissed plaintiff's complaint ruling: (1) preliminary contract negotiations of the kind involved here are exempted from public access by 1 V.S.A. § 313(a)(1); (2) plaintiff has failed to demonstrate that he suffered harm from the denial of access to the negotiation because he can be present when the selectboard formally signs the resulting agreements in open session; (3) because plaintiff had no right to be present at the negotiating sessions, his First Amendment claim fails; (4) plaintiff's complaint demands a "usable" copy of the tax records, and the law does not require the town to produce records in that format; (5) if plaintiff has no right to the records under the statute, his contractual claim must also fail.
The standard to be applied to a Rule 12(b)(6) motion is set out in Amiot: to grant the motion, it must appear "`beyond doubt' that there exist no facts or circumstances that would entitle the plaintiff to relief." 166 Vt. at 291, 693 A.2d at 677 (quoting Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982)). Using this standard, we cannot affirm the decision of the trial court.
Plaintiff first argues that the court erred in applying the open meeting law exception in 1 V.S.A. § 313(a). Vermont's open meeting law requires meetings of a public body "to be open to the public at all times, except as provided in section 313." 1 V.S.A. § 312(a). In Trombley v. Bellows Falls Union High School, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993), we ruled that Vermont's open meeting law is to be construed liberally, except that the exceptions must be construed strictly, in order to provide "open access to public meetings for members of the public." The exception relevant to this case, and invoked by the trial court, is the exception contained in 1 V.S.A. § 313(a)(1).[2] This exception allows public bodies to hold executive sessions to consider "[c]ontracts [and] labor relations agreements with employees" if "premature general public knowledge would clearly place" the town "at a substantial disadvantage." Id. Accordingly, discussion of contracts in executive session is permissible only when a "substantial disadvantage" is present. Id.; see also Trombley, 160 Vt. at 104-05, 624 A.2d at 860.
In essence, the superior court held that all contract negotiations necessarily meet the statutory standard. That approach is prohibited by Trombley, which requires a case by case analysis of the application of the "substantial disadvantage" proviso in the exception. Trombley, 160 Vt. at 104, *1207 624 A.2d at 860-61. Indeed, it is unclear how access to the negotiation would place the town at a substantial disadvantage since the adversary in the negotiation, Stratton Corporation, is already present.
Defendants argue, however, that we should not consider this objection to the superior court decision because plaintiff never raised the application of the statutory exception in his complaint. We reject this argument as inconsistent with the limited role of the court in addressing a Rule 12(b)(6) motion. Plaintiff pled that the negotiating meetings should be open under the open meeting law, and the decision to hold them in executive session was unlawful. It is up to defendants to show that they are entitled to an exception from public access and that "no facts or circumstances" would entitle plaintiff to relief.
Second, plaintiff alleges that the court erred in concluding that he does not have standing. The private remedy provision of the open meeting law requires that plaintiff be "aggrieved" by the action of the town. 1 V.S.A. § 314(b); Trombley, 160 Vt. at 105, 624 A.2d at 861. We have applied general standing doctrine to similar statutory standing requirements. See In re Diel, 158 Vt. 549, 552, 614 A.2d 1223, 1225-26 (1992). The main standing requirement is that plaintiff show threat of injury to a protected interest. Richards v. Town of Norwich, 169 Vt. 74, 77, 726 A.2d 81, 85 (1999); see generally Parker v. Town of Milton, 169 Vt. 74, 77, 726 A.2d 477, 480 (1998). In the context of a motion to dismiss, plaintiff has pled sufficient injury to show he is aggrieved. Richards, 169 Vt. at 49, 726 A.2d at 85. The town is negotiating the level of fees and charges which plaintiff will pay, and he wants to observe what positions his elected officials take in that negotiation.
We cannot accept that plaintiff does not have standing because he can object to any contract before the selectboard formally agrees to it, an act they have to take in open session. See 1 V.S.A. § 313(a). Under that theory no member of the public can ever object to an executive session because the law requires that the formal acts be taken in open session.
Next, plaintiff argues that the court erred in dismissing his access to public documents law claim. Again, we stress that the standard is whether the complaint shows beyond doubt that there are no facts or circumstances that would entitle plaintiff to relief. The court focused on the allegations that defendants offered some records to plaintiff, but plaintiff found the records offered not usable and complete. The court held that the statute does not require that copies of requested material be in "usable" form; rather it requires only that the material be presented in "standard format" in "which the record is maintained." 1 V.S.A. § 316(h). On this theory, it dismissed the complaint as inadequate. While we agree with the superior court that the statute does not require the agency to provide the information in usable form, plaintiff also alleged that the information was not complete. Again, we conclude that the court struck too soon in dismissing the complaint.
We have a similar reaction to the last issue the rejection on the face of the complaint of plaintiff's theory that defendants contractually obligated themselves to provide the information in the format plaintiff requested. We see nothing in the law which prevents a public agency from contractually binding itself to provide electronic versions of documents in a specified format in return for sufficient consideration.
Plaintiff also filed a motion to take judicial notice of the judgment of the Bennington Superior Court decision in the *1208 companion tax appeal case. We find the information contained in the companion case to be unnecessary to our decision, and we have not considered this evidence. See State v. Malinowski, 148 Vt. 517, 523 n. 3, 536 A.2d 921, 925 n. 3 (1987).
Reversed and remanded.
NOTES
[1] We do not reach this claim independent of the substantive claims.
[2] The superior court assumed that the negotiating sessions are meetings for purposes of the act, see 1 V.S.A. § 310(2), and neither party has contested that assumption. Similarly, the parties agree that § 313(a)(1) applies, although the "meetings" are negotiating sessions in which the other party to the contract is present. We rely on both assumptions without examining their accuracy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386296/ | 782 A.2d 1121 (2001)
THE LAKE NAOMI CLUB, INC. and Timber Trails Community Association, Inc.,
v.
MONROE COUNTY BOARD OF ASSESSMENT APPEALS and Monroe County, Appellants.
Commonwealth Court of Pennsylvania.
Argued April 2, 2001.
Decided August 23, 2001.
Mark S. Love, Tannersville, for appellants.
Janet K. Catina, Stroudsburg, for appellees.
Before McGINLEY, Judge, SMITH, Judge, and JIULIANTE, Senior Judge.
McGINLEY, Judge.
The Monroe County Board of Assessment Appeals (Board) and Monroe County (County) (collectively, Appellant) appeal from an order of the Court of Common Pleas of Monroe County (common pleas court) that reversed the Board's order and directed the Board and the Tax Assessor of Monroe County to comply with the provisions *1122 of Section 5105(b)(1) of the Uniform Planned Community Act (Act), 68 Pa.C.S. § 5105(b)(1).[1]
Appellant and the Lake Naomi Club, Inc. (Club) and Timber Trails Community Association, Inc. (Association) (collectively, Appellee) stipulated to the following:
2. Count I of the assessment appeals raises a legal issue regarding whether the ... [Act] is applicable to subdivisions in existence prior to its effective date or only prospectively to new subdivisions.
3. [Club] and [Association] ... are nonprofit corporations organized and existing under the laws of the Commonwealth of Pennsylvania.
4. Both the Association and the Club came into existence prior to February 2, 1997, which is the effective date of [the Act].
....
Stipulation of Fact And Law
....
7. The Association owns property in the Timber Trails subdivision, including property with Property Identification Number 19/119136 (the "Property")[2], for which exclusive easement rights and all rights to use the property have been conveyed.
8. The Property is for the exclusive use of the fee-paying members of the Association and the Club, all of which live within the Lake Naomi and Timber Trails subdivisions except approximately twenty-five property owners outside the Lake Naomi and Timber Trails subdivisions who have held memberships since the beginning of the development of the Communities in 1963. Further, employees of the Club are allowed to use the amenities on the Property as part of their compensation; a small number of people who serve the community in a volunteer capacity, such as members of fire, police and ambulance crews are allowed to use the amenities on the Property; and guests of members are allowed to play golf, when accompanied by a member, not more than ten times a year with a fee being assessed to the accompanying members each time the privilege is extended.
9. Prior and subsequent to February 2, 1997, the Property was annually assessed by ... Monroe County and taxes were annually imposed.... There was no change in assessment for the year 2000.
10. The Club filed with ... [the] Board of Assessment Appeals and appeal (the "Appeal") from those assessments for the year 2000. A hearing on the Appeal was held by the Board of Assessment Appeals on October 4, 1999. Subsequently, by letter dated October 19, 1999,[3] the Appeal was denied....
11. The Timber Trails subdivision is a planned community within definition stated in the [Act], 68 Pa.C.S.A. § 5103.[4]
*1123 12. The Property is both `controlled facilities' and `common facilities' within the definitions stated in the [Act], 68 Pa.C.S.A. § 5103.
13. The Property is not `convertible real estate' or `withdrawable real estate within the definitions stated in the [Act], 68 Pa.C.S.A. § 5103. (emphasis added).
Stipulation between Lake Naomi Club, Inc., Timber Trails Community Association, Monroe County Board of Assessment Appeals and Monroe County, May 11, 2000, Paragraphs 2-4 and 7-13 at 1-4; R.R. at 13a-16a.
The common pleas court sustained the Club's and the Association's appeal and concluded that the Act prohibited taxation of common or controlled facilities and therefore the Property could not be assessed and taxed separately.
On appeal[5] Appellant contends that Section 5105(b) of the Act should not be applied retroactively to all planned communities created prior to the effective date of the Act. Appellant asserts that if the Act is applied retroactively the existing common areas will be removed from the tax rolls and Appellant will be denied a valid assessment.[6]
Section 5105(b) of the Act, 68 Pa.C.S. § 5105(b) provides:
Taxation and assessment.If there is a unit owner other than a declarant, each unit must be separately taxed and assessed. The value of the unit shall include the value of that unit's appurtenant interest in the common facilities, excluding convertible or withdrawable real estate. The following shall apply
(1) Except as provided in paragraph (2), no separate assessed value shall be attributed to and no separate tax shall be imposed against common facilities or controlled facilities.
(2) Convertible or withdrawable real estate shall be separately taxed and assessed until the expiration of the *1124 period during which conversion or withdrawal may occur. (emphasis added).
Further, Section 5103 of the Act, 68 P.S. § 5103 defines the following:
"Common facilities." Any real estate within a planned community which is owned by the association or leased to the association. The term does not include a unit.
....
"Controlled facilities." Any real estate within a planned community, whether or not a part of a unit, that is not a common facility but is maintained, improved, repaired, replaced, regulated, managed, insured or controlled by the association.
Appellant and Appellee stipulated that the Property qualifies as both a "controlled facilit[y]" and "common facilit[y]" as defined in Section 5103 of the Act, 68 Pa.C.S. § 5103. See Stipulation, Paragraph 12. Also, Appellant and Appellee stipulated that the Property is neither "convertible real estate" nor "withdrawable real estate." Here, the language of Section 5105 of the Act is unambiguous. Appellant "shall" not attribute an assessed value to the Property or impose a separate tax against the Property. "By definition, `shall' is mandatory ... [and][a]ccordingly, there is no room to overlook the statute's plain language to reach a different result." Oberneder v. Link Computer Corp., 548 Pa. 201, 205, 696 A.2d 148 (1997), citing Coretsky v. Bd. Of Commissioners, 520 Pa. 513, 518, 555 A.2d 72, 74 (1989).
However, Appellant asserts that Section 5105 of the Act must not be applied retroactively to planned communities created prior to the effective date of the Act. This Court rejects this argument.
Section 5102 of the Act, 68 Pa.C.S. § 5102 provides:
(a) General rule. This subpart applies to all planned communities created within this Commonwealth after the effective date of this subpart;
....
(b) Retroactivity. Except as provided in subsection (c), sectio[n] 5105 ... to the extent necessary in construing any of those sections, apply to all planned communities created in this Commonwealth before the effective date of this subpart; but those sections apply only with respect to events and circumstances occurring after the effective date of this subpart and do not invalidate specific provisions contained in existing provisions of the declaration, bylaws or plats and plans of those planned communities. (emphasis added).
Again, Section 5102(b) of the Act is unambiguous. Firstly, the effective date of the Act was February 2, 1997, (the Act became law on December 19, 1996, and became effective forty-five days later). Secondly, Appellant and Appellee stipulated that Appellee is a planned community created prior to the effective date of the Act. See Stipulation, Paragraph 4. Thirdly, all relevant events, namely that the questioned tax assessment was in 1999 and was applied to the calendar year 2000, took place subsequent to the effective date of Act. Lastly, each annual assessment and each annual imposition of a tax is a separate event. Therefore, Section 5102(b) of the Act controls. Section 1921 of the Statutory Construction Act, 1 Pa.C.S. § 1921 provides that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing the law."
Next, Appellant contends that the term "only with respect to events and circumstances occurring after the effective date of this subpart", found in Section 5102(b) *1125 of the Act, must be construed to require a countywide assessment, at which time the County shall comply with the Act "to include the value of that unit's appurtenant interest in the common facilities" so that each unit is accurately and "separately taxed and assessed." See Section 5105(b) of the Act.
Appellant's interpretation of Section 5102(b) is flawed based upon the clear language of Section 5105(b)(1) of the Act. Appellant may not attribute a separate value to a common facility.
Accordingly, we affirm.[7]
ORDER
AND NOW, this 23rd day of August, 2001, the order of the Court of Common Pleas of Monroe County in the abovecaptioned matter is affirmed.
SMITH, Judge, Dissenting.
I dissent from the Majority's decision to affirm the order of the Court of Common Pleas of Monroe County, which required the Monroe County Board of Assessment Appeals and the Tax Assessor of Monroe County to comply with the explicit provisions of Section 5105(b)(1) of the Uniform Planned Community Act (Act), 68 Pa.C.S. § 5105(b)(1).[1] The order resulted in the striking of the separate real estate tax assessment by Monroe County for the 2000 tax year on the Timber Trails golf course and related common amenities and facilities within the Timber Trails subdivision, a planned community.[2]
The question presented in this appeal is whether Section 5105(b)(1) of the Act applies retroactively to planned communities created in the Commonwealth prior to the effective date of the Act on February 2, 1997. Appellants correctly note that this case involves the continued real estate tax assessment treatment of the Timber Trails golf course and that the question of the taxability of the Owners' golf course was decided prior to enactment of the Act in Timber Trails Community Ass'n v. County of Monroe, 150 Pa.Cmwlth. 29, 614 A.2d 342 (1992).[3] The Majority does not cite *1126 Timber Trails Community Ass'n nor the case relied upon by the trial court, E.L.C.A. Development Corp. v. Lackawanna County Board of Assessment Appeals, 752 A.2d 466 (Pa.Cmwlth.2000).
The parties stipulated that Count I of the Owners' assessment appeal raised a legal issue of whether the Act applies retroactively to subdivisions in existence before the effective date of the Act. They also stipulated that the Timber Trails subdivision is a planned community; that the Owners and the golf course existed before the effective date of the Act; that the golf course was assessed annually before and after the effective date of the Act; that the property represents both common facilities and controlled facilities; and that the property is neither convertible nor withdrawal real estate pursuant to Section 5105(b)(2). Based on the parties' stipulation, the trial court concluded that this matter was controlled by the Court's decision in E.L.C.A. Development Corp. and reasoned that the tax assessment against the Owners' golf course violated the Act's prohibition against taxation of common or controlled facilities.
I agree with Appellants' initial argument that the Act should not apply retroactively to the tax assessment against the Owners' property in this case because the assessment represents an event that occurred prior to the effective date of the Act. The Act requires an event or occurrence that occurs after the effective date of the Act, which represents some thing or happening as distinguished from something that already exists.[4] I agree as well that the trial court erred in relying on E.L.C.A. Development Corp. because the issue of retroactivity of the Act was not directly addressed in that case. The issue before the trial court and before this Court on appeal by taxpayers from real estate tax assessments for 1998 and thereafter was whether the assessed property was convertible and/or withdrawable real estate.[5]
Appellants are correct that the Court must interpret the retroactivity provision of Section 5105 of the Act consistently with the rules of statutory construction, principally the rules that the Legislature does *1127 not intend an absurd or unreasonable result or a violation of the constitution and favors the public interest against any private interest. Section 1922(1), (3) and (5) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1), (3) and (5). For this Court to logically apply the retroactivity provisions of the Act there must be some event or occurrence, which did not exist or occur on a routine or regular basis before and after the effective date of the Act. The County's regular assessment and taxation of real property is not such an event or occurrence.
I therefore agree with Appellants that the only logical construction of Section 5102(b) of the Act would be the requirement of a countywide reassessment, an event or occurrence after the effective date of the Act. At that time Monroe County could delete the Timber Trails golf course from the tax rolls and add value to the individual owners' units. The Act provides that each unit in a planned community constitutes a separate parcel of real estate, including rights to any common facilities, and the unit's value shall include the value of the unit's interest in common facilities. See 68 Pa.C.S. §§ 5105(a), 5105(b). Because the trial court erred in ruling that the County's tax assessment for the year 2000 violated the Act's prohibition against the taxation of common or of controlled facilities in planned communities, the court's order should be reversed and the decision of the Board reinstated.
NOTES
[1] This case was reassigned to the opinion writer on July 16, 2001.
[2] The Property is a golf course and was assessed a market value of $51,210.
[3] The Letter stated that "[t]he Board of Assessment Appeals in an open meeting has decided that your assessment is in order" and "[t]herefore, the assessment on your property will remain unchanged from that set for the 2000 assessment year." Letter of October 19, 1999, Thomas J. Hill to Lake Naomi Club at 1; Reproduced Record (R.R.) at 4a.
[4] Section 5103 of the Act defines "planned community" as:
Real estate with respect to which a person, by virtue of ownership of an interest in any portion of the real estate, is or may become obligated by covenant, easement or agreement imposed on the owner's interest to pay any amount for real property taxes, insurance, maintenance, repair, improvement, management, administration or regulation of any part of the real estate other than the portion or interest owned solely by the person. The term excludes a cooperative and a condominium, but a condominium or cooperative may be part of a planned community. For purposes of this definition, `ownership' includes holding a leasehold interest of more than 20 years, including renewal options, in real estate. The term includes nonresidential campground communities.
[5] This Court's review in a tax assessment case is limited to a determination of whether the common pleas court's decision is supported by substantial evidence, whether the common pleas court erred as a matter of law or abused its discretion. Wilkes-Barre Holiday Inn v. Luzerne County Board of Assessment Appeals, 674 A.2d 1181 (Pa.Cmwlth.1996).
[6] In Paragraph 4 of the Stipulation, Appellant and Appellee stated that "[t]his Honorable Court should decide this case on a case stated basis." Appellee contends that this Court does not have jurisdiction to address the merits of this argument because the present matter was submitted to the common pleas court on a "case stated" basis, and Appellant and Appellee sought to have the common pleas court enter a full and final judgment in the matter.
Pa.R.C.P. 1038.2 provides that the "[c]ommon law procedure of a case stated is abolished." The Note to Pa.R.C.P. 1038.2 provides that "[t]he common law procedure of a case stated is no longer required in view of the practice of submitting a case on stipulated facts for decision by a judge without a jury. See Rule 1038.1." Section 705 of the "Fourth to Eighth Class County Assessment Law, Act of May 21, 1963, P.L. 571, as amended, 72 P.S. § 5453.705 provides that "[t]he board, or any person party to the appeal to the court of common pleas, may appeal from the judgment order or decree of the court of common pleas in any matter affecting the assessment...."
[7] Appellee contends that they are entitled to counsel fees. Pa.R.A.P. 2744 provides that "an appellate court may award ... reasonable counsel fees ... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." Our review of the record and the briefs fail to establish any such conduct on the part of Appellant, and we deny Appellee's request.
[1] Section 5105(b)(1) prohibits the imposition of real estate taxes on common facilities or on controlled facilities in a planned community, and the Act applies retroactively to a planned community created in the Commonwealth prior to the effective date of the Act so long as the events and circumstances affecting the planned community occurred after the effective date of the Act. See Section 5102(b) of the Act, as amended, 68 Pa.C.S. § 5102(b).
[2] Section 5103 of the Act, as amended 68 Pa.C.S. § 5103, defines a "planned community" as real estate with respect to which persons holding an ownership interest in any portion of the real estate are or may become liable by covenant, easement or agreement to pay an amount for taxes and other expenses for parts of the property other than those parts solely owned by the persons. The Act defines "common facilities" as any real estate within a planned community, which is either owned or leased by the association, and does not include a unit designated for separate ownership or occupancy. Id. "Controlled facilities" are defined as any real estate in a planned community which is not a common facility but is maintained, improved, repaired, replaced, regulated or otherwise controlled by an association. A controlled facility may or may not be part of a unit. Id.
[3] The Court, sitting en banc, held in Timber Trails Community Ass'n that the Owners' golf course had value for tax assessment purposes for the 1989 and 1990 tax years because the property owners had non-exclusive easement rights to the common area golf course, which extended golf membership to individuals who were not lot owners. The golf course was assessed a market value of $51,210, and Appellants were assessed taxes against the golf course before and after the effective date of the Act. The assessment resulted from a countywide assessment of all properties effective for the 1989 tax year.
[4] See Black's Law Dictionary (4th Ed.1968) ("event" connotes something that comes to pass and an "occurrence" connotes an incident or event that happens without design or expectation).
[5] Convertible real estate refers to that portion of a flexible community which is not within a building containing a unit, within which additional units, limited common or controlled facilities or any combination thereof may be created, and withdrawable real estate refers to real estate which may be withdrawn from a flexible planned community. See 68 Pa.C.S. § 5103. Convertible or withdrawable property is separately assessed and taxed until it is no longer convertible or withdrawable. 68 Pa.C.S. § 5105(b)(2).
In E.L.C.A. Development Corp. the Court reversed the trial court's determination that the six subject parcels of land were not exempt from separate assessment and taxation because the properties were convertible and/or withdrawable real estate. The Court ruled that the parcels were not convertible or withdrawable real estate merely because members of the association could at some future time vote to sell common area real estate, but they were instead common or controlled areas not separately assessable or taxable under the Act. If any parcels were sold or developed with additional units or limited common or controlled facilities, then at that time they could be separately assessed and taxed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386304/ | 782 A.2d 1102 (2001)
Arthur J. MOATS, Petitioner,
v.
PENNSYLVANIA STATE POLICE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs, July 13, 2001.
Decided August 23, 2001.
*1103 Dale M. Brown, Washington, for petitioner.
Joanna N. Reynolds, Harrisburg, for respondent.
Before DOYLE, President Judge, McGINLEY, Judge, McCLOSKEY, Senior Judge.
McCLOSKEY, Senior Judge.
Arthur J. Moats (Petitioner), petitions for review of an order of an Administrative Law Judge (ALJ), sustaining a decision of the Pennsylvania State Police (PSP) that Petitioner's criminal history record is accurate. We affirm.
On or about June 25, 1958, Petitioner pled guilty and was convicted of larceny pursuant to Section 4807 of the Crimes Code, now repealed,[1] for stealing six dollars worth of gasoline. Petitioner was sentenced to three years probation. On April 6, 1999, Petitioner filed an application to renew his license to carry a firearm with the Fayette County Sheriff's Office. Pursuant to Section 6109(d) of the Pennsylvania Uniform Firearms Act of 1995(Act), 18 Pa.C.S. § 6109(d), the Sheriff investigated Petitioner's criminal history record. The Sheriff then denied Petitioner's application because of a 1958 larceny conviction, a crime punishable by imprisonment for a term exceeding one year.[2] The Sheriff's notice of the license denial included a "Pennsylvania Instant Check System Challenge" form and stated:
Please be advised, your request to carry a firearm concealed has been denied by the Pennsylvania State Police. You must fill out the enclosed form and send it to the Pennsylvania State Police within 30 days from the date of denial.
(R.R. at 1a).
Pursuant to Section 6111.1(e) of the Act, Petitioner completed the form to challenge the accuracy of his criminal record.[3] On *1104 July 8, 1999, the PSP notified Petitioner that his criminal history record was accurate and complete. (R.R. at 9a). Petitioner then appealed to the Office of Attorney General (OAG), arguing that his criminal history record should be corrected since the same conduct committed today would result in a conviction of theft by unlawful taking,[4] a misdemeanor of the third degree (M-3),[5] rather than larceny, a felony.
A hearing was held before an ALJ at which PSP introduced into evidence a certified copy of documents from the Beaver County Clerk of Courts and Petitioner's fingerprint card on file with the State Police Central Repository, both evidencing Petitioner's 1958 conviction. (R.R. at 13a-22a). Thereafter, the ALJ denied Petitioner's requested relief.
On appeal to this Court,[6] Petitioner argues that the ALJ erred by failing to correct his criminal history record. Specifically, Petitioner asserts that his criminal history record should reflect a conviction for the offense of theft by unlawful taking. Petitioner argues this correction is necessary because the crime of stealing six dollars worth of gasoline today would constitute that offense rather than larceny. We disagree.
Having reviewed the record in its entirety, we conclude that the ALJ properly denied Petitioner's request to change his criminal history record. The evidence presented clearly proves that Petitioner pled guilty to and was convicted of larceny. (R.R. at 13a-22a). Moreover, Petitioner conceded in his brief that he was convicted of larceny. (Petitioner's Brief at 4, 7). Thus, Petitioner's challenge to the accuracy of his criminal history record is without merit.
Additionally, Petitioner attempts to argue the merits of the denial of his firearms license; however, this issue is not properly before us. Nevertheless, we feel compelled to take this opportunity to review the proper procedure to appeal such a denial as set forth by the Act. With the exception of the city of Philadelphia, a city of the first class, a sheriff has the sole authority to grant or deny an individual's application for a firearms license.[7] A sheriff *1105 may deny an application based on factors other than the individual's criminal history record. See 18 Pa.C.S. § 6109(d). If an individual's license application is denied, he may appeal to the county's trial court which shall conduct a de novo review. See Harris v. Sheriff of Delaware County, 675 A.2d 400 (Pa.Cmwlth.1996); Gardner v. Jenkins, Sheriff of Montgomery County, 116 Pa.Cmwlth. 107, 541 A.2d 406 (1988), petition for allowance of appeal denied, 520 Pa. 620, 554 A.2d 511 (1988). An individual may then appeal to this Court and only then may we address the merits of the license denial.
In the instant case, we cannot address whether the Sheriff properly denied Petitioner's license application. Since Petitioner chose to follow the procedure set forth in Section 6111.1(e) of the Act, we may only review whether the ALJ's determination that Petitioner's criminal history record is accurate is supported by substantial evidence. As the record clearly reflects that Petitioner's criminal history record is accurate, the order of the ALJ is hereby affirmed.
ORDER
AND NOW, this 23rd day of August, 2001, the order of the Administrative Law Judge is hereby affirmed.
NOTES
[1] At the time of the commission of the offense in 1958, larceny was a felony punishable by up to a $2,000.00 fine and five years imprisonment. See Act of June 24, 1939, P.L. 872, formerly 18 Pa.C.S. § 4807, as reenacted, Act of December 6, 1972, P.L. 1482, 18 Pa.C.S. § 3921.
[2] Section 6109(e)(1)(viii) of the Act mandates that a license to carry a firearm shall not be issued to an individual who has been convicted of a crime punishable by imprisonment for a term exceeding one year. See 18 Pa.C.S. § 6109(e)(1)(viii).
[3] Section 6111.1(e) of the Act, 18 Pa.C.S. § 6111.1(e), provides:
(e) Challenge to records. Any person who is denied the right to receive, sell, transfer, possess, carry, manufacture, or purchase a firearm as a result of the procedures established by this section may challenge the accuracy of that person's criminal history, juvenile delinquency history or mental health record pursuant to a denial by the instantaneous records check in accordance with procedures established by the Pennsylvania State Police. The decision resulting from a challenge under this subsection may be appealed to the Attorney General within 30 days of the decision by the Pennsylvania State Police. The decision of the Attorney General may be appealed to the Commonwealth Court in accordance with court rule.
[4] Section 3921 of the Crimes Code, 18 Pa.C.S. § 3921(a), referring to theft by unlawful taking or disposition provides, "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." This section was enacted in 1973 after the Legislature decided to implement a graded offense system. Additionally, this section repealed Section 4807 of the Crimes Code under which Petitioner was convicted.
[5] Section 3903(b)(2) of the Crimes Code, 18 Pa.C.S. § 3930(b)(2), provides that property not taken from a person, by threat or by breach of fiduciary obligation and involves an amount less than fifty dollars shall constitute a misdemeanor of the third degree (M-3). A person convicted of an M-3 may be sentenced to a term of imprisonment not to exceed one year. See 18 Pa.C.S. § 1104(3).
[6] Our scope of review is limited to a determination of whether necessary findings of fact are supported by substantial evidence, an error of law was committed or whether constitutional rights were violated. See Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.
[7] Section 6109(b) of the Act, 18 Pa.C.S. § 6109(b), provides:
(b) Place of application. An individual who is 21 years of age or older may apply to a sheriff for a license to carry a firearm concealed on or about his person or in a vehicle within this Commonwealth. If the applicant is a resident of this Commonwealth, he shall make application with the sheriff of the county in which he resides or, if a resident of a city of the first class, with the chief of police of that city. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386318/ | 782 A.2d 1088 (2001)
Theresa SNYDER, Francis Snyder, Richard Snyder, Janet Snyder, William Hardestey, Mrs. William Hardestey, Francis Flannery, Dorothy Flannery, Charles Wagner, Edward Koszarek, Mrs. Edward Koszarek, Dr. Anna O'Riordan, William McCloskey, Patricia McCloskey, Dorothy Ward, Dorothy Woods, James Fallon, Regina Gillespie, Joseph Sprat, Elizabeth Morris, Donna Sprat, Daniel McCartney, Irene McCartney and David Peppelman, Appellants,
v.
The ZONING HEARING BOARD OF WARMINSTER TOWNSHIP and Planned Parenthood Association of Bucks County.
Commonwealth Court of Pennsylvania.
Argued June 6, 2001.
Decided August 21, 2001.
Reargument Denied October 22, 2001.
James T. Owens, West Chester, for appellants.
Andrew W. Bonekemper and Marc. D. Jonas, Lansdale, for appellee, Planned Parenthood Assoc. of Bucks County.
Stephen B. Harris, Warrington, for appellee. The ZHB of Warminster Twp.
Before FRIEDMAN, Judge, FLAHERTY and RODGERS, Senior Judges.
Reargument En Banc Denied October 22, 2001.
FRIEDMAN, Judge.
Theresa Snyder, et al. (Appellants) appeal from an October 24, 2000 order of the Court of Common Pleas of Bucks County (trial court) affirming the decision of the Warminster Zoning Hearing Board (Board), which determined that the performance of induced abortions as an outpatient service is a permitted use pursuant to Use 19 of the Warminster Township (Township) Zoning Ordinance (Ordinance).
*1089 Planned Parenthood owns and occupies property located at 610 Louis Drive (Property) in the Township. (Board's Findings of Fact, No. 1.) The Property is located in the I Industrial zoning district, where Use 19 is permitted by right. (Board's Findings of Fact, Nos. 17, 28.) Use 19 permits an "[o]ffice or clinic for medical or dental examination or treatment of persons as out-patients including laboratories incidental thereto."
On June 8, 1999, Planned Parenthood applied for a Use and Occupancy permit with the Township, (Board's Findings of Fact, No. 2); however, at no time did Planned Parenthood inform Township officials of its intention to perform induced abortions at this location.[1] (Board's op. at Discussion.) On June 18, 1999, the Township's Zoning Officer issued a temporary permit, and, after Planned Parenthood complied with certain construction requirements, the Zoning Officer granted a final permit on September 27, 1999.[2] (Board's Findings of Fact, No. 3.) On December 28, 1999, Appellants filed an appeal nunc pro tunc with the Board, and the Board held hearings on February 7 and 8, 2000. (Board's Findings of Fact, Nos. 7-8, 15.) At the hearings, Appellants argued that induced abortions are not a permitted use under Use 19 of the Ordinance and that the addition of this service was an impermissible change in use. Specifically, Appellants argued that an induced abortion is a non-medical, surgical procedure and that the performance of surgeries is not a permissible use under Use 19.
By a three to two majority, in a decision dated March 23, 2000, the Board upheld the issuance of the permit. In doing so, the Board concluded that induced abortions are medical procedures and, because the Ordinance does not differentiate between surgical medical procedures and non-surgical medical procedures, the Board concluded that the abortions performed by Planned Parenthood are a permitted use under Use 19. On March 8, 2000, Appellants filed an appeal with the trial court, which affirmed the Board's decision.
Appellants now appeal to this court,[3] arguing that the trial court erred in affirming the Board's determination that induced abortions fall within Use 19 of the Ordinance. Before we reach this substantive issue, however, we must address the procedural arguments raised by Planned Parenthood. Initially, Planned Parenthood argues that Appellants' appeal of the Board's decision to the trial court was premature and, thus, should have been quashed. We agree.
*1090 The timeliness of an appeal relates to the jurisdiction of a court and its competency to act. In re Order of Nether Providence Zoning Hearing Board Dated April 28, 1975, 25 Pa.Cmwlth. 41, 358 A.2d 874 (1976). The procedures in the Pennsylvania Municipalities Planning Code (MPC)[4] are the exclusive methods for securing review of a zoning decision. 53 P.S. § 11001-A. Section 1002-A of the MPC provides that all appeals to the trial court from a land use decision "shall be filed within 30 days after entry of the decision....." 53 P.S. § 11002-A (emphases added). Here, Appellants filed their appeal on March 8, 2000,[5]before the Board's March 23, 2000 decision and order. See 42 Pa.C.S. § 5572 (stating that the date of service of an order of a government unit shall be the date of mailing if service is by mail). Additionally, Appellants never filed a subsequent appeal within thirty days after the entry of the decision, as required by the MPC. Therefore, Appellants' March 8, 2000 appeal of the Board's decision to the trial court was premature, and the trial court should have quashed that appeal.[6]See Mountain Protection Alliance v. Fayette County Zoning Hearing Board, 757 A.2d 1007 (Pa.Cmwlth.2000) (quashing an appeal as premature where appellants filed their appeal to the court of common pleas before the issuance of a decision and before deemed approval occurred); Ottaviano v. Society Hill Civic Association, 73 Pa.Cmwlth. 307, 457 A.2d 1041 (1983) (holding that the failure to strictly comply with procedural and time requirements will result in the quashing of a zoning appeal).
Accordingly, we vacate the trial court's order and remand this matter to the trial court to quash Appellants' appeal.
ORDER
AND NOW, this 21st day of August, 2001, the order of the Court of Common Pleas of Bucks County, dated October 24, 2000, is hereby vacated, and the matter is remanded in accordance with this opinion.
Jurisdiction relinquished.
NOTES
[1] Prior to June 1999, Planned Parenthood was located at 600 Louis Drive, which is also zoned I Industrial. (Board's Findings of Fact, Nos. 18-19.) At the 600 Louis Drive location, Planned Parenthood had been providing services pursuant to Use 19 of the Ordinance. (Board's Findings of Fact, No. 20.) Planned Parenthood did not offer abortion services at the 600 Louis Drive location. (See Board's Findings of Fact, Nos. 30-31.)
[2] A December 2, 1999 article appeared in the Bucks County Intelligencer newspaper regarding the abortion services that would be offered at the Property. The article attracted the attention of Appellants, who are opposed to abortion, resulting in their request to the Zoning Officer to reconsider his decision. The Zoning Officer determined the permit was properly granted. (Board's Findings of Fact, Nos. 4-6.)
[3] Where, as here, the trial court did not take additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. See Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55 (Pa.Cmwlth.), appeal denied, 561 Pa. 664, 747 A.2d 904 (1999). Further, this court must give great weight and deference to the Board's determination. See id.
[4] Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
[5] Appellants argue that they filed their appeal within thirty days of February 8, 2000, the date of the Board's verbal decision. (Appellant's reply brief at 8.)
[6] Because of our disposition of this issue, we need not address the other procedural issues raised by Planned Parenthood, namely, whether Appellants have standing and whether Appellants' appeal to the Board was timely, or the merits of the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386322/ | 782 A.2d 639 (2001)
Nicholas Sylvester CIACCIA, Appellant,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.
Commonwealth Court of Pennsylvania.
Submitted on Briefs June 15, 2001.
Decided August 20, 2001.
Mark M. Mehalov, Uniontown, for appellant.
*640 Terrance M. Edwards and Timothy P. Wile, Asst. Counsel In-Charge, Harrisburg, for appellee.
Before DOYLE, President Judge, SMITH, J., and FLAHERTY, Senior Judge.
FLAHERTY, Senior Judge.
Nicholas Sylvester Ciaccia (Licensee) appeals from the order of the Court of Common Pleas of Fayette County (trial court) which dismissed his statutory appeal from a one-year suspension of his operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing (Department) in conformity with Section 1532(d) of the Vehicle Code, 75 Pa.C.S. § 1532(d). We affirm.
On July 17, 1999, Licensee was cited under 18 Pa.C.S. § 6308 for purchasing, consuming, possessing or transporting alcohol as a minor. Licensee was convicted by a District Justice on July 26, 1999. This was Licensee's first conviction. On June 28, 2000, eleven months after Licensee's conviction, the District Justice signed the suspension of operating privileges form and forwarded it to the Department.
On August 24, 1999, after Licensee's first conviction but before his license was suspended, he was cited again for violation of the same statute, 18 Pa.C.S. § 6308. Another District Justice convicted Licensee for the second violation on March 1, 2000. This was Licensee's second offense. The suspension of operating privileges form was signed by the District Justice and forwarded to the Department on March 31, 2000.
Section 1532(d) of the Vehicle Code states:
d) Additional suspension.The department shall suspend the operating privilege of any person upon receiving a certified record of the driver's conviction.... for a violation under 18 Pa.C.S. § 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3 (relating to carrying a false identification card). The duration of the suspension shall be as follows:
(1) For a first offense, the department shall impose a suspension for a period of 90 days.
(2) For a second offense, the department shall impose a suspension for a period of one year.
....
75 Pa.C.S. § 1532(d) (emphasis added). The Department received the suspension form for the second conviction before it received the suspension form for the first conviction. Consequently, on April 13, 2000, the Department notified Licensee that his operating privileges would be suspended for 90 days because of the conviction on March 1, 2000 (the second conviction). The Department subsequently received the suspension form for the first conviction and suspended Licensee's operating privileges for one year. Licensee appealed the one-year suspension to the trial court and argued that the suspension for the first conviction was limited to 90 days under the statute. The trial court denied Licensee's appeal and found that the suspension was proper regardless of the order of the underlying convictions.
Licensee raises two issues before us. He first contends that the length of the suspension is dependent on the order of conviction and not when the Department received notice of the conviction. Licensee argues that his second conviction on March 1, 2000 was also his second offense under Section 1532(d). By definition then, his first conviction on July 26, 1999 must *641 be his first offense under Section 1532(d). The Department, therefore, erred because it considered his first conviction as his second offense for purposes of suspending his license for one year.
We disagree with Licensee's analysis. The statute clearly states that before the Department can suspend a person's operating privilege, the Department must first receive a certified record of the driver's conviction. Receipt of this record is a condition precedent to imposition of a suspension under Section 1532(d). It is the order in which the Department receives the conviction that determines whether the violation is deemed a first or subsequent offense.[1] To conclude otherwise would require the Department to investigate whether a licensee has other relevant, outstanding convictions and toll the suspension until the Department has received a certified record of the other conviction in the order the convictions occurred.
Licensee's remaining contention is that the trial court erroneously concluded that the Department met its burden of proof in demonstrating that the eleven month delay in the suspension was not chargeable to the Department. In Grover v. Department of Transportation, Bureau of Driver Licensing, 734 A.2d 941 (Pa.Cmwlth.1999), this Court clarified the burden of providing proof of the delay. We stated:
When a licensee challenges such a suspension by offering the defense of delay, we conclude that DOT must then prove that the delay was caused not by administrative inaction but by some other factor not chargeable to DOT. [Department of Transportation v.] Turner, [155 Pa.Cmwlth. 106, 624 A.2d 759 (1993)]. In the event that DOT meets this burden, the licensee's appeal should then be dismissed. However, if DOT fails to set forth the requisite proof, the burden then returns to the licensee to prove that he has suffered prejudice as a result of the delay. Pokoy [v. Department of Transportation, Bureau of Driver Licensing, 714 A.2d 1162 (Pa.Cmwlth.1998)]; Turner.
Id. at 943 (footnote omitted). We find Licensee's argument to be without merit. First, Licensee stated to the trial court that "the delay is totally immaterial here." N.T. at 10, R.R. at 16a; see also Appellant's Brief at 9 ("Mr. Ciaccia did not raise Department delay as a defense because it was immaterial."). This waiver, however, is not the only basis for our conclusion. Licensee characterizes the delay issue as "the crux of the trial court's denial of Mr. Ciaccia's appeal....". Appellant's Brief at 9. We do not agree. The trial court's reference to the delay was only an attempt to explain why the Department received the convictions in reverse chronological order. Moreover, Licensee had offered no testimony or evidence at the hearing to prove that he was prejudiced by the delay. See Grover, 734 A.2d at 943.
Accordingly, the order of the trial court is affirmed.
ORDER
AND NOW, this 20th day of August, 2001 the order of the Court of Common Pleas of Fayette County which dismissed the statutory appeal of Nicholas Sylvester Ciaccia from a one-year suspension of his operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing in conformity with Section *642 1532(d) of the Vehicle Code, 75 Pa.C.S. § 1532(d) is hereby affirmed.
NOTES
[1] We note that Licensee's convictions do not arise from a single criminal episode. Further, Licensee was convicted on the first violation of 18 Pa.C.S. § 6308 before he committed the second violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386455/ | 488 S.W.2d 565 (1972)
TWIN CITY FIRE INSURANCE COMPANY, Appellant,
v.
Raymond GIBSON, Appellee.
No. 8237.
Court of Civil Appeals of Texas, Amarillo.
November 22, 1972.
Rehearing Denied December 18, 1972.
*569 Gibson, Ochsner, Adkins, Harlan & Hankins (Jewett E. Huff), Amarillo, for appellant.
Gibbins & Spivey (Bob Gibbins), Austin, for appellee.
JOY, Justice.
This is a workmen's compensation case wherein judgment was rendered in favor of plaintiff-appellee Raymond Gibson for total and permanent disability and against defendant-appellant Twin City Fire Insurance Company. Affirmed.
Appellee, at the time the alleged injury occurred which is the basis of this suit, was employed as a journeyman lineman for Southwestern Public Service Company in Plainview, Hale County, Texas. It is stipulated that a claim was received by the Industrial Accident Board (hereinafter referred to as Board) stating, in part, that appellee had sustained an injury to his left shoulder while lifting an electric line and that as a result of the injury, appellee was permanently disabled. The claim before the Board further stated that the injury occurred in Plainview, Hale County, Texas. The claim was acted upon favorably to appellee and appellant appealed from this determination. It is undisputed that the original petition filed by appellee in the district court gave the location and date which appellee sustained an injury as January 16, 1970, in Plainview, Hale County, Texas. However, an amended petition was filed by appellee prior to trial on the merits which alleged the location and date of the injury as being sustained on or about January 16 or 23, 1970 in Castro County, Texas. Otherwise, the basic allegations contained in the claim before the Board and the amended petition of appellee are essentially the same. Appellant filed a plea to the jurisdiction of the court asserting a fatal variance between the claim before the Board and the claim presented in the amended petition of appellee. This plea was overruled and trial was to a jury. Judgment was entered in favor of appellee for total and permanent disability. Appellant has duly perfected appeal from the trial court's judgment assigning 75 points of error, such points being grouped into several categories.
Appellant, in points of error nos. 1 through 8 and 48, 50 and 53, asserts primarily that there is a fatal variance between the appellee's claim before the Board and his amended petition upon which the case went to trial, and that the court erred in failing to submit various special issues pertinent thereto. Appellant contends that the claim before the Board listed the place and time of the injury asserted by appellee to have been in Plainview, Hale County, Texas on January 16, 1970 and the amended petition of appellee lists the injury to have been in Castro County, Texas on or about January 16, or 23, 1970, and therefore the claim presented by this lawsuit was not presented to the Board and the court lacked jurisdiction to hear the case.
One of the initial requirements of our Workmen's Compensation Statute is that a claim for benefit under the act must first be presented to the Board. The Board must have an opportunity to pass upon the claim before it may be presented in court. Appeal from the decision of the Board is trial de novo in the district court with the jurisdictional requirement that the claim before the court has been presented to the Board. Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (1936). Various interpretations of this rule have been expressed in case law. One *570 interpretation of the rule is to allow a claimant to enlarge his claim where injuries are generally described before the Board. It has been stated that the purpose of filing the claim is to give sufficient information so that a proper basis for investigation, hearing and determination of the claim is presented. In the case before us the nature of the injury complained of by appellee is not the basis of appellant's contention that there is a fatal variance. The claim before the Board and the petition before the court reflect the same basic description and nature of injury. The basis of appellant's attack upon the jurisdiction of the court is couched in terms of a variance in the date and location of the injury.
We do not believe the difference in the date and location of the alleged injury is a fatal variance under the facts before us. We take judicial cognizance that Hale and Castro Counties are adjacent to each other. Appellant relies upon the case of Solomon v. Massachusetts Bonding & Insurance Company, 347 S.W.2d 17 (Tex.Civ. App.San Antonio 1961, writ ref'd) for the proposition that a variance in the time and location as stated in the claim before the Board and the petition before the court upon trial is fatal and the court has no jurisdiction. In the Solomon case the variance was two and a half years in time and 100 miles of distance and this discrepancy was held to be too great. We agree that an extensive variance in location and time such as that in the Solomon case would be fatal. However, the Solomon case is distinguishable and not applicable to the facts of the case before us. We do not believe there is an absolute guideline by which a variance is determined to be fatal or permissible. The rule in Texas as re-examined and enunciated in the case of Johnson v. American General Insurance Company, 464 S.W.2d 83 (Tex.Sup.1971) is as follows: "If the Board has had jurisdiction to pass upon the claim, and if there is a fair and substantial identity of the claim ... thereafter sued upon in court, then there is no fatal variance." The critical factor under this test has been referred to as the "identity of the claim."
In the case before us, the only variance between the claim before the Board and the claim presented in the district court was in relation to place and time. The nature and extent of the injury was identical. We do not believe the slight discrepancy in time and location of the alleged injury is fatal under the facts of this case and appellant's points of error nos. 1 through 8 and 48, 50 and 53 are overruled.
Appellant, in points of error nos. 9 through 22, complains of ruling of the trial court by which appellant was restricted from the introduction of certain evidence, to wit:
(1) The sustaining of objections to witness Lloyd Davis' testimony preventing him from testifying as to the details of the "sickness" and "accident" program furnished by Southwestern Public Service.
(2) Preventing appellant from showing numerous instances wherein appellee claimed benefits under the "sickness" program.
(3) In limiting the testimony of Lloyd Davis from giving reasons for appellee's discharge.
(4) In limiting appellant in his cross-examination of appellee in regard to the allegation that appellee had changed his story between the time he presented his claim to the Board and the time of trial.
(5) In preventing appellant's counsel from showing a prior inconsistent position taken by appellee.
(6) In excluding the testimony of Lloyd Davis as to various payroll checks issued by Southwestern Public Service which were under the company's "sickness" program rather than the "accidental" injury program and the *571 exclusion of various time sheets to the same effect.
(7) In excluding the terms and provisions of Southwestern Public Service Company's health and accident policy.
Appellant's points in this area are multifarious, lengthy and repetitious and the foregoing is a general summary of his points; the remaining points being objections to similar alleged restrictive rulings of the trial court of the same general nature. The crux of appellant's points of error in this area centers around the basic contention that appellant was denied, through various evidentiary rulings by the court, an orderly method of impeaching appellee. A brief recitation of the factual circumstances surrounding appellant's contentions in this area will be necessary.
Southwestern Public Service Company makes available to its employees two plans providing benefits for on-the-job and off-the-job injury or sickness. The "A" or accident plan encompasses Workmen's Compensation and is available only for on-the-job injuries. The "S" or sickness plan, covers any sickness or accident which occurs off the job and the employee is reimbursed by the company for his pay up to a certain length of time. The two plans heretofore described are mutually exclusive, i. e., one covers and prescribes benefits only for on-the-job injuries and the other covers and prescribes benefits only for off-the-job sickness or injury. In order for an employee to avail himself of the benefit of the "S" plan, his daily time sheets are coded with the inscription "S". Likewise, he must fill out his time sheets with the notation "A" in order to receive any benefits under the "A" plan.
Appellant argues in its brief that it was prevented from showing that appellee had received benefits under the "S" plan, thus claiming on off-the-job injury which would be totally inconsistent with appellee's claim that he was injured on the job. Appellee contends that any evidence of benefits received by appellee would be a violation of the collateral source rule. It is well settled that the collateral source rule prevents a litigant from showing payments from other sources such as insurance, retirement fund, social security, etc. Kainer v. Walker, 377 S.W.2d 613 (Tex.Sup.1964); Texas General Indemnity Company v. Hamilton, 420 S.W.2d 735 (Tex.Civ.App.San Antonio 1967, writ ref'd n. r. e.); R. E. Dumas Milner Chevrolet Company v. Morphis, 337 S.W.2d 185 (Tex.Civ.App. Fort Worth 1960, writ ref'd n. r. e.); Traders & General Insurance Company v. Reed, 376 S.W.2d 591 (Tex.Civ.App.Corpus Christi 1964, writ ref'd n. r. e.); Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963). Appellant states, however, that in this case the claims made by the appellee are admissible because they constitute prior inconsistent statements. While any benefits received by appellee would be inadmissible under the collateral source rule, the claims he made that constituted prior inconsistent statements would be admissible so long as they did not show on their face the reception of collateral benefits by him. Aetna Casualty & Surety Company v. Scott, 423 S.W.2d 351 (Tex.Civ.App.Houston (14th Dist.) 1968, no writ); Traders & General Insurance Company v. Reed, supra. The record in this case reveals that the claims reported by appellee which are asserted to be prior inconsistent statements, were, in fact, admitted into evidence. In conjunction with these claims, evidence was admitted explaining the difference between the "S" and "A" plans of Southwestern Public Service Company to reveal that they were mutually exclusive and that a claim under the "S" plan would be inconsistent with a claim later presented wherein appellee asserted an on-the-job injury under the "A" plan. After appellee's claims were introduced into evidence appellant's counsel examined appellee as follows:
"Q.... Now, you did file under the John Hancock Plan or the medical plan, as you may be, you filed under the medical plan, as shown by these applications, didn't you, sir?
*572 "A. I filed under them, yes, sir. Those forms, a lot of them that I signed blank...."
* * * * * *
"Q. And you collected under that plan, didn't you, sir?
"A. Yes, sir, I collected for the hospitalization.
"Q. And this about medical expenses, you collected medical bills that were paid something in the area of sixteen or seventeen hundred dollars, didn't you, sir?
"A. That was the total bill, sir, I
"Q. And your recollection is that you collected eighty percent of that?
"A. Yes, sir."
* * * * * *
"Q. In addition to that, under that plan, where you do not get hurt on the job, does the Public Service Company pay your full wages while you are off?
"A. Yes, sir."
In addition, appellee's counsel stipulated that appellee had received some benefits under the sickness plan. Therefore, appellant not only received the benefit of the introduction of appellee's claims into evidence, but also injected into evidence benefits received from a collateral source.
Further, regarding appellant's contentions that he was unable to show the difference between the "A" and "S" plans of Southwestern Public Service Company, the following testimony was adduced:
"Q. Is the policy the same with respect to on-the-job injuries as it is where they are disabled by some other reason, either injury or something else that is not on-the-job?
"A. The policies are not the same.
"Q. Do they overlap? In other words,
"A. No, sir.
"Q. State whether or not the policies are one or the other?
"A. It's one or the other.
"Q. And where you claim disability from an unknown cause or sickness or what not, what is that commonly referred to in the company parlance?
"A. That would come under your hospitalization and sick policy insurance, sickness."
On direct examination by appellee's counsel, appellee stated that he had filled out a claim which was rejected because the hospitalization plan covered only off-the-job injury. Thereafter, appellee testified that a second claim was prepared which specified an off-the-job injury so he could receive the benefits of the hospitalization policy. The record also contains other testimony as to the difference between the two plans.
After explaining that an employee who is claiming an off-the-job injury must record such fact by the notation "S" on his time sheet as opposed to the notation "A" for on-the-job injury, Mr. Davis testified as follows:
"Q. Now, with respect to the time that Mr. Gibson was off work from along about February 10, 1970, up until he returned to work following his operation, will you tell the jury how that was coded?
"A. He was coded `S.'
"Q. Do you have those time sheets, Mr. Davis? Will you get them, please?"
An objection was made and sustained to the last question by appellant's counsel and the time sheets were excluded from the evidence. Such action appellant contends was error. An examination of the time sheets reveals that they would provide no additional *573 evidence by their introduction since the oral testimony of witness Davis encompassed the relevant impeachment matters contained in such time sheets. While the time sheets were admissible for impeachment purposes and it was error to exclude them, the error was harmless in view of the fact that there was oral testimony as to their content.
Appellant complains of the exclusion of the health and accident insurance policy held by Southwestern Public Service Company. Appellant, at the time the policy was offered into evidence, had failed to lay a proper predicate for its introduction and thus the trial court was correct in denying its admission into evidence. Even assuming arguendo that the policy was admissible and would not be an indirect manner of violating the collateral source rule, its relevant provisions were before the jury through oral testimony of the same nature. Appellant's points of error nos. 9 through 22 are overruled.
In points of error 26 through 29 appellant asserts insufficient evidence and against the great weight and preponderance of the evidence contentions as to the findings of the jury on special issue number 18. Special issue number 18 and its accompanying definitions read as follows:
"Do you find from a preponderance of the evidence that Southwestern Public Service Company had notice of such injury within thirty days after its occurrence?
"Notice to or actual knowledge on the part of a foreman or other supervisor, or an agent designated by the employer to receive such notice, is `notice' to the employer.
"Answer `Yes' or `No'.
"ANSWER: Yes."
When dealing with the notice requirements of our Workmen's Compensation Act the following guideline has been announced by our Supreme Court in Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137 (1944), where it is stated at page 140:
"... But, this court has consistently held that it was the intention of the Legislature that the proceedings with reference to giving notice and filing claims should be informal, and great liberality should be indulged in determining the sufficiency and scope of such notices and claims...."
It is well settled that oral notice of an injury to a foreman is sufficient. Texas Indemnity Ins. Co. v. Arant, 171 S.W.2d 915 (Tex.Civ.App.Eastland 1943, writ ref'd w. o. m.); Booth v. Texas Employers' Insurance Ass'n, 132 Tex. 237, 123 S.W.2d 322 (1938); Royal Indemnity Co. v. Jones, 201 S.W.2d 129 (Tex.Civ.App.San Antonio 1947, writ ref'd n. r. e.); Texas General Indemnity Company v. Thomas, 428 S.W.2d 463, 467 (Tex.Civ.App.Tyler 1968, writ ref'd n. r. e.). The record reflects that appellee testified he made a report of the injury to his foreman at approximately 4:30 in the afternoon the same day he was injured. Witness John Hadley admitted on cross-examination by appellee's counsel that it was possible appellee had told him of the injury between January 23 and February 10. We overrule these points.
Appellant in points of error 49, 54 through 68 complains of the submission and answers to Special Issues 19, 20 and 21, such issues inquiring as to whether medical care was required as a result of the injury, and whether appellant failed to furnish such care along with the reasonable cost thereof. Appellant's argument on these points is couched in terms of there being no evidence and insufficient evidence that any request was made to appellant to furnish medical care to appellee and accordingly there is no evidence of any refusal of appellant to furnish such medical care.
It has been repeatedly held that notice of the injury within the time *574 specified by Vernon's Ann.Civ.St. art. 8307, § 4a, is sufficient notice to invoke section 7 of article 8306, V.A.C.S., and thus allow recovery for reasonable medical expenses incurred due to an injury covered by our Workmen's Compensation Statute. In the case of Trinity Universal Insurance Company v. Farley, 408 S.W.2d 776 (Tex.Civ. App.Tyler 1966, no writ) it was asserted that because it was not shown by the insurance carrier the injured workman at any time requested the carrier to furnish him treatment or services, nor that the carrier ever refused to provide such services, that the workman was thereby precluded from recovering expenses for medical services. The court answered this contention stating:
"We do not understand that Section 7 of Article 8306 of V.A.C.S. precludes recovery here under the facts because appellant was not requested to furnish such medical care. We think that the provisions of Section 7 and the decision construing it clearly shows that the intent of the law is that the carrier has the responsibility of furnishing all reasonable and necessary medical care for any compensable injury under the Texas Workmen's Compensation law after proper notice thereof has been given."
Likewise, in the case of Texas Employers' Insurance Association v. Steadman, 415 S.W.2d 211 (Tex.Civ.App.Amarillo 1967, writ ref'd n. r. e.) this court held a request for medical services was not necessary where notice had been previously given. Also see: Travelers Insurance Company v. Hernandez, 276 F.2d 267 (5th Cir. 1960); United States Fidelity & Guaranty Company v. Camp, 367 S.W.2d 952 (Tex.Civ. App.Houston 1963, writ ref'd n. r. e.). In the case before us, notice was given of the injury as heretofore discussed. The record reflects that testimony was adduced concerning the medical bills along with the introduction of such bills. Further, there is evidence in the record that appellee requested that the medical bills be paid and that appellant refused to pay them. Appellant's points of error 49, and 54 through 68 are overruled.
Appellant, in point of error 23, complains of the admission of testimony by Mrs. Gibson to the effect that appellee told Tom Davis, a fellow employee, that he had been injured on the job. Appellee asserts this testimony was admissible as a prior consistent statement for the reason that appellant was contending appellee's claim was a recent fabrication. While testimony by persons to whom appellant had made statements regarding any injury he sustained may have been admissible under the recent fabrication exception, the testimony admitted into evidence in this case was from a third person, Mrs. Gibson, and not one of the parties to whom the statements were made. Therefore, the testimony of Mrs. Gibson as to statements made by appellee to another person would be hearsay and inadmissible.
Appellant contends the testimony of Mrs. Gibson, being hearsay, was prejudicial in that it caused the jury to believe Tom Davis was an agent to whom notice could be given within the definition of notice in the court's charge. We do not agree. There was no testimony that Tom Davis or any other fellow employee of appellee was an agent to receive notice for the insurance company or subscriber. The testimony of Mrs. Gibson consisted of statements only to the effect that appellee had stated to other persons that he had been injured. While the method of adducing this testimony was improper, we do not believe the substance of it was reversible error. Rule 434, Texas Rules of Civil Procedure.
Appellant objects to the admission of evidence concerning the failure of Tom Davis and Glen Moody to appear for trial in points of error 24 and 25. The substance of the testimony by Mrs. Gibson in this area was that Tom Davis and Glen Moody had been scheduled as witnesses for appellee, that Davis had gone on vacation and that Moody would not be able to appear. Appellant objected to the testimony *575 of Mrs. Gibson concerning the absence of Davis but made no objection to essentially the same testimony concerning Moody. Even assuming arguendo that part or all of the testimony in this regard was improper, the testimony concerning Moody was admitted without objection. Such testimony, as heretofore stated, was essentially of the same substance as that elicited concerning Davis; thus, any objection to this type of evidence would be waived and in any event would be harmless error. Appellant's points of error 24 and 25 are overruled.
Appellant in point of error 75 complains of the submission of special issue number 18 and its accompanying definition as heretofore set out, stating that it is global and constitutes a comment on the weight of the evidence. Although appellant has not specifically briefed this point of error, we have examined special issue 18 and its definition and find no merit in appellant's point. The issue and definition submitted by the trial court have been repeatedly approved in Workmen's Compensation cases and is identical to the suggested special issue in this area found in Texas Pattern Jury Charges, Vol. 2, Sec. 24.01, page 101. We believe the issue submitted, sufficiently limited by the accompanying definition, was proper in this case.
Appellant, in points of error 45 through 47, complains of the trial court's action in overruling objections to the testimony of witnesses Joe Steuard, Grandville Staggs and Albert Lytle concerning the reputation of appellee for truth and veracity. The rule in Texas regarding the admissibility of evidence of reputation for truth and veracity is stated in Grant v. Pendley, 39 S.W.2d 596 (Tex.Comm'n App. 1931) as follows:
"We therefore announce the rule to be that supporting evidence of good character, either for truth and veracity or honesty and fair dealing, should only be admitted in those cases where the nature of the action directly involves the character of a party, where a witness has been impeached, or where a party by his pleading or evidence charges his adversary with the commission of a crime involving moral turpitude."
See also: Waggoman v. Fort Worth Well Machinery & Supply Co., 124 Tex. 325, 76 S.W.2d 1005 (1934). It has been held that contradictory evidence is not sufficient; the evidence must be in the nature of impeachment. Livestock Feeder Company v. Few, 397 S.W.2d 297 (Tex.Civ.App. Waco 1965, writ ref'd n. r. e.).
The record in this case contains impeachment testimony adduced by cross-examination of appellant's counsel prior to any testimony elicited as to appellee's reputation for truth and veracity. Most of the impeachment testimony was through the introduction of various statements made in depositions and in written documents. Appellant used these instruments, after a proper predicate was laid, to impeach appellee through prior inconsistent statements. See: 1 McCormick & Ray, Texas Evidence, §§ 692 and 722 (2d ed. 1956). Actually, the only evidence adduced concerning appellee's reputation for truth and veracity was from witness Steuard who testified: "Well, in any dealings or any connection I have had with him, he surely has been in a truthful or straightforward or whatever you call it." Witnesses Staggs and Lytle did not state whether they considered appellee's reputation for truth and veracity to be good or bad. Even assuming arguendo that there was no impeachment testimony in the record as to appellee, we believe the testimony of witnesses Steuard, Staggs and Lytle would be harmless. Rule 434, T.R.C.P.; Livestock Feeder Company v. Few, supra. Appellant's points of error 45 through 47 are overruled.
By points of error 69 through 74 appellant asserts that the answers to special issues 1 through 4, 6 and 8 are based upon the insufficient evidence and are against the great weight and preponderance of the *576 evidence. Having reviewed the entire record we cannot say the answers to the above noted issues are based upon insufficient evidence or are so against the great weight and preponderance of the evidence so as to be manifestly unjust and wrong. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The evidence in regard to these points of error as well as the contentions of appellant in regard thereto have been discussed previously. While the issues were vigorously contested, the jury may believe all, part or none of the testimony of the witnesses.
Appellant, in points of error 30 through 44, seeks reversal of the trial court's judgment on the basis of improper jury argument by appellee's counsel. Appellant's points 30 and 31 consist of complaints that appellee's counsel advised the jury of the effect of their answers. Specifically appellant complains of several statements made in conjunction with these points of error, the first being to the following argument:
"... They say they didn't get notice within thirty days, which you are required to have to give under law, or you are out.
"MR. HARLAN: May it please the Court, we object and ask the Court to instruct the jury not to consider that argument.
"THE COURT: Yes, sir, I'll sustain that objection. The jury will not consider that portion of Mr. Gibbins' argument.
"MR. GIBBINS: All right. They pled it, or said it. They didn't get notice in thirty days. They did that. They said that. All right."
There was no objection to the last statement made.
Under the same points of error appellant complains of the following argument:
"MR. GIBBINS: Then you come on over here and it asks you, has Raymond Gibson sustained or will he sustain any partial incapacity? And, you know, that's one of the defenses in the case, that
"MR. HARLAN: May it please the Court, we object to this; informing the jury of the effect of the answer, and we object to it. It's improper argument.
"THE COURT: Please confine your argument to the issue, Mr. Gibbins.
"MR. GIBBINS: All right."
At this point no request was made by appellant's counsel for a specific ruling on the objection or a request that the jury be instructed not to consider the statements made by appellee's counsel. Mr. Gibbins then continued:
"Well, at any rate, the judge asks you whether or not Raymond has sustained or will sustain any partial incapacity, and we say that No. 8 should be answered no. No. 8 should be answered no, for the reason that His Honor
"MR. HARLAN: May it please the Court, we object to blackboard argument as improper argument, and we object to writing answers on the blackboard.
"THE COURT: I'll overrule that objection.
"MR. HARLAN: Note our exception. May it go straight through to any other?
"THE COURT: Yes.
"MR. GIBBINS: Stay with me, folks. That's all I'm asking. No. 8 should be answered no, because the judge tells you that a man, cannot be totally disabled and partially disabled at the same time."
While appellant complains that the foregoing statements of appellee informed the jury of the effect of their answers, through the use of the terms "we say," and "Stay *577 with me, folks" no objection was made to such argument. As shown above the only objection made at this point was to the use of a blackboard by appellee's counsel, such matter being a separate point of error to be discussed later.
While it is settled that it is improper for counsel to inform the jury of the effects of their answers, we do not believe reversible error was committed by the foregoing statements of appellee's counsel. It has been held that references to certain issues as "defensive issues" and as "scatterblast issues of the defendant" were not reversible error. Old Colony Insurance Company v. Messer, 328 S.W.2d 335 (Tex.Civ.App.Beaumont 1959, writ ref'd n. r. e.). Use of the terms "Otherwise school is out" analogous to the "or you are out" statement in the present case, has been held not reversible error. Texas & New Orleans Railroad Company v. Arnold, 381 S.W.2d 388 (Tex.Civ.App.Beaumont 1964, appeal dismissed at 388 S.W.2d 181; Tex.Sup.1965).
Further, it should be expressly noted that objections were made and sustained to the foregoing argument of appellee. The presumption is that the instruction to disregard the argument was followed by the jury in its deliberations. Texas Employers' Insurance Association v. Rubush, 337 S.W.2d 501 (Tex.Civ.App.Fort Worth 1960, writ ref'd n. r. e.). Therefore, we do not believe the foregoing statements by appellee's counsel, standing alone, constitute reversible error and accordingly overrule appellant's points of error 30 through 44.
Appellant contends in point of error number 32 that the trial court erred in overruling its motion for mistrial based upon arguments to the jury wherein appellee's counsel made an appeal to the jury to place themselves in the position of the appellee. Appellant's point apparently refers to the following portion of appellee's argument:
"... Just remember Danny Frye's testimony and that other man, Max, that worked there thirty-three years, their own witnesses, and ask yourself if he was an honest man and a hardworking man. You bet. They pulled out some stuff and they went way back thirty-three years of personnel files and proved that he had a cuss fight or a fight or something like that, and they tried to throw all the mud that they could get together out of those personnel files. I'm just proud that they don't have my Army files or yours or your
"MR. HARLAN: May it please the Court, we object to this argument. It is improper.
"MR. GIBBINS: Why?
"MR. HARLAN: It is asking the jury to place themselves in the position of the Plaintiff. Inflammatory and it's wrongfully prejudicial.
"THE COURT: I think it refers to matters not in evidence. I will sustain it."
Appellant presents no discussion or authorities in reference to this particular point of error. While the brief reference in regard to personnel files may be improper we do not believe it was of such a nature so as to constitute reversible error in and of itself. Point of error number 32 is overruled.
Appellant complains in point of error number 37 of the trial court's action in permitting appellee's counsel to write the answers to various special issues on a blackboard during the argument to the jury. In Texas Employers' Insurance Association v. Cruz, 280 S.W.2d 388 (Tex. Civ.App.San Antonio 1955, writ ref'd n. r. e.) wherein the court stated:
"... Therefore, we see no reason why counsel for appellee could not write upon a blackboard the number of the issue and opposite thereto the answer he desired, so that the jury might learn *578 these answers not only from listening to what the attorney had to say but also from seeing them written upon a blackboard."
The court also stated that even if it was error to write the answers to the special issues on a blackboard it would not be reversible error. See also: Magnolia Petroleum Company v. Herman, 295 S.W.2d 430 (Tex.Civ.App.Austin 1956, writ ref'd n. r. e.). We believe the reasoning and holding in the Cruz case controls the disposition of this particular contention raised by appellant.
Appellant contends in points of error 39 through 44 that the jurors took notes on the answers suggested by appellee's counsel during the jury argument and further such jurors took the notes into the jury room during their deliberations and that such conduct was error. It should be noted that appellant states in its brief concerning this matter that no claim of jury misconduct is made.
Appellant contends the trial court should have instructed the jurors to surrender any notes taken by them before they retired to the jury room for their deliberations pursuant to such request of appellant. This contention is based upon a motion for mistrial in which the following grounds were stated:
"II
"If the foregoing motion is overruled and without waiving it, the Defendant moves the Court to inquire of the members of the jury whether either of them have written down the answers suggested by counsel for either party, and if so, to direct the juror or jurors who have said answers to surrender the notes to the Court.
"III
"If the foregoing motions are overruled and without waiving either of them, the Defendants moves the Court to inquire of the jury whether the jurors have any notes taken during the trial, and if so, to surrender said notes to the Court at this time."
At the time the foregoing motion was presented to the court, the record is void of any evidence that any juror had taken notes during the trial. No evidence was presented concerning this matter to the trial judge. The taking of notes during the trial of a cause by a juror and the subsequent use of such notes should be attacked by a motion for mistrial based upon jury misconduct. No motion and accompanying evidence was tendered in this case. Further, a litigant in order to avail himself of the benefit of such motion must show by competent proof that such conduct on the part of the jury was prejudicial and harmful. See: 3 McDonald, Texas Civil Practice, §§ 14:15 and 14:16.1.
Appellant contends in points of error numbers 35 and 38 that the trial court erred in overruling appellant's objection to argument wherein appellee's counsel advised the jury that appellee's injury of 1954 was not a compensable injury for the reason that appellee did not file a workmen's compensation claim.
The following argument was had by counsel for appellee:
"MR. GIBBINS: ... And Raymond said that he never did file, a Workmen's Compensation claim. And never did receive a penny, and he went to a chiropractor
"MR. HARLAN: Now, we object to `never did receive a penny. (sic) There isn't any evidence. And ask the Court to instruct the jury not to consider that.
"THE COURT: I'll sustain that objection to that portion of the argument and instruct the jury not to consider that portion for any purpose. Please proceed.
"MR. GIBBINS: Well, he never did file a Workmen's Compensation claim, and he did not receive any Workmen's Compensation.
*579 "MR. HARLAN: Your Honor, I
"THE COURT: Same ruling and I will instruct the jury not to consider that for any purpose."
And later the following argument was had:
"MR. GIBBINS: ... We submit that it was not a compensable injury.... Now, why do I say that? Because Raymond didn't even file a Workmen's Compensation claim, and that is undisputed; that he didn't get any compensation or file a compensation claim.
"MR. HARLAN: May it please the Court, that's the fourth time he repeated this, that he didn't get any compensation. And, Your Honor, that is something the Court hasI can't go outside the record, but there iswell, that's improper, and it is outside the record, and it is in violation of the Court's instructions, and I just don't think that that can be cured by an instruction, this repeatedlyand I am going to have some other motions to make in connection with it, Your Honor.
"THE COURT: I think this portion of the argument was that no Workmen's Compensation claim had been filed.
"MR. GIBBINS: Yes, sir.
"THE COURT: I'll overrule your objection.
"MR. HARLAN: Note our exception."
There is evidence in the record that appellee did not file a Workmen's Compensation claim in relation to his injury of 1954. No objection was raised as to this line of testimony. An attorney may draw from facts in evidence all logical inferences that are reasonable, fair or legitimate in his argument to the jury. J. D. Wright & Son Truck Line v. Chandler, 231 S.W.2d 786 (Tex.Civ.App.Galveston 1950, writ ref'd n. r. e.). We find no merit in points 35 and 38.
By point of error 36 appellant contends improper argument wherein appellee's counsel purportedly cast unjust criticism on appellant's counsel. Specifically, appellant complains of the following argument:
"And then another thing. They talked about not being honest. Mr. Harland in his pleadings right here, under oath, Defendant denies under oath that the claim asserted by Plaintiff was ever filed, and alternatively denies it was filed within six months prescribed by statute, and further denies the existence of good cause. All right. And that is sworn to by Mr. Hoe (sic) Harland right here, attorney for this insurance company. Ladies and gentlemen, then he turns right around and stipulates with us in court that this was filed on June 26, 1970. Now, I ask you, from January 16 or January 23 down to June 26, '70, that's five months. Why did they give an oath that he didn't file one within six months? People are human. That's all I am saying".
In regard to this argument appellant cites as authority for reversal the case of Texas Employers' Insurance Association v. Butler, 287 S.W.2d 198 (Tex.Civ.App.Fort Worth 1956, writ ref'd n. r. e.) wherein the following statements were made during jury arguments:
"`... Now in talking about people not always sticking to the truthwhere is that request for admission?' ... `You heard George Willingham say I am working for May & Taylor out there, I am the foreman. This man told me about being injured, he said on the pipe rack three days after it happened and I took him up to Dr. Ogden and I made a report to the Texas Employers Insurance Association within ten days. But on February 10, 1955 Mr. Sherrod (defendant's attorney) under oath, we asked him this question to admit or deny that plaintiff's employer had actual knowledge of said accidental injury within 30 days *580 from the 6th of September, 1954. Mr. Sherrod is a lawyer here. In response to your requests for admissions in this cause dated February 3, 1955, that the Defendant Texas Employers says that request No. 5 that they had actual knowledge of the injury is denied.' ... `Gentlemen I guess we all have some human failings. Apparently Mr. Sherrod has some along with the rest of us.'"
Mr. Sherrod then objected to the statements made by opposing counsel and the court sustained the objection but denied Mr. Sherrod's request that the jury be instructed not to consider it.
Appellant contends appellee's counsel knew the denial of the filing of a claim before the Board was directed toward the proposition that the accident alleged by appellee in the district court had never been before the Board. Therefore, appellant contends appellee's counsel misstated the effect of appellant's sworn pleading thus leaving the impression before the jury that appellant's counsel had sworn to an untruth. The statements made in the Butler case are closely analogous to the statements present in the case before us. The Butler case, however, was decided upon the basis of three areas of error. The court, in the Butler case, did not expressly hold that the objectionable statements to be of the "incurable" type. The court stated, "(W)e think the trial court erred in overruling appellant's request to instruct the jury to disregard the argument of which complaint is made," thus implying that had the instruction been given, any reversible error would have been cured. In the case before us no objection was made to the argument of appellee's counsel and, of course, no request for a jury instruction. By its failure to timely object and request an instruction appellant has waived complaint to the argument.
Appellant's point of error number 34 deals with the following statements made by appellee's counsel:
"... I just kind ofI guess it's the way of us country people, we kind of resent a little bit influence, and I don't challenge these companies for being large. Heck, America iswe have helped make these companies large, but don't forget it was the little man that helped make them large. And never should America reach the stage where the large company so controls the individualand I'm not talking about civil rights or constitutional rights; I'm talking
"MR. HARLAN: I object to this, may it please the Court, emphasizing the size of the company, as outside the record. It is inflammatory and wrongfully prejudicial.
"MR. SPIVEY: Your Honor, I was just givingI just got through telling the jury that in my opinionand I don't criticize the company for the size.
"THE COURT: Yes, sir. However, I believe I will sustain the objection and instruct the jury not to consider that portion of the argument for any purpose.
"MR. HARLAN: We reserve the exception to the further remark of counsel before the Court's ruling, that we
"THE COURT: I have sustained
"MR. HARLAN: Thank you.
"THE COURT:and instructed the jury not to consider it for any purpose.
"MR. HARLAN: Thank you. I appreciate that. But he made some more argument there before. Will you instruct the jury on that? I think you have covered it on all of his argument, Your Honor.
"THE COURT: Yes, sir. The jury will not consider any remarks of counsel for any purpose in this case."
Appellant contends the foregoing statements consist of an attempt to contrast between the meager resources of the plaintiff and the large corporate defendants. It *581 is improper to contrast the wealth of the parties to a suit in an effort to prejudice the jury against one of such parties. Appellant cites as authority for reversal the case of Texas Employers' Insurance Association v. Hacker, 448 S.W.2d 234 (Tex. Civ.App.Fort Worth 1969, writ ref'd n. r. e.) in which the following statement was held to be reversible error: "I apologize to the Jury also for becoming a little steamed up. When I get a little steamed up I see an all powerful insurance company kick a workman down. Never paid him one penny compensation." The court in the Hacker case stated:
"Argument No. 4 saying that when plaintiff's counsel gets a little steamed up he sees an all powerful insurance company kick a workman down was in our opinion error. We believe that no instruction the trial court might have given would have the effect of withdrawing the damage done by such statement in this case. It should not have been made."
The statements made by appellee's counsel, while not as strong as those made in the Hacker case, were improper. However, we do not believe they had reached the stage of being "incurable" and in view of the instructions given by the court, hold that such statements did not constitute reversible error.
In point of error number 33 appellant states that the trial court erred in overruling appellant's motion for mistrial based upon improper argument wherein appellee's counsel made direct appeals to the jury to return a verdict in favor of appellee.
Appellant, in its brief, argues that the following statements were error:
"... And that ought to be yes, because it says right here, any notice to an agent is notice to the company. Stay with us on that one, folks."
At this point no objection was made to these statements of appellee's counsel by appellant. Further, appellant complains of the following:
"... This is the last time I can ever talk to you on behalf of Raymond and his family, and I am asking youand I've no pride, no vain, no nothing when it comes to representing a client, and I am asking you to bring in a verdict for our client. We are right in this case.
"Thank you.
"MR. HARLAN: May it please the Court, I object to the argument, asking an appeal for a verdict for a particular person; violation of the Court's instructions.
"THE COURT: I'll sustain that objection to the last portion of the argument and instruct the jury not to consider it.
"MR. HARLAN: And we will reserve motion at the proper time on that, Your Honor.
"THE COURT: All right."
And later the following discourse was had:
"... But your verdict will come in here in a few minutes or few hours or tomorrow, and your verdict is the opportunity to right the wrong. It is the opportunity to assess the responsibility here where the responsibility goes."
No objection was asserted by appellant's counsel to these statements at the time they were made.
In regard to the foregoing statements by appellee's counsel we do not believe it was improper for appellee's counsel to state to the jury "We are right in this case." While it is error to ask the jury to answer issues in a particular manner so that a party might win, the asking of the jury to answer special issues a certain way under the evidence is not improper. Brown v. Poff, 387 S.W.2d 101 (Tex. Civ.App.El Paso 1965, writ ref'd n. r. e. at Tex., 392 S.W.2d 113); Texas Employers' Insurance Association v. Mendenhall, 334 S.W.2d 850 (Tex.Civ.App.Fort Worth 1960, writ ref'd n. r. e.); Burrow v. *582 Davis, 226 S.W.2d 199 (Tex.Civ.App. Amarillo 1949, writ ref'd n. r. e.). In the case before us the statement, "I am asking you to bring in a verdict for our client" was made in appellee's argument after a discussion of the issues prefaced with the term under the evidence. Further, if such statement or statements be error it is noted the trial court sustained an objection to such statements and instructed the jury to disregard them. Assuming arguendo such statements were in error, they were not of an incurable nature and the court properly instructed the jury.
Appellant's contention that the last quoted portion of appellee's argument above was error has been waived as no timely objection was registered by appellant. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.Sup.1968); State v. Brunson, 461 S.W.2d 681 (Tex.Civ.App. Corpus Christi 1970, writ ref'd n. r. e.); Williams v. General Motors Acceptance Corporation, 428 S.W.2d 441 (Tex.Civ.App. San Antonio 1968, no writ); Consolidated Underwriters v. Whittaker, 413 S.W.2d 709 (Tex.Civ.App.Tyler 1967, no writ); City of Lampasas v. Roberts, 398 S.W.2d 612 (Tex.Civ.App.Austin 1966, writ ref'd n. r. e.); and Turner v. Turner, 385 S.W.2d 230 (Tex.Sup.1964).
The rule stated by our Supreme Court in Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953) in regard to whether or not a judgment will be reversed because of the argument of counsel is as follows: "Before a judgment is reversed because of argument of counsel two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case." The Aultman case was decided after the adoption of Rule 434 and noted that cases decided prior to the adoption of such rule would have little value as precedents. Whether the impropriety of the argument presented probably influenced the jury unfavorably to a party is to be determined by the appellate court's judgment in light of the record as a whole. Southwestern Greyhound Lines, Inc. v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951); Texas Employers' Insurance Association v. Butler, supra. In reviewing the entire record, quite voluminous in this instance, we are unable to hold that the errors complained of, taken cumulatively, caused the rendition of an improper verdict.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386475/ | 279 F. Supp. 2d 59 (2003)
AMERICAN FEDERATION OF STATE, COUNTY, & MUNICIPAL EMPLOYEES, COUNCIL 93 LOCAL 1370, AFL-CIO, Plaintiff,
v.
OLYMPUS SPECIALTY & REHABILITATION HOSPITAL and Commonwealth Community Holdings, LLC, Defendants.
No. CIV.A. 02-30140-KPN.
United States District Court, D. Massachusetts.
September 3, 2003.
*60 Terence P. McCourt, Hanify & King, Professional Corporation, Boston, MA, for Olympus Specialty & Rehabilitation Hospital, Defendant.
Jay M. Presser, Skoler, Abbott & Presser, Springfield, MA, for Commonwealth Community Holdings, LLC, Defendant.
Angela M. Wessels, AFSCME Council 93, Associate General Counsel, Boston, MA, for American Federation of State, County & Municipal Employees, Council 93, Local 1370, AFL-CIO, Plaintiff.
MEMORANDUM AND ORDER WITH REGARD TO CROSS MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 19 and 23)
NEIMAN, United States Magistrate Judge.
In this action, the American Federation of State, County and Municipal Employees, Council 93, Local 1370, AFL-CIO ("Plaintiff" or "the union"), seeks to compel arbitration of the grievances of three terminated hospital employees pursuant to section 301 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 185 ("section 301"). Currently at issue are cross motions for summary judgment filed by the union and Commonwealth Community Holdings, LLC ("Commonwealth" or "Defendant"), the hospital's present owner and the sole remaining defendant.[1]
The parties have consented to this court's jurisdiction pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b). For the following reasons, the court will allow Defendant's motion for summary judgment and deny Plaintiff's cross motion.
I. BACKGROUND
This dispute originated in the waning months of 2000 when Olympus, the hospital's then owner, fired three employees *61 covered by a four-year collective bargaining agreement ("CBA") entered into between Olympus and the union in September of 2000. The union demurred claiming that the terminations violated the CBA's "just cause" provisionand, in January of 2001, filed separate demands for arbitration. In March of 2001, the American Arbitration Association scheduled hearings for three separate dates in June and July.
In the interim, on March 14, 2001, Olympus and Commonwealth entered into a Purchase and Sales Agreement. In that contract, Commonwealth agreed to buy the hospital's assets, effective April 7, 2001, and Olympus agreed to relieve Commonwealth of any liability with respect to employing Olympus's existing workforce. Nonetheless, Commonwealth informed the union in a letter dated March 16, 2001, that it intended "to honor the labor agreement" then existing between the union and Olympus, i.e., the CBA entered into the previous September.
On March 31, 2001, Olympus notified all of the hospital's employees that they would be terminated as of April 7th. Soon thereafter, Commonwealth offered jobs to a majority of Olympus's workforce. It did not, however, extend offers to the three individuals whose terminations were the subject of the pending arbitration hearings.
On May 14, 2001, counsel for Olympus withdrew his appearance in the three arbitration cases and the hearings were continued. Since that time, Commonwealth has disclaimed any obligation to arbitrate the three grievances. Most notably, on September 26, 2001, Commonwealth sent the union a letter reaffirming that fact:
The terms of the purchase indicated specifically to Olympus ... that Commonwealth ... was not accepting any prior responsibility for any prior arbitration cases dealing with unresolved disputes that arose prior to the date of sale. In addition, you were notified ... prior to the date of sale that we were not accepting responsibility for those pending cases with Olympus ..., nor would we be bound by any result of those pending arbitrations because they preceded the arrival of Commonwealth ....
(Document No. 25 (hereinafter "Marsh Affidavit"), Exhibit 4.)
As indicated (see n. 1, supra), the union, on September 3, 2002, filed the instant complaint to compel arbitration against both Olympus and Commonwealth, but thereafter voluntarily dismissed its claims against Olympus. In due course, the union and Commonwealth filed cross motions for summary judgment. The court heard oral argument on July 25, 2003.
II. STANDARD OF REVIEW
When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the nonmoving party. Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). For this purpose, an issue is "genuine" when the evidence is such that a reasonable fact-finder could resolve the point in favor of the nonmoving party, and a fact is "material" when it might affect the outcome of the suit under the applicable law. Morris v. Gov't. Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). The nonmoving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
*62 The mere fact that both parties move for summary judgment does not change the foregoing analysis. United Paperworkers Intern. Union Local 14, AFL-CIO-CLC v. Intern. Paper Co., 64 F.3d 28, 32 n. 2 (1st Cir.1995). Barring special circumstances, a court must consider each motion separately, drawing inferences against each movant in turn. E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 608 n. 8 (1st Cir.1995).
III. DISCUSSION
Both parties agree that the cross motions for summary judgment raise two fundamental questions: (1) whether, by committing to "honor" the CBA, Commonwealth agreed to arbitrate the three grievances then pending; and (2) whether the union failed to file the present action within the applicable statute of limitations. In the end, the court concludes that, even if the answer to the first question is yes, the union's late filing of its suit, nearly a year after Commonwealth took an unequivocal position that it would not arbitrate the grievances, requires dismissal.
A.
The union argues that it is entitled to summary judgment because, once Commonwealth committed to "honor" the CBA, it was required to arbitrate the three grievances. In essence, the union asks the court to interpret Commonwealth's commitment broadly such that the arbitrations pending between the union and Olympus survive as Commonwealth's cases. "[T]he unquestioned continuation of [the] entire [labor] contract," the union contends, "is laden with an implication ... that acknowledgment of the contract imports recognition of any then-pending grievances." (Document No. 20 (hereinafter "Plaintiff's Summary Judgment Brief") at 3.)
For its part, Commonwealth argues not only that the union's motion should be denied, but that it is entitled to summary judgment because it never agreed to arbitrate the grievances. When it agreed to "honor" the CBA, Commonwealth maintains, it did so prospectively and only with respect to those employees it hired, not to employees previously terminated by Olympus. In fact, Commonwealth notes, it told the union at a pre-sale meeting that it would not accept responsibility for any of Olympus's liabilities.
The court believes that Commonwealth has the better argument with regard to the union's motion for summary judgment. It must be remembered that the employees whose grievances were at issue were discharged by Olympus well before the April 7, 2001 effective date of Commonwealth's purchase of the hospital's assets. Moreover, the three employees were not part of Olympus's later mass termination, nor were they ever hired by Commonwealth. Thus, despite the sale, the three grievances, at best, continued to be arbitrable between the union and Olympus, not Commonwealth. In fact, that is precisely what the union attempted to do when it initially named Olympus as one of the defendants in the instant action.
Still, there remain enough genuine issues of material fact regarding the import of Commonwealth's agreement to honor the CBA so as to also deny Commonwealth's motion for summary judgment on this basis. For example, a jury might reasonably conclude, based on the present record, that Commonwealth's agreement to "honor" the CBA meant that it would "honor" as well Olympus's initial intention to arbitrate the three pre-sale terminations. See Webster's Third New International Dictionary 1087 (unabridged ed.1967) (defining "honor," inter alia, as "to live up to or fulfill: carry out"). It is *63 also worth noting that the union was not a party to the Purchase and Sales Agreement between Olympus and Commonwealth and, hence, did not commit itself to Commonwealth's limited liability established therein.
At bottom, therefore, the court believes that neither party is entitled to summary judgment on the first question. Accordingly, the court proceeds to the second question, namely, whether Commonwealth should be granted summary judgment because the union failed to file suit within the applicable limitations period.
B.
Commonwealth argues that the six month statute of limitations found in section 10(b) of the NLRA, 29 U.S.C. § 160(b) (hereinafter "section 10(b)"), applies and that the union failed to file a timely complaint after it well understoodno later than September 26, 2001that Commonwealth had adequately indicated that it would not arbitrate the grievances. See Communications Workers of Am., AFLCIO v. Western Elec. Co., 860 F.2d 1137, 1144 (1st Cir.1988) ("The six-month statute of limitations begins to run at th[e] moment" "when the employer takes an unequivocal position that it will not arbitrate.") (citations and internal quotation marks omitted). For its part, the union does not contest that Commonwealth's September 26, 2001 letter provided "unequivocal notice" or that the instant action accrued on that date. The union contends, however, that the action is governed by Massachusetts' six year statute of limitations for breach of contract. See Mass. Gen. L. ch. 260, § 2. For the reasons which follow, the court agrees with Commonwealth that section 10(b) applies and, thus, that the union's complaintfiled over six months after Commonwealth indicated that it would not arbitrateis untimely.
Both parties recognize that when section 301 is implicated, as it is here, a court must "borrow the most suitable statute or other rule of timeliness from some other source." DelCostello v. Intern. Bhd. of Teamsters, 462 U.S. 151, 158, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) (internal quotation marks omitted). When borrowing, a federal court ordinarily applies the most closely analogous state law statute of limitations. See Communications Workers, 860 F.2d at 1139. However, "when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking," a federal court should not hesitate "to turn away from state law." DelCostello, 462 U.S. at 172, 103 S. Ct. 2281.
In DelCostello, the Supreme Court applied section 10(b)'s six month statute of limitations to an employee's "hybrid" section 301 and fair representation action because it was "not a straightforward breach-of-contract suit." Id. at 165, 103 S. Ct. 2281. The Court viewed the hybrid situation as "a direct challenge to the private settlement of disputes under the collective bargaining agreement" and determined that the six month limitations period would "accommodate a balance of interests" at stake. Id. at 165, 169, 103 S. Ct. 2281 (citations and internal quotation marks omitted). A lengthier statute of limitations, the Court explained, "would preclude the relatively rapid final resolution of labor disputes favored by federal law." Id. at 168, 103 S. Ct. 2281.
In Communications Workers, the First Circuit extended the DelCostello analysis to a straightforward section 301 action to compel arbitration. See Communications Workers, 860 F.2d at 1145. The First Circuit determined that, "[i]nasmuch as *64 efficient procedures for arbitration are `central to the smooth operation of the labor/management process,' efficient procedures to ensure fulfillment of agreements to arbitrate are likewise of the essence." Id. at 1141 (quoting McCreedy v. Local Union No. 971, UAW, 809 F.2d 1232, 1238 (6th Cir.1987)). The court reasoned that "[t]he objectives of federal labor policy require not only that arbitration be invoked when and as contracted for-but that it be invoked swiftly as well." Id. Given those objectives, the court held that section 10(b)'s six month limitations period applies to a section 301 action to compel arbitration. Id. at 1145.
Perhaps realizing the inevitable application of DelCostello and Communications Workers to the case at bar, the union urges the court to find that its action is "purely" a breach of contract suit because it merely seeks to have Commonwealth "honor" the CBA. Unfortunately for the union, its argument is not persuasive. Even if Commonwealth is found to have agreed to arbitrate pre-existing grievances, its subsequent refusal cannot be interpreted as a breach of contract in the ordinary sense. "Arbitration clauses are ... sui generis and cannot, as a matter of federal law, be viewed as equivalent to more ordinary contractual provisions for limitation purposes." Id. at 1141 (citing Wilson v. Garcia, 471 U.S. 261, 268, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985)). In other words, this is not a "breach of contract" action; rather, Commonwealth's unequivocal refusal to arbitrate commenced the accrual period within which the union had to file an action to compel. See generally International Ass'n of Machinists & Aerospace Workers v. Caribe Gen. Elec. Prods., Inc., 718 F. Supp. 115 (D.P.R.1989).
Perhaps more to the point, the union's self-titled "Complaint to Compel Arbitration" belies its belated attempt to define this action as one for breach of contract. As the union is no doubt aware, in a section 301 action seeking to compel arbitration "the complex, delicately-balanced system of industrial relations comes under siege; the stability of the process is placed at risk; and the need for some efficacious restorative is correspondingly great." Communications Workers, 860 F.2d at 1141. Hence, a six month, not a six year, statute of limitations was deemed appropriate. Six years, the court explained in Communications Workers, "is simply too long to allow industrial disputes to fester." Id. at 1142 (quoting Associated Brick Mason Contractors of Greater New York, Inc. v. Harrington, 820 F.2d 31, 37 (2nd Cir. 1987)).
Nonetheless, the union asks the court to apply the First Circuit's earlier holding in Derwin v. Gen. Dynamics Corp., 719 F.2d 484 (1st Cir.1983), where the court borrowed Massachusetts' six year contract limitations period for an action to confirm an arbitration award. Although the union acknowledges that the arbitration had already concluded in Derwin, see id. at 490, it suggests that a similar "certainty" exits here, namely, the requests for arbitration, the assignment of an arbitrator and the scheduling of the arbitrations themselves.
Although the union's argument is creative, it is not persuasive. It was the finality of the arbitration that led the court in Derwin to apply the six year limitations period. Indeed, in doing so, the First Circuit distinguished the need to have a much shorter limitations period when, as here, the pending arbitration itself is in dispute:
[F]ederal policy supports the adoption of limitations periods calculated to encourage the speedy and final resolution of labor disputes, but [Massachusetts'] failure to specify a limitations period for *65 actions to confirm does not undermine that policy....
....
... Such a statutory scheme is fully consistent with the federal policy of according finality to labor awards. Since a relatively lengthy period for actions to confirm does not threaten the finality of arbitral awards, we see no basis for departing from the ordinary presumption favoring the application of state statutes of limitations to actions arising under section 301.
Id. at 489-90 (citations and footnote omitted). This distinction was drawn again in Communications Workers where the court expressly rejected the argument that Derwin controlled a section 301 action to compel arbitration. The court explained that, in Derwin,
the scales were weighted differently. An action to confirm arbitration takes place after the processes of dispute resolution have run their course.... For that reason, applying a relatively lengthy statute of limitations to confirmation actions does not implicate the finality of arbitral awards. This, of course, was among our core concerns in Derwin, for that very finality would be disserved by establishing a crabbed limitation period after which an award could not be confirmed.
Communications Workers, 860 F.2d at 1143-44 (emphasis in original).
In sum, the instant action to compel arbitration, as in Communications Workers, is subject to section 10(b)'s six month limitations period. As indicated, the union's action was filed more than six months after Commonwealth took the unequivocal position in its September 26, 2001 letter (if not before) that it would not arbitrate. Accordingly, the court concludes that the union's action is barred by the statute of limitations and, therefore, will enter summary judgment in Commonwealth's favor.
IV. CONCLUSION
For the foregoing reasons, the union's motion for summary judgment is DENIED and Commonwealth's motion for summary judgment is ALLOWED.
IT IS SO ORDERED.
NOTES
[1] As will be described, Commonwealth purchased the hospital's assets from Olympus Specialty and Rehabilitation Hospital d/b/a Olympus of Massachusetts, Inc. ("Olympus") in April of 2001. On September 3, 2002, Plaintiff initiated this lawsuit against both Olympus and Commonwealth. In February of 2003, after Olympus filed for bankruptcy, the court allowed Plaintiff to voluntarily dismiss Olympus from this action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386599/ | 517 F. Supp. 1287 (1981)
Peter PLACOS, Granville Buckley, Alan F. Marsh-Neame, Julian Gregory, Milton Pannaman, Alan A. T. Marks, Richard Dougherty, Robert J. Holowinski, Roy J. Di Vincenti, and Robert Lynn, Plaintiffs,
v.
COSMAIR, INC., doing business as L'Oreal, Defendant.
No. 80 Civ. 0562.
United States District Court, S. D. New York.
July 15, 1981.
*1288 Ford, Marin, Esposito & Witmeyer, New York City, for plaintiffs.
Clifton, Budd, Burke & DeMaria, New York City, for defendant.
MEMORANDUM OPINION AND ORDER
SOFAER, District Judge:
Plaintiffs have brought suit against their former employer, Cosmair, Inc., alleging four causes of action. Plaintiffs' first claim is that they were discriminated against because of their age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("the Act"). Invoking the Court's pendent jurisdiction, plaintiffs also allege that defendant wrongfully breached plaintiffs' employment contracts, intentionally inflicted emotional harm, and intentionally interfered with prospective employment relationships. Defendant has moved for summary judgment dismissing all claims except the claim for reinstatement, backpay, and liquidated damages under the Act. The motion is granted in part with respect to the first cause of action, and denied with respect to the pendent claims.
In Ginsberg v. Burlington Industries, Inc., 500 F. Supp. 696 (S.D.N.Y.1980), this Court held that "the ADEA should be read to preclude damages for pain and suffering or other psychological injuries caused by [the defendant's] violation of the Act." Id. at 701 (citations omitted). Liquidated damages, the intended remedy for willful violations, provide compensation for these intangibles.
For the same reason that damages for pain and suffering have been held unrecoverable, courts have concluded that punitive damages cannot be recovered in a suit brought under the Act. See, e. g., Walker v. Pettit Construction Co., 605 F.2d 128, 130 (4th Cir.), modified on other grounds sub nom. Frith v. Eastern Air Lines, Inc., 611 F.2d 950 (4th Cir. 1979); Murphy v. American Motors Sales Corp., 570 F.2d 1226, 1227 (5th Cir. 1978); Douglas v. American Cyanamid Co., 472 F. Supp. 298, 304 (D.Conn. 1979). Numerous courts have viewed the liquidated-damages provision as the alternative to compensatory and punitive damages. See, e. g., Douglas v. American Cyanamid Co., supra, 472 F.Supp. at 303; Fellows v. Medford Corp., 431 F. Supp. 199, 202 (D.Or.1977). This conclusion is supported by the testimony of Senator Javits, sponsor of the original bill and subsequent amendments, before the Senate Labor and Public Welfare Subcommittee on Labor: "the criminal penalty in cases of willful violations has been eliminated and a double liability substituted. This will furnish an effective deterrent to willful violators." 113 Cong.Rec. 7076 (1967) (emphasis in original) (quoting Hearings on S. 788 and S. 830 Before the Subcomm. on Labor of the Senate Labor & Public Comm., 90th Cong., 1st Sess.); see Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107, 110 (1st Cir. 1978); Dean v. American Security Insurance Co., 559 F.2d 1036, 1039 (5th Cir. 1977), cert. denied, 434 U.S. 1066, 98 S. Ct. 1243, 55 L. Ed. 2d 767 (1978). Liquidated damages are intended to serve as both punishment and deterrent, in place of criminal penalties and punitive damages.
Courts that have construed the Act to allow punitive damages have relied upon the general reference in section 7(b) of the Act permitting courts to grant such "legal *1289 ... relief as may be appropriate to effectuate the purposes of this Act," 29 U.S.C. § 626(b). But as the Court of Appeals for the Fifth Circuit observed in Dean v. American Security Insurance Co., supra, it would be inappropriate "to read into the superficial phrase `legal relief' wrenched from context, an intent to authorize the recovery" of punitive damages. 559 F.2d at 1038 (footnote omitted). As the Dean Court stated, "The provisions for liquidated damages for willful violation of the Act and its silence as to punitive damages convinces us that the omission of any reference thereto was intentional." Accord, Walker v. Pettit Construction Co., supra, 605 F.2d at 130. Congress intended to restrict the penalty provisions of the Act to doubling of the amount of lost earnings, confident that this remedy would suffice to deter willful violation and "effectuate the purposes" of the Act. The motion to dismiss the claims for pain and suffering and for punitive damages is granted. With respect to other relief sought under the first cause of action, there is no need to determine whether prospective damages are available or appropriate until a decision is made after trial as to reinstatement. Cf. Ginsburg v. Burlington Industries, Inc., supra, 500 F.Supp. at 701. Defendant does not deny that plaintiffs are entitled to attorney fees and costs if they prevail.
With respect to the second cause of action, defendant contends that there is no evidence of a written or oral contract, and that, under New York law, plaintiffs must therefore be considered employees at will, who cannot sue for termination. Although defendant correctly observes that Rule 56 imposes a duty upon the party opposing a motion for summary judgment not to rest upon the mere allegations in their pleadings, Fed.R.Civ.P. 56(e), plaintiffs have not had sufficient discovery to be able to set forth specific facts establishing contractual liability. Plaintiffs' contention that a motion for summary judgment cannot be supported by affidavits is wrong. See Fed.R. Civ.P. 56(b). They are correct, however, in arguing that the affidavits submitted by defendant fail to establish a basis for summary judgment at this time.
In addition, defendant has failed to establish that New York law governs the second cause of action. Assuming arguendo that New York law does apply, defendant is wrong in asserting that an employee may never sue for improper termination of a contract at will, although this second claim may need to be repled as a tort claim for abusive discharge. See Savodnik v. Korvettes, Inc., 488 F. Supp. 822, 824-27 (E.D.N.Y.1980); Fletcher v. Greiner, 106 Misc. 2d 564, 572-73, 435 N.Y.S.2d 1005, 1010-11 (Sup.1980); Chin v. American Telephone & Telegraph Co., 96 Misc. 2d 1070, 1075-76, 410 N.Y.S.2d 737, 740-41 (Sup.1978), aff'd, 70 A.D.2d 791, 416 N.Y. S.2d 160 (1979). Plaintiffs' claim may well satisfy the two-part test established in Chin: discrimination in employment because of age is against the public policy of New York, N.Y.Exec.Law § 296 (McKinney); Foran v. Cawley, 77 Misc. 2d 809, 812, 354 N.Y.S.2d 757, 761 (1973), and the termination by defendant has allegedly violated this policy. If plaintiffs could satisfy these evidentiary burdens, the claim of abusive discharge would be cognizable.
In moving for summary judgment on the third cause of action, the state tort claim of intentional infliction of emotional harm, defendant misstates the nature of pendent jurisdiction. Given a primary cause of action arising under federal law and a pendent claim growing out of a common nucleus of operative fact, appropriate relief may be granted on the state claim even though the same relief would not otherwise be available under the federal claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-29, 86 S. Ct. 1130, 1138-41, 16 L. Ed. 2d 218, 227-30 (1966). It would waste judicial resources to try plaintiffs' state claims separately from their federal claim, for all arise from a common set of facts. Potential jury confusion could be alleviated by the use of careful jury instructions and verdict interrogatories.
*1290 Defendant contends that the facts here do not satisfy New York's requirement for intentional-infliction cases of a showing of outrageous conduct. Even if such a showing is necessary under New York law, plaintiffs must be given the opportunity to conduct discovery into defendant's actions. Similarly, with respect to the fourth cause of action, plaintiffs must be permitted to investigate whether defendant used unlawful means or was motivated by a desire to injure plaintiffs, in allegedly interfering with their prospective employment relationships. Despite differences in timing between this claim and the federal claim, i. e., termination as opposed to subsequent retaliatory interference in a business relationship, the grievances emanate from a common scheme, and the evidence of subsequent activity would be probative of defendant's intent. As with the third cause of action, possible jury confusion could be minimized by special interrogatories and instructions. Finally, the complaint clearly alleges retaliatory conduct towards all plaintiffs.
Defendant's motion for summary judgment on the second, third, and fourth causes of action is premature. Plaintiffs must be given sufficient time for discovery so as to be capable of buttressing their claims. The motion for summary judgment is granted in part with respect to the first cause of action and is denied with respect to all other claims. Fed.R.Civ.P. 56(b). No costs to either side.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386606/ | 517 F. Supp. 564 (1981)
James M. HOFFMAN, D.D.S., P.A. and James M. Hoffman, D.D.S., Plaintiffs,
v.
DELTA DENTAL PLAN OF MINNESOTA, Defendant.
Civ. 3-80-67.
United States District Court, D. Minnesota, Third Division.
June 30, 1981.
*565 *566 *567 James L. Wahlfors, Thomson, Lovett, Wahlfors & Moran, Ltd., Bloomington, Minn., for plaintiffs.
Wayne A. Hergott and Margo L. Struthers, Moss, Flaherty, Clarkson & Fletcher, Minneapolis, Minn., for defendant.
MEMORANDUM & ORDER
DEVITT, Senior District Judge.
This is an antitrust action brought for alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and the corresponding state statute, Minn.State §§ 325D.51 and 325D.52.[1] This court has jurisdiction pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, 28 U.S.C. § 1337 and the doctrine of pendent jurisdiction. This matter is presently before the court on defendant's motion to dismiss for lack of subject matter jurisdiction, plaintiff's and defendant's cross motions for summary judgment as to Counts II, III and IV of the complaint, defendant's motion for summary judgment on Count I, defendant's motion to dismiss the pendent state claims, and defendant's motion to limit the issues raised in Count II of the complaint, defendant's motion to dismiss plaintiff James M. Hoffman for lack of standing, and defendant's motion to dismiss plaintiffs' claim for a civil penalty. For the reasons set forth herein, defendant's motion *568 to dismiss for lack of subject matter jurisdiction is denied, defendant's motion for summary judgment on Count I is denied, defendant's motion for summary judgment on Counts II, III and IV is granted, and defendant's motion to dismiss the pendent claims is granted in part and denied in part. Defendant's motion to dismiss James Hoffman, D.D.S. is denied for the nonce, and its motion to dismiss plaintiffs' claim for a civil penalty pursuant to Minn.Stat. § 325D.56 is granted.
The parties have stipulated to certain facts for the purposes of the cross motion for summary judgment. They are expressly incorporated herein by reference.
The plaintiffs are a professional corporation, solely owned by plaintiff James M. Hoffman, which employs Dr. Hoffman and is engaged in the practice of dentistry at three locations in western Hennepin and Anoka Counties in Minnesota. Plaintiff James M. Hoffman is a dentist licensed to practice in the State of Minnesota. Both the corporation and Dr. Hoffman specialize in the practice of endodontics. For the sake of convenience, plaintiffs will collectively be referred to as "Hoffman."
Defendant Delta Dental Plan of Minnesota ("Delta") is a non-profit dental service plan corporation organized pursuant to Minn.Stat. Chapters 317 and 62C. Delta is a third party payor which sells and underwrites prepaid dental coverage in the State of Minnesota.
Delta was formed in 1969 by the Minnesota Dental Association (MDA), a professional organization which sponsored the enabling legislation in Minnesota for health service plan corporations. Delta terminated its formal relationship with the MDA in 1971.
Delta is a membership organization; all of its members are dentists licensed to practice in the State of Minnesota who enter into a Dentist Membership and Participation Agreement ("Participation Agreement") with Delta. Approximately ninety-five (95) percent of dentists licensed in Minnesota are Delta members. Plaintiff Hoffman is not a member. Dentists who are not members of Delta are generally referred to as "non-participating" dentists.
Delta is managed by a board of twenty-one (21) directors. Fourteen (14) directors are Delta members; seven (7) are lay persons. The board is elected by the Delta membership.
Delta acts as a third party payor in purchasing dental services for its group subscribers, consisting of employee, union, and association groups. Subscriber contracts entered into between the group subscribers and Delta specify the benefits, exclusions, and conditions under which dental services will be provided.
The crux of the controversy between these parties involves a payment formula, whereby different levels of payments are made for services provided by participating and non-participating dentists. Simply stated, participating dentists receive payment directly from Delta at a maximum of the ninetieth percentile of participating dentists' usual fees. Non-participating dentists are limited to a maximum of the fifty-first percentile, and are not directly reimbursed by Delta. Delta admits that the main reason for the differential is to encourage participation by dentists in Delta. Covered persons are free to utilize the services of any dentist of their choosing.
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction.
A. Application of the McCarran-Ferguson Act.
Section 2(b) to the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), provides that, to the extent that the "business of insurance" is regulated by state law, it is exempted from the application of the antitrust laws. We hold that, to the extent the contracts between Delta and its subscribers and participating dentists provide for a payment differential between participating and non-participating dentists, they do not constitute the "business of insurance" within the meaning of the Act.
*569 In Group Life & Health Ins. v. Royal Drug, 440 U.S. 205, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979) ("Royal Drug") the Court determined that provider agreements between participating pharmacies and an insurer were not the "business of insurance." The Court noted that the primary elements of an insurance contract are the spreading and underwriting of a policyholder's risk. 99 S. Ct. at 1073. In Royal Drug, the provider agreements provided that policy holders buying drugs from participating pharmacies would pay only two dollars for each prescription, with Blue Shield reimbursing the participating pharmacy the difference between $2.00 and the pharmacies' cost for the drug. Patients using non-participating pharmacies received only 75% of their cost over $2.00. The Court rejected Blue Shield's argument that the pharmacy agreements helped underwrite the risk that an insured would not be able to pay for a prescription. Id. at 1074. The Court stated:
The fallacy of the petitioners' position is that they confuse the obligations of Blue Shield under its insurance policies, which insure against the risk that policyholders will be unable to pay for prescription drugs during the period of coverage, and the agreements between Blue Shield and the participating pharmacies, which serve only to minimize the costs Blue Shield incurs in fulfilling its underwriting obligations.
Id. (emphasis supplied). The Court went on to conclude that the pharmacy agreements were no more than "arrangements for the purchase of goods and services..." Id.
The second aspect of the "business of insurance" focused on in the Royal Drug case was the relationship between the insurer and the insured. Closely related to this is the type of policy which can be issued, its reliability, interpretation and enforcement. Id. at 1075. The Court held that the pharmacy agreements were not closely related to Blue Cross' status as a reliable insurer. Id.
Royal Drug is not distinguishable on the basis that, in this instance, the provider agreements incorporate the terms of the subscriber contracts which describe the payment differential. The payment formula is set out in the subscriber contracts. If mere inclusion of this type of provision in a subscriber contract would result in an exemption from the Sherman Act, form would improperly be exalted over the substance of the arrangement at issue. The payment differential between participating and non-participating dentists does not serve the risk spreading or risk underwriting inherent in an insurance contract between an insurer and an insured. By this arrangement, Delta is at most minimizing the costs it incurs in fulfilling its underwriting obligations. See Pireno v. New York State Chiropractic Association, 650 F.2d 387 (2d Cir. 1981); St. Bernard Hospital v. Hospital Service Assn. of New Orleans, Inc., 618 F.2d 1140, 1145 (5th Cir. 1980); see also Bartholomew v. Virginia Chiropractors Association, 612 F.2d 812, 819 (4th Cir. 1979) (Hall, J., concurring in part and dissenting in part) (where perpetrators and impact of conduct outside the insurance industry, no McCarran-Ferguson exemption available). And if the only reason for inclusion of the differential payment provision is to encourage participation in Delta, it is difficult to perceive how the relationship between insurer and insured is implicated.
Nor does the fact that the participation agreement provides for a five percent withholding of fees of participating dentists dictate that the differential payment provision be exempted from Sherman Act scrutiny. Discrete conduct must be examined in making a determination whether it is the business of insurance. St. Bernard Hospital v. Hospital Service Association of New Orleans, Inc., 618 F.2d at 1144. Moreover, the purported risk spreading character of the withhold is doubtful in view of the fact that it has been discontinued, Delta has no plans to reinstate the withhold, and Delta has never been in apprehension of a problem in the payment of benefits. Cf. National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, 479 F. Supp. 1012, 1018 (W.D.Mo. 1979), affirmed, 628 *570 F.2d 1050 (8th Cir. 1980), reversed on other grounds, ___ U.S. ___, 101 S. Ct. 2415, 69 L. Ed. 2d 89 (1981) (provider agreement providing for ultimate reimbursement to providers if funds unavailable for full benefit payment did not result in risks falling on provider).
B. Interstate Commerce
Defendant also moves to dismiss plaintiffs' claims for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that the acts of defendant complained of by plaintiffs neither take place in nor affect interstate commerce, as required by Sections 1 and 2 of the Sherman Act.
Plaintiffs allege in their complaint that the alleged restraint upon trade caused by the acts of Delta through its agreements with its participating dentists affects interstate commerce by reducing the volume of business available to nonparticipating dentists, thereby restricting their ability and incentive to purchase equipment manufactured and sold in interstate commerce, and by restricting the ability of out of state dentists to compete for the business of Delta-insured patients. Plaintiffs also allege that Delta by virtue of interlocking agreements with substantially identical Delta plans in other states, and by virtue of its payments of claims for insureds receiving services out of state, is engaged in interstate commerce.
Delta is a member of the Delta Dental Plans Association (DDPA), a national organization of Delta companies with headquarters in Chicago, Illinois. Delta companies pay dues to DDPA and receive services in return. The DDPA does not sell or administer national contracts, but it participates in the implementation of those contracts. Delta services national contracts which contain the benefit differential challenged in this action. Delta and two other Delta plans also own a computer service bureau located in San Francisco, California, which is used for claims processing by eight other Delta plans and twelve other entities.
A federal court has jurisdiction over Sherman Act claims if the business or conduct concerned occurs in interstate commerce or, though wholly intrastate, substantially affects commerce. See McLain v. Real Estate Board of New Orleans, 444 U.S. 233, 100 S. Ct. 502, 508, 62 L. Ed. 2d 441 (1980). We reject Delta's contention that its business activities are purely local in character. Delta's administration of national contracts sufficiently establishes the necessary effect on interstate commerce necessary to sustain Sherman Act jurisdiction. The allegations of the complaint, if proved, would result in unreasonable burdens on the free flow of interstate commerce. See Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 745, 96 S. Ct. 1848, 1852, 48 L. Ed. 2d 338 (1976).
II. Motions for Summary Judgment.
A. The Group Boycott Claims
Count I of plaintiffs' complaint alleges that, by virtue of an arrangement between Delta, its group subscribers, and its participating dentists, the differential in payment for the services of participating and non-participating dentists is maintained, and covered persons are discouraged from utilizing the services of non-participating dentists. Plaintiffs assert this arrangement constitutes a group boycott in violation of the Sherman Act under a Rule of Reason analysis. Count II alleges a group boycott as a per se violation of Section 1 of the Sherman Act.[2] We conclude that as a matter of law there has been no per se group boycott within the meaning of the Sherman Act, and defendant is entitled to summary judgment as to Count II.
The threshold issue which must be considered is whether or not there is sufficient evidence of an agreement, combination, or conspiracy involving Delta to meet the requirements for a Section 1 violation. Because there is no substantial evidence of *571 any concerted action involving the group subscribers of Delta with regard to the payment differential or inducement of covered persons to avoid utilizing non-participating dentists, we will consider only whether there can be concerted action between Delta and its members.
There must be more than one conspirator in order to have a group boycott. See, e. g., Card v. National Life Ins. Co., 603 F.2d 828 (10th Cir. 1979). We reject defendant's argument that Delta, as a single entity, is not a horizontal competitor of Hoffman, and cannot conspire with itself. Because of the member control of Delta as evidenced by member domination of the Delta board of directors, the fact that membership is exclusively composed of participating dentists, and the creation of Delta by the Minnesota Dental Association, we conclude that the existence of concerted action is not precluded as a matter of law. See Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476 (4th Cir. 1980). Moreover, because of member control of Delta, Delta can be considered the agent of its members. Thus, the requirement that the alleged conspirators be horizontal competitors of the injured party is also satisfied. Id. at 480.
The remaining issue is whether the alleged conduct of Delta, taking the evidence in the light most favorable to the plaintiff, could be considered a group boycott. In St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 542-43, 98 S. Ct. 2923, 2930, 57 L. Ed. 2d 932 (1978), the Supreme Court noted the lack of uniformity in the definition of the term "group boycott" in the case law. The Court defined the "generic concept of boycott" as a "method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target." Id. at 541, 98 S. Ct. at 2929. In that case, the Court found that a per se group boycott existed as a result of an agreement between insurers "to refuse to deal on any terms with its customers." Id. at 544, 98 S. Ct. at 2931. This agreement "effectively barred St. Paul's policyholders from all access to alternative sources of coverage..." Id.
Delta argues that because it has not totally refused to deal with Hoffman as a non-participating dentist, and because patients are free to choose any dentist, that there can be no group boycott as a matter of law. Some cases have so held. See Bartholomew v. Virginia Chiropractors Association, 612 F.2d 812, 817-18 (4th Cir. 1979) (peer review system setting levels of reimbursement to insureds for chiropractic services not a boycott because patients free to choose doctors, system did not limit fees, and excess fees could be collected by doctors); Travelers Ins. Co. v. Blue Cross of Western Pennsylvania, 481 F.2d 80, 84 (3d Cir.), cert. denied, 414 U.S. 1093, 94 S. Ct. 724, 38 L. Ed. 2d 550 (1973) (economic inducements in contracts between insurer and participating hospital providers not "coercion" within "boycott, coercion, or intimidation" exception in McCarran-Ferguson Act); Pireno v. New York State Chiropractic Assn, [1979-2] Trade Cas. ¶ 62,758 at 78, 378 (S.D. N.Y. Mar. 16, 1979), reversed on other grounds, 650 F.2d 387 (2d Cir. 1981) (existence of peer review system setting reimburseable fees for chiropractic services not sufficient to show inducement of patients to refuse to deal); Hahn v. Oregon Physicians' Service, [1981-1] Trade Cas. ¶ 63,923 at 75, 783 (D.Or. Feb. 27, 1981) (discrimination in reimbursement between physicians and podiatrists by insurer not a group boycott because insureds free to obtain podiatric care); Klamath Lake Pharmaceutical Assn. v. Klamath Medical Service Bureau, 507 F. Supp. 980 (D.Or.1981) (insurer providing benefits only at own pharmacy, with insureds free to utilize services of any pharmacy not a group boycott).
We agree that this is not a case involving a group boycott which is per se illegal. The per se approach is appropriate only when the conduct complained of is coercive or exclusionary. See e. g., E. A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Committee, 467 F.2d 178, 187 (5th Cir. 1972). Absent such conduct, application of the rule of reason is the correct approach in determining the legality of the *572 conduct. Id. In this instance, the purpose of the payment differential is to maintain Delta's level of membership. There is no evidence that indicates that Delta's conduct was motivated by a desire to exclude plaintiff from the practice of dentistry or even from serving Delta covered persons. This is clearly not the type of case where a per se approach is mandated by the presence of a "`naked restraint of trade.'" Id; see also Arizona v. Maricopa County Medical Society, [1980-1] Trade Cas. ¶ 63,239 (9th Cir. May 20, 1980) cert. granted, ___ U.S. ___, 101 S. Ct. 1512, 67 L. Ed. 2d 813 (1980). Accordingly, there being no genuine issues of material fact, Delta is entitled to summary judgment with regard to Count II.
Plaintiff's basic claim is that Delta, its group subscribers and its membership have conspired to induce covered persons to utilize only the services of participating dentists. This inducement allegedly flows from the structure of the payment formula for participating and non-participating dentists. Plaintiff claims that the effect of this conspiracy restricts plaintiff's ability to compete in the dental market, and that this conduct has an adverse effect on competition in the delivery of dental services. Plaintiff has stated a claim for a rule of reason violation of Section 1 of the Sherman Act. Those cases requiring a total refusal to deal under similar facts read the Supreme Court's decision in the Barry case too narrowly. The Court did not purport to define the entire reach of the concept of group boycott, and expressly reserved opinion on whether mere interference with the relations of a nonmember of a combination and its members or others could be viewed as a per se group boycott. 438 U.S. at 545, n. 18, 98 S. Ct. at 2932, n. 18. See also Smith v. Pro Football, Inc., 593 F.2d 1173, 1179, n. 22 (D.C.Cir.1978). Moreover, the Eighth Circuit Court of Appeals has noted that the term "group boycott" "is in reality a very broad label for divergent types of concerted activity." Worthen Bank & Trust Co. v. National BankAmericard Inc., 485 F.2d 119, 125 (8th Cir. 1973). The consequences of a group boycott are that entities are no longer free to maintain the independence essential to a free market-place. Id. Plaintiffs may prove at trial that such is the case here.
Since there are genuine issues of material fact in dispute involving a rule of reason analysis of Delta's payment differential to non-participating dentists, defendant's motion for summary judgment on Count I must be denied.
B. Attempt to Monopolize and Conspiracy to Monopolize
Count III of plaintiffs' complaint alleges an unlawful attempt by Delta to monopolize the practice of dentistry in the State of Minnesota through the imposition of economic penalties on non-participating dentists. Count IV alleges a conspiracy to monopolize the dental market on the part of Delta, its group subscribers and participating dentists. Delta is entitled to judgment on both of these counts.
In order to establish an attempt to monopolize a plaintiff must allege and prove a specific intent to monopolize and a dangerous probability of success in the relevant market. Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, 578 F.2d 1256, 1262 (8th Cir. 1978).
Plaintiff asserts that, since approximately 95 percent of dentists practicing in Minnesota are participating members of Delta, that Delta has established a monopoly in the practice of dentistry in the state, satisfying the element of a dangerous probability of success. The alleged goal of Delta in monopolizing the practice of dentistry is to obtain greater success in the sale of dental insurance.
The relevant product market involved is not the practice of dentistry, but is prepaid dental care. See Nankin Hospital v. Michigan Hospital Service, 361 F. Supp. 1199, 1209 (E.D.Mich.1973). Even if we assume that the relevant market is, as plaintiff contends, the practice of dentistry, the mere fact that 95% of practicing dentists have entered into participation agreements with Delta does not establish a monopoly on *573 the part of Delta of the practice of dentistry. Delta is in the business of prepaid dental coverage; estimates of its market share do not exceed 40 percent. Moreover, taking the practice of dentistry as a whole in Minnesota, Delta's share of dental purchases in the state is approximately only eight percent. In either case, not only is there no monopoly established, but there is not, as a matter of law, a dangerous probability that Delta will succeed in its alleged attempt. See United States v. Empire Gas Corp., 537 F.2d 296, 305 (8th Cir. 1976) (market shares of 47 and 50 percent insufficient to show dangerous probability of success).
Moreover, there is no evidence of a specific intent on the part of Delta to monopolize. Plaintiff asserts, and Delta agrees, that the purpose of the payment differential is to encourage membership in Delta. This, without more, is insufficient to give rise to an inference of wrongful intent on the part of Delta. See Hiland Dairy, Inc. v. Kroger Company, 402 F.2d 968, 975 (8th Cir. 1968).
Defendant is also entitled to summary judgment on Count IV. In order to establish a conspiracy to monopolize, a plaintiff must prove a conspiracy, and a specific intent to monopolize any part of interstate commerce. Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1377 (10th Cir. 1979). Plaintiff need not prove relevant market. Id. As with Count III, plaintiffs have failed to raise any genuine issue of material fact with regard to Delta's specific intent to monopolize.
III. Motion to Dismiss James M. Hoffman.
Defendant moves to dismiss the individual plaintiff, James M. Hoffman, D.D.S., for lack of standing. A shareholder generally does not have standing to assert a claim for an antitrust violation on the part of a corporation. See Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 363 (9th Cir. 1955). But in view of the unique relationship between a professional and professional corporation, the possibility that there may be facts proved at trial which will clarify the issue of standing of these plaintiffs, and the lack of any prejudice to the parties by deferring a ruling, defendant's motion to dismiss plaintiff James M. Hoffman, D.D.S., is denied for the nonce.
IV. Pendent State Claims.
Defendant's motion to dismiss the pendent state claims is conditioned on this court's granting defendant's motions on the federal claims. Plaintiff's claim pursuant to Minn.Stat. § 325D.51 corresponds to the federal group boycott claim found in Counts I and II. The claim brought pursuant to Minn.Stat. § 325D.52 corresponds with the monopolization claims set forth in Counts III and IV of the claim. The only surviving federal claim is the rule of reason group boycott claim found in Count II. Accordingly, we will retain jurisdiction over the pendent claim set forth pursuant to Minn. Stat. § 325.8013 and decline to exercise pendent jurisdiction over the claim brought pursuant to Minn.Stat. § 325.8014.
V. Civil Penalty Pursuant to Minn.Stat. § 325D.56.
Minn.Stat. § 325D.56 is entitled "Penalties for Violation," and provides for a civil penalty not to exceed $50,000 for any person found to have violated the provisions of the state antitrust law. That section also provides that a willful violation shall constitute a felony subject to fine and imprisonment. In addition, Minn.Stat. § 325D.57 provides for the recovery of treble damages by "[a]ny person, any governmental body, or the state of Minnesota or any of its subdivisions or agencies, injured by a violation of sections 325D.49 to 325D.66 ..." Minn.Stat. § 325D.58 provides for injunctive relief.
Neither parties have cited, nor has research produced, any case addressing a plaintiff's standing to recover the civil penalty provided for in Minn.Stat. § 325D.56. This statute, providing for penalties, both civil and criminal, for violations of the state antitrust laws is, on its face, a tool for public enforcement of these laws. This is in *574 contrast to the damage provision found in § 325D.57 which specifically sets forth those entities which may recover treble damages. We conclude the civil penalty provided for in Minn.Stat. § 325D.56 is not a remedy available to a private plaintiff.
Conclusion
Accordingly, defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED, defendant's motion for summary judgment on Count I is DENIED, defendant's motion for summary judgment on Counts II, III and IV is GRANTED, defendant's motion to dismiss plaintiff James M. Hoffman, D.D.S. is DENIED, defendant's motion to dismiss the pendent state claims is GRANTED in part and DENIED in part, and defendant's motion to dismiss plaintiff's claim for imposition of a penalty pursuant to Minn.Stat. § 325D.56 is GRANTED. The other motions of the parties are DENIED.
NOTES
[1] The Minnesota Antitrust Law of 1971, Minn. Stat. §§ 325.8011 to 325.8028 is now found in Minn.Stat. §§ 325D.49 to 325D.66. See Minn. Stat. § 325D.49.
[2] Plaintiffs expressly are not asserting nor pursuing any claims of price fixing on the part of Delta or its members. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/819219/ | Case: 12-11600 Date Filed: 02/04/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11600
________________________
D.C. Docket No. 1:11-cv-00974-TCB
JOSEPH LOWERY,
BRENDA PACE,
LEOLA GORDON,
LISA BARNES,
SHEILA GARVIN,
PORTIA CODJOE,
JOYCE CARLISLE,
GEORGIA LEGISLATIVE BLACK CAUCUS, INC.,
Plaintiffs - Appellants,
versus
GOVERNOR OF GEORGIA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 4, 2013)
Case: 12-11600 Date Filed: 02/04/2013 Page: 2 of 3
Before BARKETT and JORDAN, and RIPPLE, * Circuit Judges.
PER CURIAM:
This appeal arises out of the creation of several municipalities 1 from 2005 to
2008 in Fulton and DeKalb counties.
The Georgia Legislative Black Caucus, along with seven individual black
voters registered in Fulton and DeKalb counties, filed suit against Nathan Deal in
his official capacity as the Governor of Georgia alleging that the creation of the
municipalities diluted their voting rights in violation of the Voting Rights Act of
1965 (“VRA”), as amended, 42 U.S.C. § 1973(a), the Fourteenth Amendment’s
Equal Protection Clause, and the Fifteenth Amendment. 2 In response, and
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Governor
filed a motion to dismiss the complaint arguing that plaintiffs failed to state a claim
upon which relief could be granted. 3 The district court granted the motion to
dismiss, finding that plaintiffs failed to state a claim for vote dilution under the
*
Honorable Kenneth F. Ripple, United States Circuit Judge for Seventh Circuit, sitting
by designation.
1
The municipalities at issue and their years of incorporation are the City of Sandy
Springs (2005), the City of Milton (2006), the City of Johns Creek (2006), the City of
Chattahoochee Hills (2007), and the City of Dunwoody (2008).
2
They requested (1) a declaration deeming the municipal charters null and void and (2)
an injunction prohibiting further implementation of the municipalities and any legislation that
would dilute their voting rights.
3
The motion to dismiss also argued that the Governor was not the proper defendant and
that Appellants’ claims were barred by the equitable defense of laches. The district court did not
reach these arguments.
2
Case: 12-11600 Date Filed: 02/04/2013 Page: 3 of 3
VRA, the Fourteenth Amendment’s Equal Protection Clause, or the Fifteenth
Amendment.
We affirm the dismissal, but on different grounds than the district court. See
Ochran v. United States, 273 F.3d 1315, 1318 (11th Cir. 2001). We dismiss
because, after additional briefing, we conclude that the Governor of Georgia has no
power to provide any of the relief requested in this case. Therefore, the Governor
is not the proper party defendant. We express no opinion on the district court’s
basis for the dismissal or regarding any other issue raised in this case.
AFFIRMED.
3 | 01-03-2023 | 02-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386816/ | 331 S.W.2d 323 (1959)
James Pierce SISTRUNK, Appellant,
v.
STATE of Texas, Appellee.
No. 31044.
Court of Criminal Appeals of Texas.
December 2, 1959.
*324 Jim Martin, C. A. Droby, Robert H. Stinson, Jr., Dallas, for appellant.
Henry Wade, Cr. Dist. Atty., John Mead, Jr., Robert E. Lyle, A. D. (Jim) Bowie, Phil Burleson, James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Presiding Judge.
The offense is assault with intent to murder, with a prior conviction for an offense of like character alleged for enhancement; the punishment, fifteen years under Art. 62, Vernon's Ann.P.C.
The sufficiency of the evidence to sustain the conviction is not challenged insofar as the facts are concerned and for this reason we adopt the statement of the same as set out in appellant's brief:
"The appellant is James Sistrunk. His 17 year old step-daughter, Patty, became infatuated with Eugene Herrin, who is the 19 year old son of the complainant, Coy H. Herrin, Sr. Patty and Eugene had, for some time, been considering marriage. The appellant felt that the children were too young to be married at that time.
"The homes of both the Sistrunks and the Herrins were situated in Irving, Dallas County, Texas. All members of both the families were acquainted, if not on the friendliest of terms. Patty and Eugene had been going together for more than a year. The Herrins approved and the Sistrunks tolerated the relationship.
"On the night of August 14th, 1958, at about mid-night, Patty left the Sistrunk home via her bed-room window in her pajamas. She met Eugene who it would seem, just happened to be driving by the home at the time.
"In other words, Patty and Eugene eloped! They went to New Mexico to be married by a relative of the Herrins.
"When the appellant's wife awakened on the morning of the 15th, she discovered that her daughter was missing from her bed-room. She told her husband. When he returned from work, in the late afternoon of the 15th, and found that his step-daughter was still absent from home, he armed himself with a rifle, went to his car, and drove to the Herrin residence which was only a short distance from his home.
*325 "When he arrived at the Herrin residence, the appellant found Coy H. Herrin, the complainant. The appellant drove into the yard of the Herrin home. He wanted to know where he could find Eugene. While the appellant was still in his car there was an argument between the appellant and Coy H. Herrin. There was a scuffle over the rifle, which the appellant had in his car. There was a shot. The complainant, Coy Herrin, was seriously injured.
"It is the position of the State that the injury was the result of a deliberate act, while the appellant testified that the shooting was accidental."
Under appropriate instructions this issue was submitted to the jury, who resolved it against the appellant, and we find the evidence sufficient to support their verdict.
On appeal reliance is had upon the State's failure to prove that the offense of "assault with a deadly weapon with intent to murder" (the Arizona prior conviction plead for enhancement) was "a felony less than capital" as alleged in the indictment.
While it is true that the State did not prove such fact in making out its case in chief, the appellant testifying in his own behalf answered the following question in the affirmative: "You received a sentence of from twelve to twenty-five years as is shown in the papers heretofore admitted in court, did you not?"
When the appellant admitted that he had been convicted in Arizona in the case alleged for enhancement, we hold that as a matter of law he admitted all the allegations in the indictment relating to such case, including the fact that it was a felony less than capital.
Finding no reversible error, the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386805/ | 517 F. Supp. 211 (1981)
UNITED STATES of America, Plaintiff,
v.
Helen S. MARTIN, as Executrix of the Estates of Luther C. Martin, M. D., deceased, Trolley Realty Company, Incorporated, and Helen S. Martin (Individually), Defendants.
Helen S. MARTIN, as Executrix of the Estate of Luther C. Martin, M. D., deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. Nos. 76-2342-1, 77-1783-1.
United States District Court, D. South Carolina, Charleston Division.
June 1, 1981.
As Amended August 31, 1981.
*212 Jack L. Marshall, Asst. U. S. Atty., Columbia, S. C., for plaintiff.
Paul H. Infinger, Dowling, Sanders, Dukes, Novit & Svalina, Beaufort, S. C., for defendants.
ORDER
HAWKINS, District Judge.
The above actions, consolidated by order of this court filed July 26, 1978, involve a pond or impoundment artificially created on the marshes of and adjacent to Lower Toogoodoo Creek, Charleston County, South Carolina. At the time of its construction, this pond or impoundment was owned by Trolley Realty Company, Incorporated (hereinafter "Trolley"), with Luther C. Martin, M.D. (deceased), acting on behalf of Trolley. The pond is now owned by Helen S. Martin, widow of Luther C. Martin and Executrix of his estate (hereinafter "Martin").
On December 9, 1976, Civil Action No. 76-2342-1 was commenced by the United States of America (hereinafter "United States"). By order of this court dated December 26, 1978, Trolley Realty, Incorporated, Helen S. Martin, Lisa Martin, Bruce Martin, Bradley Richardson & Mrs. Bradley Richardson were added as party-defendants. After the death of Dr. Martin, on May 8, 1980, Helen S. Martin was substituted as a party-defendant for Dr. Martin, and defendants Lisa Martin, Bruce Martin, Bradley Richardson and Mrs. Bradley Richardson were dismissed as parties to this action.
In its complaint, the United States alleges violations of the Rivers and Harbors Act of 1899, seeking injunctive and restoration relief and civil penalties pursuant to Title 33, United States Code Sections 403 and 407. A second cause of action pursuant to the Federal Water Pollution Control Act was withdrawn by the United States.
On May 8, 1980, Trolley and Martin filed their answer and counterclaim setting forth several defenses, including two counterclaims seeking monetary damages pursuant to Title 28, United States Code Sections 1346(b) and 2674. The United States filed its reply to these counterclaims on May 12, 1980.
Civil Action No. 77-1783-1, was commenced by Luther C. Martin, M.D., against the United States on September 6, 1977. Upon Dr. Martin's death, Helen S. Martin (hereinafter "Martin"), as Executrix of the Estate of Luther C. Martin, M.D., was substituted as party-plaintiff. This action seeks monetary damages pursuant to Title 28, United States Code Section 1346(b).
Cross-motions for summary judgment were filed in both actions in May of 1980. The parties stipulated that there were no genuine issues as to any material facts. The motions were supported by affidavits, answers to interrogatories, depositions, testimony and the pleadings. Depositions of the following persons, with attached exhibits, were submitted in support of these motions:
(a) George Huey Director and State Conservationist,
Soil Conservation Service,
April 16, 1980
*213
(b) H. Exo Hilton Engineering and Soil Technician,
Soil Conservation Service,
August 2, 1978
(c) Andy Johnson District Conservationist, Soil
Conservation Service, April
15, 1980
(d) Col. William K. Brown District Engineer, Army Corps
of Engineers, March 26, 1980
(e) John Romanosky Chief of Operations, Army
Corps of Engineers, March 26,
1980
(f) Don Hill Surveying Technician, Army
Corps of Engineers, August 8,
1977
(g) Bob Riggs Surveying Technician, Army
Corps of Engineers, August 8,
1977
(h) Ben Gould Environmentalist, Army Corps
of Engineers, August 8, 1977
(i) Luther C. Martin, M.D. Summerville, South Carolina,
August 8, 1977.
Affidavits of the following persons were submitted with regard to the motions for summary judgment:
(j) W. T. Pope, dragline operator, who constructed the pond under the supervision and direction of H. Exo Hilton, Engineering and Soil Technician for the Soil Conservation Service;
(k) Edward B. Latimer, Esq., former Assistant Attorney General for the State of South Carolina;
(l) Robert H. Dunlap, Resource Geographer, South Carolina Wildlife and Marine Resources Department.
Testimony was presented before this court by the following expert witnesses pursuant to the direction of this court to submit evidence regarding the practicability and feasibility of any proposed restoration:
(m) John L. Gallagher, Ph.D., Associate Professor of Marine Studies, University of Delaware, for the United States;
(n) Charles M. Bearden, Biologist and Director of the Office of Conservation, Management and Marketing for the South Carolina State Wildlife and Marine Resources Department, for Martin and Trolley;
(o) William W. Neely, retired, United States Department of Agriculture biologist, for Martin and Trolley;
(p) Robert Frank, registered land surveyor, for Martin and Trolley.
Additional testimony was given by:
(q) Helen S. Martin, widow and Executrix of the Estate of Luther C. Martin, M.D.
The court made an on-site visit to the pond on January 30, 1981.
The issues for determination in these cases are:
(a) Will equitable defenses defeat a civil action by the United States for injunctive and restoration relief and civil penalties pursuant to the Rivers and Harbors Act of 1899?
(b) May a corporation or private citizen recover damages in an action against the United States if such damages result from negligent acts or omissions which subject such corporation or private citizen to mental suffering and anxiety, harassment and involvement in legal actions?
FINDINGS OF FACT
1. At various times between 1963 and 1979, the Soil Conservation Service of the United States Department of Agriculture (hereinafter "SCS"), through the State Conservationist (hereinafter "Director"), was put on notice, both orally and by letter, by the State Attorney General's office that no work should be done below the mean high water mark of any navigable waters or tidewaters without first obtaining state and federal permits.
2. At various times between 1970 and 1972, the United States Army Corps of Engineers (hereinafter Corps), through its Chief of Operations, discussed with representatives of the SCS the responsibilities of *214 the Corps with reference to cooperation and enforcement of its functions, including the issuance of permits by the Corps for work to be done below mean high water.
The Director of the SCS was told by the Corps that some work being assisted in by the SCS might need permits under the Rivers and Harbors Act. As a result of these conversations, the Director instructed the area soil conservationists to inform the field employees and district conservationists of this possibility and have them instruct the landowners to contact the Corps of Engineers.
3. Despite this knowledge, the SCS did not develop a written policy with regard to salt marsh impoundments until June 30, 1977.
4. On or about January 1973, Dr. Luther C. Martin requested assistance for and on behalf of Trolley from SCS with regard to Trolley's farmland on the Lower Toogoodoo Creek. The specific request was with regard to drainage of the crop fields and salt water intrusion on the farm land from a drainage waterway during "spring" tides. As a result, a SCS technician specializing in engineering and soil conservation met with Dr. Martin and, after discussing the property matter, did a preliminary survey and prepared a plan map for drainage ditches and construction of a pond to stop the erosion. After some discussion between Dr. Martin and the technician, and after reviewing the plan map, Dr. Martin requested a cost estimate for the work.
5. The SCS technician later met at the site with W. T. Pope, a dragline operator with whom the technician had been associated in previous work. After the perimeter stakes were set by the technician and Pope for the pond, a price was arrived at for the pond construction.
6. The costs were approved by Dr. Martin after another review of the plan and assurances that the SCS technician would supervise the work.
7. At or about the time construction commenced, Andy Johnson, the District Conservationist and supervisor of the SCS technician, met with Dr. Martin at the pond site. The conservation plan map prepared by the technician was approved by Johnson, as evidenced by his signature thereon. Sidi Limehouse, a SCS supervisor, also approved the agreement to do the work, and W. W. Neely, a SCS biologist, visited the pond during the proposed construction discussions.
8. Dr. Martin inquired of the SCS technician if any permits were required for the construction of the pond. The SCS technician did not advise Dr. Martin one way or the other.
9. Pond construction commenced in or about January, 1973, and was completed in April, 1973. Construction was by W. T. Pope, pursuant to the SCS Plan and under the supervision of the SCS technician. The technician visited the site approximately eighteen times during the construction period.
10. The United States Army Corps of Engineers, in December, 1974, served a Cease and Desist Order on Dr. Martin, complaining of excavation and fill below the local mean high water mark of six and four-tenths (6.4') feet.
11. In April, 1979, a topographic survey of the pond dike was made by the Corps referencing a National Oceanographic and Atmospheric Administration bench mark of six and seven-tenths (6.7') feet mean high water mark, which evidences that the southern portion of the dike meanders generally along the 1979 mean high water mark. No topographic information relating to mean high water mark is in evidence for the interior of the pond.
*215 12. Testimony from witnesses present at the site prior to construction of the pond is to the effect that the site was generally above the reaches of normal tides and that only upon "spring" or full moon tides did tidal waters flow into a ditch, gutter, or waterway that existed within the interior of the pond site.
13. The pond is presently a habitat for a variety of fishes, birds, shell fish and other forms of marine life, and, with proper management, it is capable of serving as a valuable marine and wildlife estuary.
14. That any attempts at restoration of the site to its natural state would likely fail. The benefits which would accrue to the public by allowing the pond to remain, pursuant to a proper management plan allowing a seasonal migration of pond inhabitants to adjacent waters, would greatly outweigh the benefits of any attempts at restoration.
CONCLUSIONS OF LAW
This court has jurisdiction of all parties and of the subject matter of these consolidated actions.
It is the position of the United States that the creation of the subject pond violated Title 33, United States Code Sections 403 and 407 (The Rivers and Harbors Act of 1899). The United States contends that the construction of the pond altered and modified the course, location, condition and capacity of the navigable waters of the Lower Toogoodoo Creek, and seeks the equitable remedies of injunction and restoration as well as civil penalties.
Martin and Trolley contend that the design, location, plans and construction of the pond were directed and supervised by the United States Department of Agriculture, Soil Conservation Service, an agency of the United States, and that any violation of the Rivers and Harbors Act was due to the negligence of the United States. Martin and Trolley raise the defense of equitable estoppel to defeat the action of the United States and, further, seek damages resulting from the alleged negligence pursuant to Title 28, United States Code Sections 1346(b) and 2674.
It is undisputed that in January of 1973, the Corps of Engineers had authority pursuant to the Rivers and Harbors Act to regulate excavation and fill below the mean high water mark of tidal, navigable streams. There is also no dispute that the Lower Toogoodoo Creek adjacent to the subject property is a tidal, navigable stream. The actual location of the mean high water mark at the pond site prior to or at the time of construction of the pond is not clear. The Corps' Cease and Desist Order of December, 1974, cited a mean high water elevation of 6.4 feet; the April, 1979, topographic survey of the Corps established a mean high water elevation of 6.7 feet.
The court notes the general duties and responsibilities of the SCS in the prevention of soil erosion to preserve natural resources and to maintain the navigability of rivers and harbors, and further to enhance the protection of land. 16 U.S.C.A. § 590a et seq.
Within this framework of authority, the SCS has for many years provided various degrees of advice, supervision and, in some instances, financial assistance, to fulfill these duties and responsibilities.
This court is also aware of the great responsibility placed on federal agencies, including the Corps of Engineers, in policing and maintaining the navigational capacity of our waters for the use and benefit of the public. In this regard, the Corps is responsible for the investigation, recommendation, and issuance of permits for fill and excavation of the navigable waters pursuant to the Rivers and Harbors Act. The appropriate *216 remedy for violation of this Act is injunctive and restoration relief, as well as civil penalties under the proper circumstances. 33 U.S.C. §§ 403 and 406; United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151 (S.D.Fla.1971), rev'd in part, 526 F.2d 1306 (5th Cir. 1976).
Pursuant to its jurisdiction in 1973 the Corps could have required its permit for construction and fill below the mean high water mark which existed at that time. Weiszmann v. Dist. Eng., U. S. Army Corps of Eng., 526 F.2d 1302 (5th Cir. 1976); United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976). If the pond was built above the mean high water mark which existed in 1973, however, then the Corps could not have required a permit because it would not have had jurisdiction. See, Moretti, 331 F.Supp. at 158; Sexton Cove, 526 F.2d at 1297. The only evidence in the record relating to the location of mean high water at the time of construction of the pond is from eyewitnesses. No surveys were performed in 1973 or prior to that time.
The SCS technician who designed and supervised the construction of the pond testified that the only area he estimated that may have been below mean high water was a small waterway which served as a drainage gutter, but that could only be determined by an accurate survey. Dr. Martin's deposition states that salt water flowed into the drainage ditch only on flood tides. W. T. Pope, the dragline operator, stated by affidavit that, based upon his observation and twenty-five years experience, the areas on which he constructed the dike were above mean high water. William W. Neely, former SCS biologist, testified that when he examined the site in late 1972, he observed a narrow "gut" or slough, about six feet in width, which extended a short way into the area being considered for the pond site. Mr. Neely stated that from observation of the vegetation, he felt that the gut might have some water in it on a normal tide.
The burden of proof is upon the United States to show that it had regulatory jurisdiction to maintain this action by evidence that there was excavation and fill below mean high water. One conclusive way to establish mean high water mark on a tidal, navigable stream is by a topographic survey referenced to an accurate tidal bench mark. Additional evidence, such as expert vegetation analysis, observation, soil analysis and photographs may serve to further determine the mean high water mark. United States v. Cameron, 466 F. Supp. 1099 (M.D. Fla.1978).
Examination of the Corps' 1979 topographic survey of the dike, six years after the pond was constructed, reveals that the dike meanders along the mean high water mark established at that time. The determination of the location of the mean high water mark in 1973, based on the testimony, is doubtful.
Assuming, but not concluding, that some portion of the dike and/or pond site was below mean high water at the time of construction, the issue arises as to whether Martin and Trolley have equitable defenses to defeat the relief sought by the United States.
Dr. Martin's deposition was to the effect that he knew of no other federal agency interested in the work recommended by the SCS, including the Corps of Engineers. He further testified that he inquired of the SCS technician if any permits were required. The SCS technician testified that he did not advise Dr. Martin one way or the other. This course of action by the SCS technician was contrary to the action recommended by the Director of the SCS to his subordinates to advise landowners to obtain Corps of Engineer permits if such were needed.
Although no such advice was given and no permit sought, the SCS took over the mechanics of staking and supervising the construction of the pond, with costs to be *217 paid by Trolley. The pond was completed in or about April, 1973. In December, 1974, approximately 20 months later, the Corps of Engineers served its Cease and Desist Order.
The United States Court of Appeals for the Fifth Circuit has dealt with several violations of the Rivers and Harbors Act. Although denying strict estoppel application, that Court has based its decisions on equitable principles involving a balancing of comprehensive evaluations of environmental factors with the practicalities of restoration. See, Sexton Cove, 526 F.2d at 1301; Weiszmann, 526 F.2d at 1304-5; Moretti, 526 F.2d at 1310. This court finds these cases persuasive.
The pond was built with the advice, design, and supervision of the United States Department of Agriculture, Soil Conservation Service, a federal agency. Even though several SCS employees were at the site at different times throughout construction, no advice or recommendations were given to stop the project until construction could be coordinated with other regulatory agencies.
While the Corps of Engineers has a legitimate concern that the effect of a structure placed below mean high water without prior approval may be detrimental to the surrounding waters and marshes, no such detrimental effect has been demonstrated in this case. In fact, the evidence is that the pond is itself an environmental ecosystem that serves as a nursery for many varieties of marine organisms which, under proper management, can be returned to the adjacent waters and marshes.
Further, the evidence is that any attempt at restoration by removal of all or a portion of the dike would likely prove unsuccessful since this pond has been in existence for approximately eight years. There is also a possibility that the entire area would become toxic to marine life. As has been pointed out in similar cases, attempts to reverse such effects and restore the environment to its natural state carry with them no guarantees of success. See, Sexton Cove, 526 F.2d at 1301.
This court does not condone the actions of persons who excavate and fill areas which are subject to the jurisdiction of federal agencies and for which permits are required in order to insure the public's welfare. In the instant cases, however, this court cannot find any convincing evidence that the public policy of the United States would be frustrated by allowing the continued existence of the pond. The pond has not been shown to materially alter or modify the course, location, condition or capacity of Lower Toogoodoo Creek. The requested injunctive and restoration relief sought for the assumed marginal encroachment, if any, of the pond must be tempered with equity. See, Sexton Cove, 526 F.2d at 1301; Lazy FC Ranch, 481 F.2d at 987-989; Sierra Club v. Leslie Salt Co., 412 F. Supp. 1096 (N.D.1976); Bailey, 467 F.Supp. at 929; United States v. Lewis, 355 F. Supp. 1132 (S.D.Ga.1973).
As an additional defense to the suit by the United States, Martin and Trolley allege estoppel. This court is aware of the line of cases that have developed since 1950 establishing the proposition that estoppel is available as a defense against the government if the government's wrongful conduct threatens to work a serious injustice and if the public's interest would not be unduly damaged by the imposition of estoppel. See, Moser v. United States, 341 U.S. 41, 71 S. Ct. 553, 95 L. Ed. 729 (1951); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973), Annot., 27 A.L.R.Fed. 702 (1976); Shuster v. C. I. R., 312 F.2d 311 (9th Cir. 1962); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970); United States v. Bailey, 467 F. Supp. 925 (E.D.Ark.1979). Contra; Robinson v. Vollert, 602 F.2d 87 (5th Cir. 1979); Hicks v. Harris, 606 F.2d 65, 69 (5th Cir. 1979). In connection with these holdings of the Fifth Circuit, Cf., United States v. California, 332 U.S. 19, 40, 67 S. Ct. 1658, *218 1669, 91 L. Ed. 1889 (1947); United States v. Davenport, 297 F.2d 284 (4th Cir. 1961); United States v. Newport News Shipbuilding and Drydock Company, 571 F.2d 1283 (4th Cir. 1978). However, having weighed the evidence and finding that the issues in these cases can be resolved on other principles as above set forth, the Court does not deem it necessary to address such additional defense.
It is, therefore, the finding of this court that, as to Civil Action No. 76-2342-1, the continued existence of the pond, subject to a reasonable management plan which would allow the seasonal entrance and exit of marine animals and fishes, with reasonable maintenance of any species inhabiting said pond, should be allowed, and that Martin and Trolley's motion for summary judgment with regard thereto be, and the same is hereby, granted.
As noted above, Martin and Trolley have asserted two counterclaims against the United States. First, they contend that they are entitled to be reimbursed by the United States for expenses incurred in the construction of the pond. This contention is premised on the assumption that the court would order the impoundment broken. The decision of this court to allow the continued existence of the pond renders this counterclaim moot. Martin and Trolley have also asserted a claim for damages pursuant to Title 28, United States Code Section 2674; and, in Civil Action No. 77-1783-1, Martin seeks damages pursuant to Title 28, United States Code Section 1346(b). The court finds that there is insufficient evidence upon which to base any award of damages and hereby dismisses these causes of action.
AND IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2386963/ | 331 S.W.2d 450 (1959)
1018-3RD STREET et al., Appellants,
v.
STATE of Texas, Appellee.
No. 6899.
Court of Civil Appeals of Texas, Amarillo.
October 26, 1959.
Rehearing Denied October 26, 1959.
*451 E. A. Blair and Clifford W. Brown, Lubbock, for appellants.
William J. Gillespie, Lubbock, for appellee.
CHAPMAN, Justice.
The following opinion is in lieu of our opinion announced on September 28, 1959.
This case is an appeal from a judgment of the court below permanently enjoining and abating a common nuisance and padlocking all the occupied buildings on Lots 15 and 16, Block 4, Lubbock, Texas, in a suit for the suppression of a public nuisance by means of a civil remedy exercised through *452 the police power of the State. The suit was brought under the provisions of Articles 666-29 and 667-27 against the premises known as 1018 3rd Street and, more particularly, described as the lots and block just named, and against the residents thereof, Juan Ysasga, his wife, Carmen Ysasga, and her parents, Ramon Hernandez and Antonia Hernandez, who were alleged to be operating a common nuisance on such premises in violation of the Texas Liquor Control Act. The jury found all parties maintained or assisted in maintaining such common nuisance.
Juan Ysasga was, without question, shown by the evidence herein to be a consistent, stubborn, flagrant violator of the liquor laws of Texas over a period of many years, and even was held in contempt in this case for a violation while the injunction was pending against him. The record shows his illegal liquor business was so flourishing that more than 30 cars an hour would come through the alley adjacent to the homes of the parties hereto for service; that Ysasga had no gainful occupation; that he kept in operation 4 to 6 automobiles and had as many as 4 people selling while he directed them when to sell and when not to sell.
The premises in question had two occupied houses enclosed by a single stone fence. Ysasga and his family lived in one of the houses before the injunction was granted and his mother-in-law and father-in-law lived in the other. Following the granting of the injunction they switched houses. At times both families had their meals in the house at 1018 3rd Street on the premises but the evidence indicates that later they ate principally where they lived. The record title to the premises was in the name of Ramon Hernandez, the father-in-law. He also held record title to two other houses in Lubbock. Carmen Ysasga, the wife, had one liquor conviction against her and Ramon Hernandez had one such conviction against him several years prior to the granting of the injunction.
The case is before us upon three points of error. The first point urges error for failure "to grant the defendant's pleas in abatement and to submit to the jury the defendant's special requested special issue as to whether or not the premises sought to be padlocked was the homestead of Ramon and Antonia Hernandez. The question as raised requires a decision by us as to whether one's homestead may be padlocked for a year under the provisions of the articles named, a question which apparently has not been decided directly by the appellate courts of Texas.
Appellants contend that the padlocking of a residence homestead was not contemplated by the legislature in passing the article above named and urges Art. 16, Sec. 50 of the Constitution of Texas, Vernon's Ann.St., as a bar thereof. Art. 666-29, Texas Penal Code provides in part as follows:
"Any room, building, boat, structure, or place of any kind where alcoholic beverages are sold, bartered, manufactured, stored, possessed or consumed in violation of this Act, or under conditions and circumstances contrary to the purposes of this Act, and all such beverages and all property kept and used in any such place, hereby are declared to be a common nuisance; and any person who maintains or assists in maintaining such common nuisance shall be guilty of a violation of this Act. * * * Upon such final judgment the court shall order that said room, house, building, structure, boat, or place of any kind shall be closed for a period of one year, or closed for a part of said time and until the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety to be approved by the court making the orer in the penal sum of not less than One Thousand Dollars ($1,000), payable to the State and conditioned that alcoholic beverages will not thereafter be manufactured, bartered, possessed, stored, or sold, or otherwise disposed of therein, or kept thereon or therein, with *453 the intent to sell or otherwise dispose of contrary to law. * * *"
The judgment of the court provided the premises should be finally closed and padlocked for a period of one year from the date of the judgment, or until such time as the defendants entered into a proper bond in the sum of $5,000 conditioned that the provisions of the Texas Liquor Control Act will not be violated at said premises.
Article 667-27 makes it the duty of the Attorney General or the District or County Attorney to enjoin violations of the Texas Liquor Control Act and gives the District Judge the authority to grant an injunction to prevent threatened or further violations of such act.
In referring to Art. 666-29, Vernon's Annotated Penal Code and Art. 16, Sec. 50 of the Texas Constitution, the Eastland Court of Civil Appeals in Kimbrough v. State, 144 S.W.2d 401, 402, has said:
"The judgment does not set forth precisely the ground upon which the court refused to order the defendant's residence to be closed. Manifestly, the statute does not in express terms except property constituting a homestead from its provisions. The constitutional exemption of a homestead, most often the subject of litigation, relates alone to debts, and the power of sale of the owner `if a married man.' Const. Art. 16, sec. 50, Vernon's Ann. St. If said Vernon's Ann.Penal Code, Art. 666-29, authorizes the closing of a house constituting the defendant's homestead, the legislative power to do so is referable to the police power." * * *
"We do not find it necessary nor advisable, particularly in the absence of briefs on the question, to determine whether said statute authorizes in a civil action by the State the closing of defendant's homestead. For the purposes of this case we may assume without deciding that it does so."
The Kimbrough case then quotes the Supreme Court case of Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 274, as follows:
"When the State, through its proper officers, invokes the jurisdiction of a court of equity to abate a nuisance, it must be shown either that the action is directly authorized by some constitutional or statutory law, or that such nuisance is an injury to the property or civil rights of the public at large, * * *."
The Eastland court then affirmed the action of the lower court in refusing to padlock the residence homestead "under the circumstances herein adduced" by observing that the wife who had a direct interest in the homestead necessarily to be affected by an order closing it was not made a party to the suit. The court then refused to pass directly on the question of the right to padlock a residence homestead under the circumstances where the wife had not been made a party.
The interpretative comments under Art. 16, Sec. 50 of Vernon's Texas Constitution gives us some history of the adoption of the homestead exemption in Texas by saying in effect that it is a Texas creation. It evolved as a result of the social attitude toward debtors whereby the person, then the personal property, and finally the real estate were freed from control of the creditor through the abolition of imprisonment for debt, the extension of chattel exemptions and the adoption of the homestead exemption, with limitations. Such comments suggest that the direct cause of the law was the U. S. Panic of 1837 and the loss of numerous homestead farms by Texas families during the ensuing depression and had a threefold purpose:
"(1) To preserve the integrity of the family as a basic element of social organization * * *;
"(2) To provide the debtor a home for his family and some means to support *454 them and to recoup his economic losses so as to prevent the family from becoming a burden upon the public;
"(3) To retain in pioneers the feeling of freedom and sense of independence which was determined necessary to the continued existence of democratic institutions."
Neither in this history, nor in any reliable Texas case book authority, do we find even a suggestion that our forebearers conceived of a homestead exemption for the purpose of erecting a barrier behind which criminals might ply their trades while thumbing their noses at law enforcement officers diligently and sincerely seeking to enforce prohibitions residents of the area had expressed a desire for at the ballot box.
Therefore, since it seems apparent that our statutes which make provisions for the action taken herein do not except homesteads and the constitution of Texas does not prohibit such statutory authority we see no good reason why a homestead should protect persons in such operations as the evidence shows were being conducted in this case. The object of Art. 666-29 would be defeated if its provisions do not apply against homesteads. The purpose of the statute is a broad one, and it should be given a construction which is consonant with that purpose. Therefore, appellants' point one is overruled.
The second point asserts error of the trial court for failure to submit to the jury whether appellants intended to violate any of the Texas liquor laws in the future.
Though Juan Ysasga was placed on the witness stand he never at any time in any of his testimony asserted he did not intend to violate the liquor laws in the future. Thus, he did not raise any question to present to the jury on his future intentions. The record is without contradiction that Juan Ysasga had the free run of the entire premises and that he operated out of both houses at different times. Indeed, the appellants by brief admit the State proved numerous sales at 1018 3rd Street and in the driveway thereof, in the alley behind said premises, and next door at the other house on the premises. Additionally, we believe the evidence is conclusive that all four defendants had knowledge of the fact that the liquor laws were being violated on the premises. Even if it should be said the contrary was true, under the record of this case, it would not preclude the action of the trial court in refusing the issues complained about.
The Dallas Court of Civil Appeals in an injunction and padlocking case under the same article as the one here under consideration said of the owners Dodd and wife:
"If, in fact, Dodd and wife were innocent of all violations of the law, and had no knowledge of the acts of their codefendants causing their property to be condemned as a nuisance, they cannot complain of the closing and padlocking of the building for unlawful acts of others." Dodd v. State, Tex. Civ.App., 193 S.W.2d 569, 572.
Since the record here reveals that Juan Ysasga used the entire premises in his illegal liquor law violations and that he did not tender any proof that he did not intend to violate the liquor laws in the future, we believe appellants' point two is without merit. Vance v. State, Tex.Civ.App., 179 S.W.2d 436.
Appellants' last point of error complains of the method of submission of the issues inquiring if the parties named maintained or assisted in maintaining a common nuisance.
The first issue inquired if the manner of operating and maintaining the premises was a nuisance, "as defined herein." The charge gave the statutory definition of common nuisance as applied to liquor violations. Each issue complained about was conditioned upon the jury's having first answered "yes" to Special Issue No. 1 and *455 that only in such event would they answer Issues 2, 3, 4 and 5. The principal contention is that the use of the term "such common nuisance" constituted a comment upon the weight of the evidence by telling the jury the court believed a common nuisance was being maintained. The word "such" refers back to the nuisance inquired about in the first issue and the court had asked the jury if the manner of operating and maintaining the premises was a nuisance as defined. The definition was of a common nuisance. The issues would have been in better form had they been phrased to ask "if the defendant maintained or assisted in maintaining a nuisance, (or common nuisance) if any, or, if any you have found," but we do not believe the manner of submission was such as to justify our sending the case back for another trial.
Rule 434, Vernon's Ann. Texas Rules provides that "No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * *"
This rule enlarged the doctrine of harmless error so as to cast upon the complaining party the burden of showing at least that error probably resulted to his prejudice. Texas Power and Light Co. v. Hering, Tex., 224 S.W.2d 191. In determining if the complaining party has been harmed by the error complained about the appellate court will consider the question from the record as a whole. Texas Power and Light Co. v. Hering, supra. We have carefully studied this record as a whole and are of the opinion that even if it should be said the method of submission of the issues complained about constituted error such error did not amount to such a denial of the rights of the appellants as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. The judgment of the court below is in all things affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2387624/ | 9 F. Supp. 2d 858 (1998)
DADE INTERNATIONAL, INC.
v.
Tracy IVERSON and Johnson & Johnson Clinical Diagnostics, Inc.
No. 3:97-0878.
United States District Court, M.D. Tennessee, Nashville Division.
March 17, 1998.
*859 Harold Frederick Humbracht, Jr., Boult, Cummings, Conners & Berry, P.L.C., Nashville, TN, Irving B. Levinson, James W. Marks, Julie L. Schultz, Holleb & Coff, Chicago, IL, for Dade International, Inc.
Hal Martin, Nashville, TN, for Tracy Iverson.
John S. Hicks, Baker, Donelson, Bearman & Caldwell, Nashville, TN, W. Michael Richards, Michael Richards, Baker, Donelson, Bearman & Caldwell,Memphis, TN, John R. Middleton, Ellen Mokover Martin, Patterson, Belknap, Webb & Tyler, New York, NY, for Johnson & Johnson Diagnostic, Inc.
MEMORANDUM-OPINION
JOHN T. NIXON, Chief Judge.
Pending before the Court is the Defendant Johnson & Johnson's Motion to Dismiss Counts I, III, and IV of the Complaint (Doc. No. 11), to which the Plaintiff has responded *860 (Doc. No. 21), and the Defendant has replied (Doc. No. 22). Also before the Court is the Defendant Tracy Iverson's Motion to Dismiss and for Summary Judgment of the counts against him (Doc. No. 16), to which no response has been filed. For the reasons more fully outlined below, Defendant Johnson & Johnson's Motion is GRANTED,[1] and Defendant Iverson's Motion is GRANTED in part and DENIED in part. Accordingly, the claims against Johnson & Johnson are DISMISSED in their entirety with prejudice, thereby dismissing Johnson & Johnson as a party to this action, and the breach of contract claim against Defendant Iverson is DISMISSED with prejudice. Finally, the Court RESERVES JUDGMENT on Iverson's Motion for Summary Judgment on Count II of the Complaint.
This is a diversity action pursuant to 28 U.S.C. § 1332. Dade International ("Dade") is in the clinical diagnostics products business. Its client base consists primarily of hospital and medical laboratories. Tracy Iverson was employed by Dade as the Director of Healthcare Systems from 1996 through 1997. Prior to his employment at Dade, Iverson was employed for almost twenty years with DuPont as the Implementation Manager, and was responsible for the implementation and ongoing strategy development between DuPont and Columbia/HCA, one of its largest customers. Iverson was hired by Dade after the company acquired DuPont through an asset and sales purchase. At Dade, he was named the Contract Compliance manager for its sole source contract with Columbia/HCA. In that capacity, he was allegedly privy to highly confidential information concerning Dade's relationship with Columbia/HCA, including pricing and cost structure for certain products, information concerning new products, and marketing and customer information. On June 9, 1997, Iverson submitted his letter of resignation at Dade and informed the company that he had accepted a position with Johnson & Johnson ("J & J"), one of Dade's strongest competitors.
Dade alleges that immediately prior to Iverson's resignation announcement, he pressed to obtain sensitive information ahead of schedule in order to use this information in the course of his employment with J & J. It claims that Iverson's conduct constituted a breach of contract, and a misappropriation of trade secrets. Furthermore, it asserts that J & J's act of hiring Iverson and giving him a position where he would be able to use Dade's confidential information constituted unlawful procurement of breach of contract, and unfair competition.
The breach of contract allegation against Iverson is based on a handbook that was distributed to employees by Dade. Employees, including Iverson, were required to sign a form confirming that they had read the handbook and understood it. The manual is entitled "Standards for Ethics and Business Conduct," and contains guidelines relating to such issues as workplace harassment, political activities, acceptance of gifts, securities trading, and, most notably for the purposes of this action, confidential information and competitive information. (Compl. Ex. B.) Specifically, it provides that: "As part of their employment with Dade, employees agree not to disclose or use for their own benefit the confidential information and trade secrets of the company." (Id. at 3.)
The parties do not dispute that Tennessee law should govern the above claims. In Tennessee, an employee handbook may become an employment contract if it states on its face the employer's agreement to be bound by the terms of the contract. Rose v. Tipton County Public Works Dept., 953 S.W.2d 690, 692 (Tenn.App.1997). This intent must be expressed in the form of a guarantee or a binding commitment, and must be determined by reference to the context of the entire handbook, "read in conjunction with any other relevant material, such as an employment application." Id. (quoting *861 Claiborne v. Frito-Lay, Inc., 718 F. Supp. 1319, 1321 (E.D.Tenn.1989)).
A thorough reading of the "Standards for Ethics and Business Conduct" manual however, reveals no language indicating an intent by Dade to be bound by its terms either in its text, its introduction, or in the acknowledgment form which the employees were required to sign. The manual generally sets forth the company policy with respect to ethical issues that arise in the workplace. Nowhere in the text of the manual does the company indicate any intent to be contractually bound by the manual. Furthermore, the introduction to the manual, which consists of a letter signed by Scott T. Garrett, the President and CEO of Dade, similarly fails to express a binding commitment on behalf of Dade. While the introduction does state that the company "share[s] a commitment with ... employees to work honestly, ethically and legally," this is not sufficient to connote an intent to be bound by the handbook's terms. Compare Williams v. Maremont Corp., 776 S.W.2d 78, 80 (Tenn.Ct.App.1988) (language in handbook stating that employees will be recalled in order of seniority held binding) with Rose, 953 S.W.2d at 693 (manual which referred to "established rules" was not held binding because manual also indicated that rules only served as a "guide"). In the present case, the fact that the company asserted that it was "committed" to working with employees to maintain an ethical workforce is not "specific enough to rise to a guarantee." See Rose, 953 S.W.2d at 693 (making a similar conclusion with respect to a manual which was to serve as a "guide"). Finally, the acknowledgment letter which was signed by Iverson only asked employees to confirm that they had read and understood the manual. It did not require employees to agree to be bound by the manual, or stipulate that the employer itself would be bound by it.
Consequently, the Court finds that as a matter of law, the "Standards for Ethics and Business Conduct" manual was not an employment contract. As the Plaintiff has failed to prove the existence of a valid contract, Counts I and III of the Complaint, which allege breach of contract and unlawful procurement of a breach of contract, are dismissed. See Winfree v. Educators Credit Union, 900 S.W.2d 285, 290 (Tenn.Ct.App. 1995) ("Tennessee requires a breach in any action for unlawful interference").
The Court also concludes that the unfair competition claim against J & J should be dismissed. In its most common form, the tort of unfair competition requires a showing that:
(1) the defendant engaged in conduct which `passed off' its organization or services as that of the plaintiff; (2) in engaging in such conduct, the defendant acted with an intent to deceive the public as to the source of services offered or authority of its organization; and (3) the public was actually confused or deceived as to the source of the services offered or the authority of its organization.
Sovereign Order of St. John v. Grady, 119 F.3d 1236, 1243 (6th Cir.1997). This tort is generally alleged as part of a trademark infringement case. See Frisch's Restaurants, Inc., v. Elby's Big Boy, 849 F.2d 1012, 1015 (6th Cir.1998) (facts which support claim for trademark infringement also support unfair competition claim).
The Plaintiff has not asserted any facts which fit within the elements of the tort of unfair competition as enumerated above. However, in its opposition papers, the Plaintiff asserts that in AmeriGas Propane v. Crook, 844 F. Supp. 379 (M.D.Tenn.1993), this Court recognized a cause of action for unfair competition against a former employee who had misappropriated a company's confidential information. Id. at 389. The Defendants point out that AmeriGas is distinguishable from the present case because there, the Court found that the employee had breached a non-competition agreement. Id. at 385. In contrast, in the present case, the Court has not found that a breach of contract has occurred. Furthermore, the Court notes that AmeriGas also involved a cause of action against an employee who was a party to the contract. Here, the cause of action is being asserted against the company who hired a competitor's former employee in order to *862 order to make use of the employee's knowledge of the competitor's trade secrets.
The Tennessee Court of Appeals has considered it appropriate to extend the tort of unfair competition beyond the context of trademark infringement in certain circumstances. In B & L Corp. v. Thomas & Thorngren, Inc., 917 S.W.2d 674 (Tenn.Ct. App.1995), for instance, the court held that an action for unfair competition could be sustained for a breach of a fiduciary relationship by an employee who uses confidential information to the employer's detriment. Id. at 681. In so doing, the court noted that "[u]nfair competition is a generic name for several related torts involving improper interference with business prospects." Id. (citing Prosser and Keeton on the Law of Torts § 130 at 1013 (5th ed.1984)).
Aside from this general statement of the nature of an unfair competition claim, however, the Court has been unable to find any case law which has specifically extended the tort of unfair competition to a case similar to the one at bar where a company hired a competitor's employee and used the employee's knowledge of its competitor's trade secrets.[2] While the B & L court did state that "all unfair competition does not stem from a breach of a fiduciary relationship," it did not elaborate on what other kinds of actions can constitute unfair competition.[3] Because the B & L court relied in part on Prosser and Keeton in its opinion, this Court will also refer to that treatise in determining whether a cause of action for unfair competition can be asserted under the present facts.
Prosser and Keeton describes the tort of unfair competition as arising "when the defendant engages in any conduct that amounts to a recognized tort and when that tort deprives the plaintiff of customers or other prospects." Prosser and Keeton, § 130 at 1014. It further emphasizes that "[u]nfair competition thus does not describe a single course of conduct or a tort with a specific number of elements; it instead describes a general category into which a number of new torts may be placed when recognized by the courts." Id. at 1015. Thus, it appears that the tort of unfair competition is simply a remedy for economic loss that is incurred from an underlying violation of a tort or a breach of contract.
In the present case, the Plaintiff has not alleged a cognizable cause of action against J & J for a violation of any tort independent of the tort of unfair competition. Nor does it appear that the Plaintiff could have alleged a cognizable tort against J & J, as Tennessee does not recognize the tort of interference with prospective economic advantage. Nelson v. Martin, 958 S.W.2d 643, 645-46 (Tenn. 1997). Furthermore, as expressed above, since there was no contract between Iverson and Dade, a cause of action for unfair competition could not be sustained on the basis of the underlying tort of procuring a breach of contract. The Plaintiff itself has not alerted the Court to any other possible torts from which it could base its claim of unfair competition, nor can the Court conceive of one. Accordingly, the Court will dismiss Dade's claim of unfair competition by Defendant J & J.
Finally, with respect to the cause of action against Iverson for misappropriation of trade secrets, the Court concludes that Dade has asserted enough facts in its Complaint to survive a motion to dismiss. A cause of action for misappropriation of trade secrets involves the following elements: (1) the existence of a trade secret; (2) acquisition of the trade secret as a result of a confidential relationship; and (3) unauthorized *863 use of the secret. TGC Corp. v. HTM Sports, 896 F. Supp. 751, 756 (E.D.Tenn. 1995). Although Iverson has submitted an affidavit denying that he had knowledge of any trade secrets (Iverson Decl. ¶ 7), in a motion to dismiss, the Court's only task is to determine whether a cognizable claim has been pleaded in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Dade has asserted every element of the tort for misappropriation of trade secrets in its Complaint. (See Compl. ¶¶ 50-56.) Accordingly, it would be inappropriate to dismiss this claim at this juncture. Although the Defendant has also asked this Court to dismiss the Count on the basis of summary judgment, there has been insufficient discovery to permit the Court to adequately rule on summary judgment at this juncture. Accordingly, the Court will RESERVE JUDGMENT on Iverson's motion for summary judgment on Count II pending further discovery.
In conclusion, the Court DISMISSES Counts I, III, and IV of the Complaint with prejudice, DENIES Defendant Iverson's Motion to Dismiss Count II, and RESERVES JUDGMENT on Defendant Iverson's Motion for Summary Judgment on Count III of the Complaint.
It is so ORDERED.
NOTES
[1] The Court notes that Defendant Johnson & Johnson has no interest in the Court's dismissal of Count I of the Complaint, as it is being asserted only against Defendant Iverson. However, since the Court has granted Defendant Iverson's motion to dismiss this Count of the Complaint, the Court will also consider Defendant Johnson & Johnson's request to dismiss this Count as granted.
[2] Notably, the Plaintiff does not allege that J & J's hiring of Iverson was done with an intent to deceive. It only asserts that J & J "hired Iverson and placed him in a position where he would inevitably use Dade's confidential information in the performance of his job and where this confidential information would be best utilized to Dade's detriment and [J & J's] benefit." (Compl. ¶ 68 .)
[3] The Plaintiff cannot assert a cause of action against J & J based on a breach of a fiduciary relationship because J & J is its competitor, not its employee. Furthermore, since the Plaintiff has not asserted a cause of action for unfair competition against Iverson, the Court need not decide whether Iverson himself breached a fiduciary relationship and thus committed unfair competition against Dade. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2387625/ | 98 N.J. Super. 187 (1967)
236 A.2d 605
MOE GREEN, PLAINTIFF-APPELLANT, AND JEAN GREEN, PLAINTIFF,
v.
BUCK BROTHERS CO., AND JOHN R. HAMILTON, DEFENDANTS-RESPONDENTS AND THIRD-PARTY PLAINTIFFS,
v.
ROSEMARY DAWICKI, ET AL., THIRD-PARTY DEFENDANTS.
Superior Court of New Jersey, Appellate Division.
Argued April 10, 1967.
Decided June 22, 1967.
*188 Before Judges CONFORD, FOLEY and LEONARD.
Mr. Julius B. Poppinga for plaintiff-appellant, Moe Green (Messrs. Seaman, Williams & Seaman, attorneys, Mr. Peter W. Tredick, on the brief).
*189 Mr. Daniel K. Van Dorn for defendants-respondents, Buck Brothers Co., and John R. Hamilton (Messrs. Mead, Gleeson, Hansen & Pantages, attorneys, Mr. John A. Gleeson, of counsel).
The opinion of the court was delivered by LEONARD, J.A.D.
A jury verdict of $30,000 was returned in favor of plaintiff Moe Green in his personal injury suit arising out of an automobile collision. Plaintiff, contending the verdict is grossly inadequate and the result of trial error affecting damages, appeals from the judgment entered on this verdict and from the trial court's denial of his motion to set aside the verdict and grant a new trial solely as to damages.
The accident occurred November 6, 1964 when the automobile operated by plaintiff was struck in the rear by a truck owned by defendant Buck Brothers Co. and driven by defendant John R. Hamilton. Defendants' liability has been established and is not presently involved; the only question being the adequacy of the damages awarded to plaintiff.
Plaintiff contends the trial court committed reversible error (1) in excluding evidence as to his future loss of earnings because of allegedly deficient answers to interrogatories and (2) in denying his motion for a new trial on the issue of damages.
Plaintiff was 47 years old at the time of the accident. Since 1962 he and one of his sons were the proprietors and operators of a luncheonette, attending to the business on alternate shifts. Additionally, plaintiff for the past five summers had operated a snack bar concession at a swim club. Plaintiff testified that prior to the accident he worked at the luncheonette, as much as twelve hours a day on occasions, seven days a week, performing all types of laborious and heavy tasks. He further testified that subsequent to the collision he could only take cash; "at best" he could work only two and a half to three hours a day for four or five consecutive days; and he doubted that he was rendering *190 any service to the business. He also stated that he was unable to open the swim club concession in the summer of 1965.
The pertinent interrogatories propounded by defendant and plaintiff's answers follow:
"10. (a) If employed at the time of incident or occurrence, state: (1) The name and address of the employer; (2) Position held and nature of work performed; (3) Average weekly wages for past year; (4) Period of time lost from employment, giving dates; (5) Amount of wages lost, if any.
Plaintiff was not an employee. He operated his own businesses.
(b) Set forth your net earnings, income or profits as reported in your Federal Income Tax Return for each of the five (5) years preceeding [sic] the date of filing this complaint.
1964 $4,779.77 1962 $1,389.00
1963 $4,884.81
11. If other loss of income, profit or earnings is claimed: (a) State total amount of said loss; (b) Give a complete detailed computation of said loss; (c) State nature and source of loss of such income, profit and earnings and date of deprivation thereof.
Plaintiff will be unable to return to his business operations; he will be compelled to sell his business; at a loss the amount of which is undetermined at the time of this answer; agents thus far have been unable to find a buyer.
12. If there has been a return to employment or occupation, state: (a) Name and address of present employer; (b) Position held and nature of work performed; (c) Present weekly wages, earnings, income or profit.
Still incapacitated."
Thereafter plaintiff's counsel by letter advised counsel for the defendants that "Of course, loss of earnings continues with no prospect of Green returning to any wage earning activity."
At the trial plaintiff testified that he had filed income tax returns for the years of 1962, 1963 and 1964 which were made available to defendants. Apparently referring to these returns, plaintiff was then asked, "Which shows that your earnings for ____." At this point counsel for defendants interposed an objection and there followed a lengthy colloquy *191 between the court and counsel at the conclusion of which the court sustained the objection. Thus plaintiff's counsel never completed the question and no answer was made thereto.
The court, relying upon Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 277-279 (1949), sustained defendants' objection upon the primary basis that plaintiff in no event was entitled to adduce proof as to loss of earnings. The cited case holds that the profits of a business do not represent the operator's personal earning capacity where there is involved investment of substantial capital or where the individual is engaged with others. The second basis for the court's ruling was that plaintiff had failed to "separately and fully" answer defendants' interrogatories.
As to the second ground we conclude that the trial court exercised its discretion mistakenly in cutting off the question as to plaintiff's past earnings and in excluding plaintiff's answer thereto. Enough information had been given in answer to the interrogatories, although sparse, and in the foregoing letter from plaintiff's counsel prior to trial, to apprise the defendant that plaintiff claimed he would suffer losses in his future earnings by reason of the fact that he was physically unable to resume his former business activities and that such future losses would approximate what plaintiff had been able to earn when able-bodied. In spite of this, plaintiff was prevented from submitting his proofs on the amount of such losses. The precise amount of such future losses was necessarily indefinite and could hardly have been formulated by plaintiff more definitely than he did by stating past earnings in the answers to interrogatories and by the contents of the letter from counsel.
In view of the substantial physical disability which the jury could find to have been proximately caused by this accident, and the probability of consequent substantial future financial loss to plaintiff in not being able to pursue his occupation one which depended on physical effort plaintiff was seriously aggrieved by this ruling. Consonant therewith *192 the court did not charge the jury that plaintiff could recover for future loss of earnings.
As to the exclusion of the proof on the basis of the Woschenko rule, supra, the applicability of that case seems tenuous at best. This was a small business and the tendered proof of lost earnings was as to those of plaintiff personally rather than of the business. In any event, proper evaluation of the applicability of the rule could only be made after plaintiff was given an opportunity to fully develop his proof with respect to his alleged losses. Although some discussion was had between plaintiff's counsel and the court as to a proffer of proof which plaintiff intended to present on this issue, the record does not reveal that an actual proffer of this evidence was made.
We consider next the denial of plaintiff's motion for a new trial as to damages. Although there was defense medical proof that plaintiff's present disability was partly attributable to prior diabetes and related diseases, the overwhelming weight of the medical proof as a whole was that the injury from the accident caused an orthopedic back condition which in turn required surgery with consequences ultimately producing 100 percent disability or close thereto, of a permanent or prospectively long duration.
A physical injury operating on an individual's previously impaired physical organism renders the tortfeasor who caused the injury liable for damages for the whole resulting disability of the individual notwithstanding the fact that the impairment is greater than it would have been had it not been for the previous condition. See Dalton v. Gesser, 72 N.J. Super. 100, pp. 114-115 (App. Div. 1962).
Considering the above, and also having in mind the amount of plaintiff's medical expenses ($9,748), we are of the opinion that the $30,000 verdict was low.
Ordinarily even though we might consider the verdict to be low in relation to the physical injury, pain and suffering, permanency of the injury and medical expenses we would not be inclined to disturb the trial court's order refusing *193 a new trial insofar as those elements of damage are concerned. Coll v. Sherry, 29 N.J. 166, 173 (1959). However, having determined here that the exclusion of plaintiff's testimony as to loss of future earnings precluded the jury from considering that substantial component of plaintiff's alleged damages, the added circumstance of the low award for physical injury, etc. leads us to conclude that a new trial should be held limited to the issue of damages. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 88 (App. Div. 1961); R.R. 1:5-3(b). See Fisch v. Manger, 24 N.J. 66, 80 (1957).
In view of this determination, we do not find it necessary to consider plaintiff's other grounds of appeal.
Reversed and remanded to the trial court for a new trial on the issue of the quantum of plaintiff's damages.
FOLEY, J.A.D. (dissenting).
I am unwilling to say that the trial judge exceeded his discretion in limiting plaintiff's proofs on the issue of future loss of earnings, particularly since the answers to interrogatories on this subject were admittedly unresponsive and inadequate. This appears to be the ground of reversal relied upon by the majority, which indicates that but for the exclusion of the proof in question it would not be inclined to disturb the verdict rendered.
Therefore, I would affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2387853/ | 457 F. Supp. 2d 668 (2006)
SYNTHON IP, INC., Plaintiff,
v.
PFIZER, INC., Defendant.
No. CIV.A. 1:05CV1267.
United States District Court, E.D. Virginia. Alexandria Division.
October 10, 2006.
*669 Jonathan Garwood Graves, Cooley Godward LLP, Reston, VA, for Plaintiff.
John F. Anderson, Troutman Sanders LLP, McLean, VA, for Defendant.
MEMORANDUM OPINION
ELLIS, District Judge.
Following extensive briefing and oral argument in this patent infringement case, preliminary claim construction determinations issued pursuant to Markman v. Westview Instruments, 517 U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996). The facts and reasons in support of these determinations were recorded in a Memorandum Opinion dated June 30, 2006. See Synthon IP, Inc. v. Pfizer, Inc., 446 F. Supp. 2d 497 (E.D.Va.2006) (Synthon I). Predictably, and as anticipated, Synthon sought reconsideration, believing its ox to be gored by one of these determinations. This led to yet another round of briefing and argument. Thereafter, the matter proceeded to trial on the basis of two alternative definitions for the primary claim phrase in dispute, one of which was a derivative of the preliminary definition set forth in Synthon I, while the second was essentially Synthon's preferred candidate. The seven-day trial that followed culminated in a jury verdict for Pfizer on all remaining infringement and validity issues under both alternative claim phrase definitions. The purpose of this post-verdict Markman opinion is to address several arguments raised by Synthon in the supplemental Markman briefing and argument that followed Synthon I, and to make clear for the record the final claim construction definitions applicable to this case.
I.
The facts of the case, as well as a description of the relevant patents and claims, are fully documented in Synthon I and need not be repeated here. Instead, it suffices here to describe briefly the remaining patent in issue, namely U.S. Patent No. 6,653,481 (the '481 patent), a 24claim process patent relating to a process for making amlodipine, the active ingredient in Pfizer's well-known hypertension drug Norvasc®.[1] In this regard, the '481 patent relates, in part, to a chemical compound referred to in the patent and its file history as "the compound of formula (3)," *670 an organic compound that is integral to the process of producing amlodipine
As the '481 patent teaches, the compound of formula (3) may be produced by reacting two starting materialsone an ester or ketoester, and the other an aldehydein a solvent, such as isopropanol, in the presence of a catalyst, such as piperidine. This chemical reaction creates a "crude reaction mixture" containing the compound of formula (3). The next step in the process is to "isolate" from the crude reaction mixture the compound of formula (3). The '481 patent then requires that "the isolated compound of formula (3)" be reacted with another organic compound an aminocrotonateto form the compound of formula (2), otherwise referred to as the phthalimidoamlodipine. The compound of formula (2) is a protected amlodipine compound that is essentially identical to the amlodipine compound itself, except that it also contains a phthalimide protecting group. The '481 patent further teaches that the phthalimide protecting group is ultimately removed from the compound of formula (2) by using a deprotecting agent, thereby resulting in the formation of the final amlodipine compound.
Particularly pertinent here is the '481 patent's disclosure in claim 1, the sole independent claim, of "[a] process, which comprises isolating from a crude reaction mixture compound of formula (3)," and then "reacting said isolated compound of formula (3) with an alkyl 3-aminocrotonate of formula B." '481 Patent, col. 25, ll. 50-51; col. 26, ll. 1-2. This specific claim language is the source of the parties' claim term definition disputes. Specifically, the parties initially disputed the meaning of (i) "crude reaction mixture;" (ii) "isolating;" (iii) "isolating from a crude reaction mixture compound of formula (3);" and (iv) "isolated compound of formula (3)."[2] As Synthon I reflects, application of the legal principles taught in Markman and its progeny to the intrinsic evidence resulted in the adoption of preliminary definitions for each of the disputed terms and phrases. These preliminary definitions, discussed in detail in Synthon I, were as follows:
(i) "crude reaction mixture" means "a mixture of a chemical reaction, including the compound of formula (3) and any unreacted starting materials or side products or any catalysts or solvent;"
(ii) "isolating" means "separating," generally;
(iii) "isolating from a crude reaction mixture compound of formula (3)" means "separating the compound of formula (3) from the other components of the crude reaction mixture, except that some amount of impurities, including residual amounts of the other components of the crude reaction mixture, may remain following the act of separation;" and
(iv) "isolated compound of formula (3)" means "the compound of formula (3) that has been separated from the other components of the crude reaction mixture, except that some amount of impurities, including residual amounts of the other components of the crude reaction mixture, may remain following the act of separation."
See Synthon I, 446 F.Supp.2d at 508, 512.
As noted, the trial proceeded under two alternative definitions for the primary disputed claim phrase, specifically the phrase "isolating from a crude reaction mixture compound of formula (3)." In this regard, the first of these alternative definitions *671 was initially to be the preliminary definition set forth in Synthon I, while the second alternative definition was identified as follows:
"separating the compound of formula (3) from the crude reaction mixture, except that this does not require that the compound of formula (3) be separated from all of the components of the crude reaction mixture or that the compound of formula (3) be completely pure."
See Synthon IP, Inc. v. Pfizer, Inc., 446 F. Supp. 2d 497 (E.D.Va.2006) (Order). Thereafter, however, in the course of a final pretrial conference on August 3, 2006, the first alternative definition for the phrase "isolating from a crude reaction mixture compound of formula (3)"that is, the definition set forth in Synthon Iwas clarified and amended in several minor respects to read as follows:
"separating the compound of formula (3) from the other known components of the crude reaction mixture, except that following the act of separation, the resulting compound of formula (3) need not be pure; it may contain known and unknown impurities, unknown side products, as well as residual amounts of the other known components of the crude reaction mixture."
See Synthon IP, Inc. v. Pfizer, Inc., Civil Action No. 1:05cv1267 (E.D.Va. Aug. 3, 2006) (Order).[3] One additional minor modification was made to the first alternative definition prior to the jury trial in this matter,[4] resulting in the following two alternative definitions being presented to the jury for separate consideration on each issue of infringement and validity remaining in the case:
Alternative Definiticm # 1
"separating the compound of formula (3) from the other known components of the crude reaction mixture, except that following the act of separation, the resulting compound of formula (3) need not be pure; there may be present known and unknown impurities, unknown side products, as well as residual amounts of the other known components of the crude reaction mixture;" and
Alternative Definition # 2
"separating the compound of formula (3) from the crude reaction mixture, except that this does not require that the compound of formula (3) be separated from all of the components of the crude reaction mixture or that the compound of formula (3) be pure."
As noted, the ensuing seven-day jury trial culminated in a jury verdict for Pfizer on all remaining infringement and validity issues under both of the alternative definitions for the disputed claim phrase "isolating from a crude reaction mixture compound of formula (3)."[5] This post-verdict Markman opinion now addresses several *672 arguments raised by Synthon in a supplemental claim construction brief filed following issuance of Synthon I, but before commencement of the jury trial, and makes clear for the record the final claim construction definitions applicable to this case.
II.
Because the parties do not dispute the legal principles cited and relied on in Synthon I, it is unnecessary to do more here than to adopt and incorporate those principles by reference. See Synthon I, 446 F.Supp.2d at 502-507. The essential dispute between the parties continues to focus on the meaning of the claim phrase "isolating from a crude reaction mixture compound of formula (3)." In this regard, Synthon continues to oppose, as it has from the outset, the argument offered by Pfizer and adopted in Synthon I that isolating the compound of formula (3) from the crude reaction mixture necessarily involves separating the compound of formula (3) from the other known components of the crude reaction mixture, as required by Alternative Definition # 1. Instead, Synthon contends that subjecting the crude reaction mixture to a "phase separation where two layers emerge" and then pouring off or decanting "the upper isopropanolic layer," leaving behind an oily layer containing the compound of formula (3) is sufficient to meet the isolation requirement of the patent claims in issue. Yet, as in the initial round of briefing and argument, Synthon is clearly mistaken in this regard, for the intrinsic evidence points persuasively to the claim construction set forth in Alternative Definition #1. In other words, a careful review of the claims, the specification and the prosecution history teaches that isolating the compound of formula (3) from the crude reaction mixture necessarily involves separating the compound of formula (3) from the other known components of the crude reaction mixture, with some impurities, unknown side products and residual amounts of the other known components of the crude reaction mixture permitted to remain following the act of isolation. Thus, removal of only one of the other known components of the crude reaction mixture, i.e. the solvent, is not sufficient to isolate the compound of formula (3) from the crude reaction mixture.
Indeed, as explained in Synthon I, Alternative Definition # 1 derives first from the plain language of the claims themselves. To begin, claim 1 of the '481 patent describes a process that begins with "isolating from a crude reaction mixture compound of formula (3)." This statement, standing on its own, plainly refers to separating the compound of formula (3) from the crude reaction mixture. Significantly, the claim language teaches that it is the compound of formula (3) that is to be separated from the crude reaction mixture; the claim language does not teach separating the solvent or any component other than the compound of formula (3) from the crude reaction mixture. Nor does the claim language refer to separating the compound of formula (3) from only a single component of the crude reaction mixture, such as the solvent. Instead, the plain language of the patent requires that the compound of formula (3) itself be separated from the crude reaction mixture, namely from the other components of the crude reaction mixture. In other words, were the compound of formula (3) left in a mixture with the other components of the crude reaction mixturewith the exception of any permissible amounts of impuritiesit would not be isolated from the crude reaction mixture as required by claim 1 of the '481 patent.
The specification also makes clear that the isolating step must involve more than *673 removing the solvent from the crude reaction mixture, as it expressly states that "[t]he solvent should be one in which the compound (3) product is only sparingly soluble, so that it may be separated from the rest of the unreacted starting materials and also from any potential side products." '481 Patent Specification, col. 6, ll. 22-25 (emphasis added). The specification further provides that
[p]referably the compound (3) oil is recovered and used directly without further purification to form phthalimidoamlodipine as such oil contained only minor amounts of impurities and the remaining starting materials can be easily removed. Recovery can be by any known technique and is typically accomplished by a liquid-liquid phase separation optionally with washing of the oil product. It should be understood that such washing is not intended to be considered a `purification step,' but rather merely part of the recovery.
'481 Patent Specification, col. 6, ll. 34-43 (emphasis added). Moreover, the specification summarizes the claimed process by recognizing that "the use of the compound (3) of our invention... allows for a reduction in side products by producing a stable intermediate that is easily separable from the rest of the reactive starting materials, thereby reducing the chance of side effects in subsequent reaction steps." '481 Patent Specification, col. 8, 11. 53-61 (emphasis added). Given these statements in the specification acknowledging removal of the starting materials and other side products, it is clear that merely pouring off from the crude reaction mixture a single layer of solvent, which Synthon contends is sufficient to meet the requirement of isolating, does not serve to separate the compound of formula (3) from the other components of the crude reaction mixture; rather, as illustrated above, this suggested step only serves to separate or isolate most of the solventtypically isopropanolfrom the crude reaction mixture, which mixture still contains the compound of formula (3).
Alternative Definition # 1 is also consistent with the patent's prosecution history. Thus, the '481 file wrapper reflects that the original process claims of the '481 patent did not include the phrases "isolating from a crude reaction mixture" or "isolated compound of formula (3)." In fact, in February 2003, the patent examiner rejected Synthon's asserted claim 18which ultimately matured into claim 1 of the '481 patentas being anticipated by the prior art on the basis that the compound of formula (3) would be formed during the reaction steps of a prior art reference, namely U.S. Patent No. 4,572,909, a twenty-year old patent owned by Pfizer relating to the pharmaceutical compound amlodipine. To overcome this rejection, Synthon amended its application claim 18 to include the step of "isolating from a crude reaction mixture compound of formula (3)."[6] Significantly, this amendment served to distinguish *674 the claimed process from the prior art by making clear that the compound of formula (3) is required to be separated from the other components of the crude reaction mixture prior to the next step of the claimed process.
Likewise, in the course of the prosecution of the derivative 738 patent, the patent examiner rejected application claim 2 for indefiniteness, noting that it was a "substantial duplicate" of claim 1 in that it did not "limit the compounds" of claim 1. In this regard, while application claim 1 covered "a compound having the formula (3)," application claim 2 covered the compound of claim 1 in "isolated form." In response to this preliminary indefiniteness rejection, the applicants stated the following:
Claim 1 [of the '738 patent'] is directed to a compound per se. Accordingly it reads on the isolated, purified compound itself as well as the compound in compositions/mixtures with other ingredients. That is, claim 1 is not avoided simply because the compound of formula (3) is contained in a mixture with other compounds. Certainly any composition that contained the compound of formula (3) falls within the scope of claim 1. In contrast, claim 2 requires the compound of formula (3) to be in isolated form. A composition that contains a compound of formula (3) and, e.g., phthalimidoamlodipine of formula (2) would avoid claim 2, but not claim 1. Claim 2 is not a substantial duplicate of claim 1. Indeed, there is no reason to read claim 1 as requiring the compound of formula (3) to be in isolated form. Therefore, claim 2 is a proper dependent claim of clear and definite scope.
In other words, and of particular significance here, Synthon explained to the patent examiner that the "isolated form" asserted in application claim 2 of the '738 patent would not cover the compound of formula (3) if it was "contained in a mixture with other compounds" or "in compositions/mixtures with other ingredients."[7] This statement essentially amounts to an admission by Synthon that the compound of formula (3) is not "isolated" within the meaning of the relevant patent claims if it is still contained in a mixture with other ingredients or compounds. In other words, this admission made in the course of the patent's prosecution is wholly inconsistent with Synthon's proposed construction of the disputed claim phrase and fully consistent with the definition set forth in Synthon I, later modified to form Alternative Definition # 1.
Now, in its motion for reconsideration, Synthon reasserts several arguments that were already addressed and rejected in Synthon I, the primary one being that none of the examples set forth in the '481 patent specification support Alternative Definition # 1. This fact, however, was already acknowledged in Synthon I, where it was noted that "none of the examples set forth in the specification specifically mention the isolating step or the isolation process." See Synthon I, 446 F.Supp.2d at 514. It was also noted in Synthon I that "only 3 of the 13 examples set forth in the specification even arguably pertain to isolating the compound of formula (3) from the crude reaction mixture, despite the centrality of this particular step in the claimed inventions." See id. at 514.[8] And *675 significantly, all of these examples refer only to "the organic layer containing the desired product," rather than to the "isolated form" of the compound of formula (3), i.e., the "desired product" itself.
As previously explained in Synthon I, this absence in the applicable examples of any specific treatment or discussion of isolation of the compound of formula (3) is not surprising in the circumstances given (i) that the "isolating" requirement was added to the claims in issue in the course of the patent's prosecution, see supra, and (ii) that the original specification and examples submitted to the Patent and Trademark Office (PTO) in Synthon's initial application were not changed, modified or updated in any respect following the "isolating" amendments, presumably to protect the applicant's priority date. For all of these reasons, it remains clear, as noted in Synthon I, that the relevant examples set forth in the patent's specification are not particularly instructive or illuminating as to the meaning of the phrase "isolating from a crude reaction mixture compound of formula (3)" given that Synthon's original application claims did not require the compound of formula (3) to be isolated from the crude reaction mixture.
Yet now, in an attempt to avoid the result in Synthon I, and hence application of Alternative Definition # 1, Synthon raises several new arguments in its motion for reconsideration that were not previously addressed in Synthon I. In this regard, Synthon first argues that the inventors contemplated from the outsetat the time the original patent application was filed that the compound of formula (3) would be isolated from the crude reaction mixture and thus that the examples set forth in the original specification must be read as addressing the meaning of the phrase "isolating from a crude reaction mixture compound of formula (3)." In support of this new argument, Synthon claims that the word "isolated" was present in an originally-filed claim directed at the compound of formula (3) itself. Yet, a review of the prosecution history discloses that Synthon is clearly mistaken in this regard.
To be sure, Synthon correctly notes that the original patent applicationApplication No. 09/809,351 (the '351 application) was filed with the Patent and Trademark Office (PTO) on March 16, 2001. This application contained not only process claims, but also additional claims directed to the compound of formula (3) itself. In the course of the prosecution history, however, the patent examiner, issued a restriction requirement requiring the applicants to split the originally-filed claims into multiple applications, all with a common specification. Thus, original application claims 18-34 of the '351 application were pursued first, ultimately maturing into the '481 process patent. Original application claims 1-17, in turn, were prosecuted at a later date and ultimately matured into the '738 derivative compound patent. Given their provenance, both patents share the identical specification.
Synthon's recitation of the prosecution history is correct in these preliminary respects, but then goes awry in contending that application claim 2, as originally filed in the '351 application, included the term "isolated" in connection with the compound of formula (3). Specifically, Synthon claims that original application claim 2 described "[t]he compound according to claim 1, wherein said compound is in isolated *676 form." The record flatly refutes this contention; application claim 2, at the time the '351 application was originally filed, claimed something entirely different, namely "[t]he compound according to claim 1 in the form of an oil." And significantly, not a single claim in the entire original application was directed to the isolated form of the compound of formula (3). Indeed, it was not until August 27, 2001, when Synthon submitted a continuing-in-part application, that the claim that ultimately matured into claim 2 of the '738 derivative compound patent was added to the application, specifically "[t]he compound according to claim 1, wherein said compound is in isolated form." Indeed, the record reflects that prior to that amended application in August 2001, the isolation requirement for the compound of formula (3) appeared nowhere in the asserted claims.[9] This notable absence therefore casts significant doubt on Synthon's current position that the examples in the specification should be read as addressing the isolating step because the inventors contemplated isolating the compound of formula (3) from the crude reaction mixture from the outset, at the time the original patent application was filed.
In its motion for reconsideration, Synthon also argues that the "oily layer" referenced in the relevant specification examples [10] is, in fact, "the compound of formula (3) in isolated form." In other words, Synthon now contends that subjecting the crude reaction mixture to a "phase separation where two layers emerge" and then pouring off or decanting "the upper isopropanolic layer," leaving behind an oily layer containing the compound of formula (3) is equivalent to isolating the compound of formula (3) from the crude reaction mixture, as required by the claims in issue. The problem with this proposed construction, however, is that it would essentially deprive the "isolating" requirement of any significant meaning, as the oily layer undeniably contains all of the known components of the original crude reaction mixture with the exception of most of the solvent or isopropanol. Such a construction is thus contrary to the specification and the prosecution history, both of which teach that the compound of formula (3) is separated from the starting materials and side products during the isolation process and cannot remain in a mixture with other compounds or ingredients following the act of isolation, with the exception of various "known and unknown impurities, unknown side products, as well as residual amounts of the other known components of the crude reaction mixture." See supra, Alternative Definition # 1.
In support of its argument that the oily layer containing the compound of formula (3) described in the relevant examples of the patent specification constitutes the "isolated compound of formula (3)," Synthon relies, in part, on a declaration submitted by the named inventors in the course of the prosecution history. Specifically, in September 2002, the patent examiner rejected Synthon's asserted application claim 18 as being anticipated by a Russian prior art reference, namely the RU 21611156 patent. To overcome that anticipation rejection, Synthon submitted a *677 "Rule 131 declaration" from the named inventors in order to establish an earlier invention date and thus "swear behind" the publication date of RU 21611156.[11] As required by the applicable federal regulations, the inventors' Rule 131 declaration referred only to rejected application claim 18. And significantly, the Rule 131 declaration was signed by the inventors before application claim 18 was officially amended to add the "isolating" requirement. Indeed, the Rule 131 declaration was signed by the inventors between February 4 and 6, 2003, while Synthon did not file the amendment papers adding the "isolating" requirement to the claims in issue until February 10, 2003. For this reason, it is not surprising that the Rule 131 declaration nowhere explicitly refers to isolating the compound of formula (3); instead, similar to the original application claims, the declaration refers only to isolating the compound of formula (2).
To be sure, the Rule 131 declaration provides that an experiment was performed by the named inventors of the '481 patent in the Czech Republic prior to the critical date applicable to RU 21611156. That experiment, according to the inventors, involved a "two-step reaction scheme," whereby in the first step, two starting materials are reacted to form an intermediate compoundthe compound of formula (3)and in the second step, "the formed intermediate... is reacted with methyl-3-aminocrotonate" to form an additional compoundthe compound of formula (2)elsewhere referred to as the phthalodipine or phthalimidoamlodipine. Nowhere in the Rule 131 declaration do the named inventors acknowledge that the intermediate compound of formula (3) is "isolated" prior to its reaction with the aminocrotonate. And this absence of any reference to isolating the compound of formula (3) does not appear to be inadvertent or insignificant, for the Rule 131 declaration does expressly mention isolating with respect to the compound of formula (2).[12] It follows, therefore, that if isolation of the compound of formula (3) was intended to be part of the claimed process from the outset, as Synthon unpersuasively argues in its motion for reconsideration, then such an isolation step would likewise have been expressly mentioned in the Rule 131 declaration. It was not.
But this does not end the analysis, for Synthon offers one final argument in support of its assertion that the isolated form of the compound of formula (3) required by the claims in issue is the "oily layer" left behind following removal of the solvent from the crude reaction mixture. Specifically, Synthon points to a statement made by its prosecuting attorney in certain submissions filed with the patent examiner contemporaneously with the Rule 131 declaration that "[t]he invention, including the isolation of a compound of formula (3) (as an oil layer) and reacting it with an alkyl 3-aminocrotonate to successfully form a compound of formula (2), was performed in the Czech Republic" by the named inventors before the publication date of RU 21611156. While this single statement made by the prosecuting attorney arguably supports Synthon's assertion that the "oily layer" containing the compound of formula (3) constitutes the "isolated form" *678 of the compound of formula (3), this does not alter the mtical fact that there is no reference whatsoever to isolating the compound of formula (3) in the Rule 131 declaration itself, either as an oily layer or otherwise. Moreover, it is clear that a prosecuting lawyer's statement made in the course of the prosecution history cannot broaden the requirements of the actual patent claims themselves. See Biogen v. Berlex, 318 F.3d 1132, 1140 (Fed.Cir.2003) (recognizing that "[r]epresentations during prosecution cannot enlarge the content of the specification"). Put differently, this single statement made by the prosecuting attorney cannot serve to make the "oily layer" containing the compound of formula (3)which layer is without question still a mixture of all of the known components of the crude reaction mixture with the exception of the majority of the solventthe "isolated form" of the compound of formula (3) required by claim 1 of the '481 patent. Indeed, it was the very same prosecuting attorney who later told the patent examiner, in order to overcome a preliminary indefiniteness rejection, that the compound of formula (3) would not be isolated within the meaning of the asserted claims if it was "contained in a mixture with other compounds" or "in compositions/mixtures with other ingredients." See supra, pp. 8-10.
III.
In the end, all of Synthon's arguments against application of Alternative Definition # 1, including those asserted both before and after issuance of Synthon I, are unpersuasive. Rather, a careful review of the intrinsic evidence compels the conclusion that Alternative Definition # 1 is the appropriate and final definition applicable to the disputed claim phrase "isolating from a crude reaction mixture compound of formula (3)." This final definition requires that the compound of formula (3) be separated from the other known components of the crude reaction mixture, with the understanding that following the act of separation, the resulting compound of formula (3) need not be pure, as there may be present (i) known and unknown impurities, (ii) unknown side products, as well as (iii) residual amounts of the other known components of the crude reaction mixture. Corresponding definitions for the related disputed claims terms and phrases naturally flow from this final definition.
An appropriate order will issue setting forth the final definitions applicable to the disputed claim phrases in issue, including the definition provided to the jury as Alternative Definition # 1.
NOTES
[1] By Order dated August 31, 2006, Synthon's claims of infringement related to a derivative compound patentU.S. Patent No. 6,858,738 (the '738 patent)were dismissed with prejudice. See Synthon IP, Inc. v. Pfizer, Inc., Civil Action No. 1:05cv1267 (E.D.Va. Aug. 31, 2006) (Order).
[2] Although the parties also originally disputed a related claim phrase used in the derivative '738 compound patent, that patent has since been dismissed with prejudice from the litigation and thus need not be addressed here. See supra n. 1.
[3] These modifications were prompted primarily by Synthon's argument that the chemical reactions used in synthesizing compounds typically result in the formation of various unknown side products and unknown impurities and thus, it might prove impossible to determine whether in the course of the isolation step the compound of formula (3) had been separated from all of the side products that might be present in the crude reaction mixture.
[4] Specifically, the phrase "it may contain," appearing after the semi-colon in the first alternative definition, was amended to read "there may be present."
[5] The 17-page special verdict form was divided into four separate sections, namely (i) infringement under Alternative Definition # 1, (ii) infringement under Alternative Definition # 2, (iii) validity under Alternative Definition # 1, and (iv) validity under Alternative Definition # 2. Only literal infringement was in issue.
[6] In this regard, Synthon's original application claim 18prior to the addition of the "isolating" requirementsimply claimed "[a] process, which comprises reacting a compound of formula (3)... with an alkyl 3-aminocrotonate of formula B...to form a compound of formula (2)." Significantly, this form of application claim 18 was rejected by the patent examiner as being anticipated by the prior art, in that the compound of formula (3) referenced in application claim 18 would be formed during the reaction steps of Pfizer's '909 patent. Synthon thereafter amended its application claim 18 to cover "[a] process, which comprises isolating from a crude reaction mixture a compound of formula (3).. .and reacting said isolated compound of formula (3) with an alkyl 3-aminocrotonate of formula B... to form a compound of formula (2)." (Emphasis added). And, in its supporting amendment papers, Synthon noted, inter alia, that "[s]uch an isolation step is not taught or suggested in.. .[the] '909 [patent]."
[7] Following the applicant's clarification in this regard, the patent examiner withdrew the earlier indefiniteness rejection and allowed application claim 2 of the '738 patent.
[8] Consistent with the parties' initial assertions, Synthon I noted that only 3 of the 13 examples set forth in the '481 patent specification specifically relate to the formation and alleged isolation of the compound of formula (3), namely examples 1, 1A and 4. Although example 12 also addresses the compound of formula (3) to a limited extent, that example is explicitly directed to the compound of formula (2) and contains no additional information or explanation material to the result reached here.
[9] The only claims of the original '351 application that used the term "isolating" were directed at "isolating" the compound of formula (2)the phthalimidoamlodipineas opposed to the compound of formula (3).
[10] None of the examples actually use the precise term "oily layer," as argued by Synthon; rather, Examples 1 and 4 reference an "organic layer, containing the desired product," Example 1A refers to "an oil" or "gum like solid," and Example 12 simply references "an oil."
[11] Title 37 C.F.R. 1.131 provides that "[w]hen any claim of an application... is rejected, the inventor of the subject matter of the rejected claim... may submit an appropriate oath or declaration to establish invention of the subject matter of the rejected claim prior to the effective date of the reference."
[12] Specifically, the Rule 131 declaration provides, in pertinent part, that "the yield of phthalodipine, after isolation of the product as crystals, is reported as 12.27 g. (47.2% of theoretical yield)." (Emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240384/ | 237 F.2d 243
Carl Harvey BISTRAM, Appellant,v.UNITED STATES of America, Appellee.Carl Harvey BISTRAM, Appellant,v.UNITED STATES of America, Appellee.
No. 15594.
No. 15595.
United States Court of Appeals Eighth Circuit.
October 18, 1956.
Carl Harvey Bistram, pro se.
Robert Vogel, U. S. Atty., Fargo, N. D., on the brief for appellee in Case No. 15,594, and on Petition to Remand in Case No. 15,595.
Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.
GARDNER, Chief Judge.
1
Appellant, with two others, was charged by indictment with the commission of the crime of kidnapping as defined by Section 1201(a), Title 18, U.S.C. The indictment so far as here material reads as follows:
2
"That on or about the 6th day of June, 1949, one Arthur Earl Bistram, one Carl Harvey Bistram and one Allen Chester Hartman, hereinafter designated as the defendants, knowingly transported in interstate commerce from Mandan, State and District of North Dakota, to the vicinity of Laurel, State and District of Nebraska, one Ralph Alex Senn who had theretofore been unlawfully seized, abducted and kidnaped, carried away and held by said defendants for the purpose of aiding said defendants to escape arrest."
3
Each of the defendants was represented by his own counsel and each entered a plea of guilty. On October 28, 1949, pursuant to his plea of guilty appellant was sentenced to thirty years imprisonment. The record discloses that the victim of the kidnapping charge was a Mandan, North Dakota policeman and that in connection with the kidnapping of the policeman his automobile was stolen and that he was transported in successive stolen automobiles from Mandan, North Dakota to the vicinity of Laurel, Nebraska and the named defendants were, in addition to being charged with kidnapping, indicted for violation of the Dyer Act, 18 U.S.C. §§ 10, 2311-2313, to which charge each of the defendants entered a plea of guilty. Sentences imposed on pleas of guilty to violations of the Dyer Act were made to run concurrently with the sentences imposed under the indictment charging kidnapping in the instant case and are not here involved.
4
On February 20, 1956, appellant filed a motion to vacate and set aside the judgment on the ground that the sentencing court lacked jurisdiction in that the indictment failed to charge that the appellant did not come within the exception clause set out in paragraph (a), Section 1201, Title 18, U.S.C., viz. "except, in the case of a minor, by a parent thereof". The motion was overruled and appellant has appealed from the order overruling his motion and this is the subject of appeal numbered 15,594. He seeks reversal on substantially the following ground: An indictment charging violation of Title 18 U.S.C., Section 1201(a) which fails to negative the exception in the statute which excludes a parent from operation of the statute is so defective as to require a conviction under the indictment to be vacated on motion pursuant to Title 28 U.S.C. § 2255.
5
Section 1201(a), Title 18, U.S.C., under which the indictment in the instant case was drawn provides as follows:
6
"Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."
7
It is contended that the omission from the indictment of the words, "except, in the case of a minor, by a parent thereof," rendered the indictment fatally defective. If the words constituting the exception were omitted from the statute the crime of kidnapping would still be fully defined. The court had jurisdiction of the crime, the elements of which were fully defined, and it also had jurisdiction of the appellant. The generally accepted rule is that the exception need not be negatived unless it is an essential element in the statutory definition of the crime. McKelvey v. United States, 260 U.S. 353, 43 S. Ct. 132, 67 L. Ed. 301; Seele v. United States, 8 Cir., 133 F.2d 1015; Miller v. United States, 8 Cir., 123 F.2d 715; Knight v. Hudspeth, 10 Cir., 112 F.2d 137; Nicoli v. Briggs, 10 Cir., 83 F.2d 375; Rase v. United States, 6 Cir., 129 F.2d 204. In Seele v. United States, supra, we said [133 F.2d 1019]:
8
"It is now the settled rule, as declared by the Supreme Court of the United States, `that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.'"
9
It is to be noted that the appellant does not in his motion or otherwise claim that the person kidnapped was his minor child. In the absence of such a claim the argument becomes purely academic. United States v. Moore, 7 Cir., 166 F.2d 102; United States v. Bremer, 9 Cir., 207 F.2d 247, 250. In United States v. Bremer, supra, the applicable rule is thus stated: "Plainly the burden rested on the petitioner of showing or offering to show that a defense of this nature was available if in fact it was claimed to exist. In United States v. Moore, 166 F.2d 102, at page 104, the Seventh Circuit observed; `We take it that there can be no question but that when it is sought to set aside or vacate a judgment, whether by complaint in equity or by way of coram nobis or its modern equivalent, a motion to vacate, such as we have before us, no relief can be granted unless it appears that a retrial will result in a judgment different from the one sought to be vacated and that, in the absence of such a showing, the judgment will not be set aside. The reason for this rule is that if defendant has no valid defense, so that a second trial must result in an identical judgment, then no actual injury has occurred and it would be a vain and idle thing to set aside the judgment already entered.'"
10
We are of the view that the contentions of the appellant are wholly without merit and the order involved in appeal numbered 15,594 is therefore affirmed.
11
Following the denial of his first motion and on April 4, 1956, appellant interposed a second motion to vacate and set aside the judgment. In this motion he averred: (1) that his plea of guilty in this cause was coerced and obtained by threats and promises, (2) that he was deprived of effective assistance of counsel in this cause and (3) that he is innocent of the alleged crime. The court, without affording appellant a hearing and without the introduction of any testimony either in support of or in opposition to the averments contained in his motion, denied the motion. The order denying the motion contains recitals that:
12
"* * * On March 19, 1956, this Court having filed its Memorandum and Order denying a prior Motion to Vacate Sentence made by the said Carl Harvey Bistram filed on February 20, 1956, because the motion and the files and records in the matter conclusively showed that Carl Harvey Bistram was entitled to no relief as a matter of law, and the Court being of the opinion that the instant motion should be denied under Paragraph 5 of 28 U.S.C.A., Section 2255, upon the ground that it is a second or successive motion for similar relief on behalf of the said Carl Harvey Bistram, now, therefore,
13
"IT IS ORDERED That the Motion to Vacate Sentence filed by the said Carl Harvey Bistram on April 6, 1956, be, and the same hereby is, in all things denied."
14
The prior motion did not purport to raise the questions as to the alleged coercion of appellant by threats and promises nor that appellant was deprived of effective assistance of counsel nor any other question of fact. It raised only questions of law. To be sure, the relief sought by both motions was the same but the grounds upon which such relief was sought were different. With commendable frankness counsel for the government in effect confesses error, basing his conclusion largely on a recent decision of the Tenth Circuit in Barrett v. Hunter, 10 Cir., 180 F.2d 510, 515, 20 A.L.R. 2d 965. In that case the court, among other things, said:
15
"* * * If the second or successive motion sets up new or dissimilar grounds for relief which are within the purview of the grounds enumerated in the third paragraph of § 2255, and the motion and the records and files in the case do not conclusively show that the prisoner is entitled to no relief, the court should ordinarily entertain such second or successive motion. So construed, the provision conforms with the rule in habeas corpus with respect to successive applications for the writ, laid down by the Supreme Court in Salinger v. Loisel, 265 U.S. 224, 230, 232, 44 S. Ct. 519, 521, 68 L. Ed. 989 * * *." The order appealed from in case numbered 15,595 is therefore reversed and the cause remanded to the trial court with directions for further proceedings not inconsistent with this opinion. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2387826/ | 591 F. Supp. 755 (1984)
James C. BURT, M.D., Plaintiff,
v.
BLUE SHIELD OF SOUTHWEST OHIO, et al., Defendants.
No. C-3-83-55.
United States District Court, S.D. Ohio, W.D.
January 27, 1984.
*756 Dwight D. Brannon, Michael T. Tucker, Dayton, Ohio, for plaintiff.
*757 Laura G. Kuykendall, Michael J. Canter, Columbus, Ohio, for defendant Blue Shield.
Stephen M. Pfarrer, Dayton, Ohio, William J. Toppeta, New York City, for defendant Metropolitan Life.
DECISION AND ENTRY; DEFENDANT OHIO MEDICAL'S MOTIONS FOR SUMMARY JUDGMENT AND TO DISMISS SUSTAINED; DEFENDANT METROPOLITAN'S MOTION FOR SUMMARY JUDGMENT AND TO DISMISS SUSTAINED; PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT OVERRULED; CLERK TO ENTER JUDGMENT FOR DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY
RICE, District Judge.
Plaintiff James C. Burt, M.D., is a physician licensed to practice medicine in Ohio. He is a specialist in the field of gynecology and obstetrics. In the practice of his specialty, Plaintiff has developed a surgical procedure for the reconstruction of women's vaginas. The Defendants, Ohio Medical Indemnity Mutual Corporation ("Ohio Medical")[1] and Metropolitan Life Insurance Company ("Metropolitan") provide medical insurance policies to individuals and groups. Some of Plaintiff's patients are insured by one or the other of the Defendants.
In January, 1978, Defendant Ohio Medical ceased paying Plaintiff's fee for vaginal reconstructive surgery. A few months later, Defendant Metropolitan also ceased paying Plaintiff for this procedure.
As a result of the Defendants' decisions, Plaintiff initiated this action. In his complaint (Doc. # 1), Plaintiff alleges that after Ohio Medical stopped paying his fees, Metropolitan took the same action "pursuant to an agreement with [Ohio Medical] that neither Defendant would cover Plaintiff's vaginal reconstructive procedures." Complaint, ¶ 8. Since this agreement was entered into, neither Defendant has covered Plaintiff's fee for the procedure. Id. Plaintiff alleges that the agreement is an illegal restraint of trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Complaint, ¶ 9.
Plaintiff asserts five additional claims against the Defendants, individually.[2] Each of these claims is for breach of insurance contract resulting from one of the Defendants refusing to pay Plaintiff's fee for performing vaginal reconstructive surgery. In each instance, a patient of Plaintiff, who is also insured by a Defendant, has assigned her claim to Plaintiff. The Plaintiff seeks to have the Court exercise pendent jurisdiction over these claims.
This cause is now before the Court on the Defendants' motions for summary judgment and to dismiss. First, the Court will address Ohio Medical's motions. Then, the Court will turn to those of Metropolitan.
I. Motions of Ohio Medical Blue Shield of Southwest Ohio
Ohio Medical has filed a motion for summary judgment on Plaintiff's antitrust claim and a motion to dismiss the breach of insurance contract claims for lack of subject matter jurisdiction. (Doc. # 19).
A. Ohio Medical's Motion for Summary Judgment
Ohio Medical seeks summary judgment on Plaintiff's antitrust claims. In the recent case of Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir.1983); the court discussed the use of summary judgment in antitrust litigation.
It is a well established rule that motions for summary judgment are disfavored in antitrust litigation and that the standard *758 for granting summary judgment is strict. See, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 284-90, 88 S. Ct. 1575, 1590-93, 20 L. Ed. 2d 569, reh'g denied, 393 U.S. 901, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962); Smith v. Northern Michigan Hospitals, Inc., 703 F.2d 942, 947 (6th Cir.1983); Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190, 1197 (6th Cir.1982); Taylor Drug Stores, Inc. v. Associated Dry Goods Corp., 560 F.2d 211, 213 (6th Cir.1977). However, this general rule does not preclude the use of summary judgment in appropriate antitrust litigation. See, First National Bank of Arizona, supra, 391 U.S. at 288-90, 88 S. Ct. at 1592-93; Smith, supra, 703 F.2d at 947-48; Davis-Watkins Co., supra, 686 F.2d at 1197; Lupia v. Stella D'Oro Biscuit Co., Inc., 586 F.2d 1163, 1166-67 (7th Cir.1978), cert. denied, 440 U.S. 982, 99 S. Ct. 1791, 60 L. Ed. 2d 242 (1979). See also, Fed.R. Civ.P. 56 advisory committee note (1982) (Summary judgment is "inapplicable to all actions"). Indeed, the very purpose of a motion for summary judgment, to eliminate a trial where it would be unnecessary and merely result in delay and expense, warrants summary disposition of cases when appropriate.
Id. at 1324.
In antitrust litigation, as in all litigation, summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). In ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the opposing party. Willetts v. Ford Motor Co., 583 F.2d 852, 855 (6th Cir.1978); Weaver v. Shopsmith, Inc., 556 F. Supp. 348, 351 (S.D.Ohio 1982). However, if such a motion is made and properly supported, the opposing party may not rest on its pleadings, but must present affidavits or other evidence, setting forth specific facts to demonstrate a genuine issue of a material fact. Gillmore v. Procter & Gamble Company, 417 F.2d 615 (6th Cir.1969); Fed.R.Civ.P. 56(e).
With these standards in mind, the Court turns to the arguments that Ohio Medical makes to support its motion for summary judgment. Ohio Medical points out that the essence of Plaintiff's antitrust claim is an alleged agreement between it and Metropolitan to cease paying for Plaintiff's procedure. Ohio Medical argues that the existence of such an agreement is not a genuine issue of fact. There simply was not such an agreement, and in the absence of one, Ohio Medical argues that it did not violate § 1 of the Sherman Act, 15 U.S.C. § 1. Consequently, it reasons that it is entitled to judgment as a matter of law on Plaintiff's antitrust claim.
In making this argument, Ohio Medical relies on the affidavits of Homer S. Harrison (Doc. # 20) and John F. Esposito (Doc. # 14) and Plaintiff's response to Metropolitan's first set of interrogatories (Doc. # 10).
In answering Metropolitan's Interrogatory No. 1, Plaintiff set forth the facts upon which he based the allegation in ¶ 8 of the complaint that the Defendants had such an agreement.
Plaintiff learned of the agreement in the Spring of 1979 at a meeting where Mr. Esposito and Mr. Kennedy of Metropolitan Life and Plaintiff were present. This meeting occurred at Plaintiff's request because Metropolitan Life had recently altered the payments he received for his vaginal reconstructive surgery. Plaintiff was extremely distressed by this alteration since he had only recently came to a payment agreement for the vaginal reconstructive surgery with Mr. Silvator, Mr. Kennedy's predecessor. Mr. Esposito, during the course of this meeting, informed Plaintiff that Blue Shield "told" Metropolitan Life to alter the payment schedule for Plaintiff's vaginal reconstructive surgery. When Plaintiff questioned this, Mr. Esposito informed Plaintiff *759 that Blue Shield "ordered" the alteration because Blue Shield covers General Motors' employees in Michigan and Metropolitan Life covers General Motors' employees in the Dayton, Ohio area.
The affidavits of Harrison, Senior Vice President of External Relations for Ohio Medical, and Esposito, Divisional Manager, Group National Accounts for Metropolitan, conclusively demonstrate that Ohio Medical and Metropolitan did not have an agreement with respect to payment or nonpayment of Plaintiff's fees. Rather, the "Blue Shield" referred to in the above quoted response was Blue Cross and Blue Shield of Michigan ("BCBSM").[3] The affidavits established that BCBSM was responsible for coverage of GM employees in Michigan. Ohio Medical had no involvement with providing health benefits to GM employees in either Ohio or Michigan. Further, although both Ohio Medical and BCBSM operate under the name "Blue Shield," they are separate corporate entities.
Not only has Plaintiff failed to file a response to Ohio Medical's motions, his response to Metropolitan's motion (Doc. # 31) effectively concedes the accuracy of Ohio Medical's position.
What lay behind Metropolitan's action, and what implicates the federal antitrust laws and not merely the law of contract, was a contract, combination, or conspiracy between Metropolitan and Blue Cross and Blue Shield of Michigan (BCBSM).
Plaintiff simply mistook Ohio Medical for BCBSM.
Based on the foregoing, the Court concludes that no genuine issue of fact (material or otherwise) exists, regarding the agreement that Plaintiff alleges was entered into between Ohio Medical and Metropolitan. There was not such an agreement.
Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits, "Every contract, combination ... or conspiracy, in restraint of trade ...." Essential to its violation is some sort of agreement. Six Twenty-Nine Productions, Inc. v. Rollins Telecasting, Inc., 365 F.2d 478, 484 (5th Cir.1966); Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 293 (3d Cir. 1963), aff'd by an equally divided Court, 378 U.S. 123, 84 S. Ct. 1657, 12 L. Ed. 2d 743 (1964). Absent an agreement, there can be no violation of § 1 of the Sherman Act. United States Brewers Association v. Healy, 532 F. Supp. 1312, 1329 (D.Conn. 1982). Inasmuch as the Court has determined that there is not a genuine issue of fact about the existence of such an agreement and that no such agreement exists, Ohio Medical is entitled to judgment as a matter of law. Accordingly, Ohio Medical's motion for summary judgment is sustained.
In his fourth and fifth claims, Plaintiff states claims for breach of insurance contract against Ohio Medical. No independent grounds for federal jurisdiction are asserted. Rather, Plaintiff seeks to have the Court exercise pendent jurisdiction over these claims. Ohio Medical has filed a motion to dismiss these claims for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Ohio Medical argues that the Court should decline to exercise pendent jurisdiction over these state law claims.
It is well settled that in the absence of an independent basis of jurisdiction, a federal court should not exercise pendent jurisdiction over state law claims when the federal claims, to which the Plaintiff seeks to append state claims, are not substantial enough to withstand dismissal prior to trial. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Wilson v. Moss, 537 F. Supp. 281, 290-91 (S.D.Ohio 1982); Arnson v. General Motors Corporation, 377 F. Supp. 209, 214 (N.D.Ohio 1974). See also, Nash & Associates, Inc. v. Lum's of Ohio, Inc., 484 F.2d 392, 395-96 *760 (6th Cir.1973). Plaintiff's federal claim against Ohio Medical, the antitrust claim, was not substantial enough to withstand a motion for summary judgment. Accordingly, the Court declines to exercise pendent jurisdiction over the state claims.[4] Therefore, Ohio Medical's motion to dismiss is sustained, and Plaintiff's fourth and fifth claims are dismissed without prejudice.
II. Motions of Defendant Metropolitan
Like Ohio Medical, Metropolitan has filed a motion for summary judgment on the Plaintiff's antitrust claim and a motion to dismiss Plaintiff's breach of insurance contract claims for lack of subject matter jurisdiction (Doc. # 13).
A. Metropolitan's Motion for Summary Judgment
In ruling on Metropolitan's motion for summary judgment, the Court is mindful of the standards governing the granting of summary judgment and the use of summary judgment in antitrust litigation. These are set forth above in the Court's discussion of Ohio Medical's motion for summary judgment. They need not be repeated herein.
In this motion, Metropolitan argues that there is not a genuine issue of fact regarding an agreement between it and either Ohio Medical or BCBSM on the subject of ceasing to pay for Plaintiff's procedure. The only such agreement, according to Metropolitan, is one between it and BCBSM relating to Metropolitan's provision of health insurance for General Motors employees. However, Metropolitan's argument continues, the agreement between it and BCBSM is exempt from antitrust laws under the nonstatutory labor exemption. Consequently, Metropolitan is immune from antitrust liability based upon that agreement. To support its motion, Metropolitan relies on the affidavits of John E. Esposito (Doc. # 14 and # 33) as well as upon Plaintiff's answers to Metropolitan's First Set of Interrogatories (Doc. # 10).
In answering Metropolitan's Interrogatory No. 1, Plaintiff set forth the facts upon which he based his allegation that Metropolitan ceased paying his fee because of an agreement with Ohio Medical.
Plaintiff learned of the agreement in the Spring of 1979 at a meeting where Mr. Esposito and Mr. Kennedy of Metropolitan Life and Plaintiff were present. This meeting occurred at Plaintiff's request because Metropolitan Life had recently altered the payments he received for his vaginal reconstructive surgery. Plaintiff was extremely distressed by this alteration since he had only recently came to a payment agreement for the vaginal reconstructive surgery with Mr. Silvator, Mr. Kennedy's predecessor. Mr. Esposito, during the course of this meeting, informed Plaintiff that Blue Shield "told" Metropolitan Life to alter the payment schedule for Plaintiff's vaginal reconstructive surgery. When Plaintiff questioned this, Mr. Esposito informed Plaintiff that Blue Shield "ordered" the alteration because Blue Shield covers General Motors' employees in Michigan and Metropolitan Life covers General Motors' employees in the Dayton, Ohio area.
In his affidavit of April 28 (Doc. # 14), Esposito elaborated on this conversation. He states that he had two conversations with Plaintiff about coverage of his surgical procedure. In each, he informed Plaintiff that because the procedure was not generally accepted, it was not covered by Metropolitan's policies.
He also told Plaintiff that there was another reason why the procedure was not *761 covered for GM employees for whom Metropolitan provided health care benefits. This was because the collective bargaining agreements between GM and the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America ("UAW"), the International Union of Electrical, Radio and Machine Workers ("IUE") and the United Rubber, Cork, Linoleum, and Plastic Workers of America ("Rubber Workers") established nationwide, uniform health care benefits for GM employees. In order to assure uniformity of benefits, the collective bargaining agreements established BCBSM as the "Control Plan."[5] Under this system, questions about the scope or level of benefits were referred to the Control Plan, BCBSM, for interpretation. A question about coverage for Plaintiff's procedure had been referred to the Control Plan, and BCBSM had issued an interpretation that the procedure was not covered.
Esposito's affidavit of April 28th states that, to his knowledge, neither he nor anyone else at Metropolitan communicated with Ohio Medical about coverage of Plaintiff's procedure.[6] In his affidavit of September 22nd (Doc. # 22), Esposito states that the only agreement between BCBSM and Metropolitan, regarding coverage of Plaintiff's procedure, related to health insurance for GM employees. The Plaintiff's affidavit (Doc. # 36) does not dispute any of the foregoing. It merely reiterates the substance of the above quoted answer to Metropolitan's Interrogatory No. 1.
Based upon the foregoing, the Court concludes that there is no genuine issue of fact about an agreement between Metropolitan and either Ohio Medical or BCBSM relating to the non-payment of Plaintiff's fees for his surgical procedure. The only such agreement was between Metropolitan and BCBSM about providing health insurance to employees of General Motors. In ruling on Ohio Medical's motion for summary judgment, the Court determined that Metropolitan and Ohio Medical had no agreement about the payment of Plaintiff's fee.[7]
Metropolitan argues that the agreement with BCBSM is exempt from antitrust liability because it falls within the non-statutory labor exception to the Sherman Act.
The non-statutory exemption[8] for labor-employer agreements is an accommodation of the Sherman Act to the policy of national labor laws. Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America, 381 U.S. 676, 689, 85 S. Ct. 1596, 1601, 14 L. Ed. 2d 640 (1965) (Opinion of White). In Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S. Ct. 28, 54 L. Ed. 2d 59 (1977), the Court set forth broad standards to be used in determining whether the non-statutory exemption applies to an employer/labor agreement.
We find the proper accommodation to be: First, the labor policy favoring collective bargaining may potentially be given preeminence over the antitrust laws where *762 the restraint on trade primarily affects only the parties to the collective bargaining relationship. See, Connell Co. v. Plumbers & Steamfitters, supra [421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975)]; Meat Cutters v. Jewel Tea, supra; Mine Workers v. Pennington, supra. Second, federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted covers a mandatory subject of collective bargaining. See, Meat Cutters v. Jewel Tea, supra; Mine Workers v. Pennington, supra. Finally, the policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's-length bargaining. See, Meat Cutters v. Jewel Tea, supra.
543 F.2d 614-15 (footnotes omitted). These principles were quoted with approval and relied upon by the Sixth Circuit in McCourt v. California Sports, Inc., 600 F.2d 1193, 1197-98 (6th Cir.1979).[9]
The agreement which is being challenged herein is an agreement between General Motors and the unions representing its organized employees, the UAW, the IUE and the Rubber Workers which required uniform insurance coverage for all employees covered by these collective bargaining agreements. To implement this goal, the collective bargaining agreements set up BCBSM as the control plan. BCBSM was to determine what procedures were covered by the policy and to inform other carriers of this. This primarily affects General Motors and its employees, the parties to the collective bargaining agreements. The effect of the agreement between GM and its unions is to assure uniform insurance coverage for GM's employees. Consequently, the first policy consideration favors the exemption.
Second, insurance coverage is unquestionably the subject of mandatory bargaining. Bastian-Blessing v. NLRB, 474 F.2d 49, 52 (6th Cir.1973). Hence, the second policy consideration also favors the exemption.
There is no hint that the provisions in the contracts between GM and the unions representing employees is other than the product of collective bargaining. Thus, the third policy principle propounded in Mackey bodes toward the exemption.
The policy purposes for the non-statutory labor exemption are fulfilled in the present case. Moreover, other courts have concluded that the exemption is available in similar situations. In Michigan State Podiatry Association v. Blue Cross and Blue Shield of Michigan, 1982-2 Trade Cas. (CCH) ¶ 64,801 (E.D.Mich.1982), the court considered an antitrust challenge by an association of suppliers to the insurance provisions in the collective bargaining agreement between Chrysler Corporation and the UAW. The agreement required that predetermination of medical necessity be made prior to the performance of certain surgical procedures on feet. The plan was administered by Blue Cross and Blue Shield of Michigan. The court held that the agreement, as administered by BCBSM, came with the non-statutory exemption; thus, Blue Cross and Blue Shield of Michigan was immune. See also, Grigg v. Blue Cross and Blue Shield of Michigan, 1980-2 Trade Cas. (CCH) ¶ 63,500 (E.D. Mich.1980).
Based on the foregoing, the Court concludes that the agreement Metropolitan made with BCBSM to implement the furnishing of health insurance to GM employees is exempted from antitrust attack by *763 the non-statutory labor exemption.[10] The Court has already determined that this was the only concerted action undertaken by Metropolitan regarding payment for Plaintiff's procedure. Consequently, Metropolitan is entitled to judgment as a matter of law. Therefore, Metropolitan's motion for summary judgment on the antitrust claim is sustained.
B. Metropolitan's Motion to Dismiss
In his second, third and sixth claims, Plaintiff asserts state law claims against Metropolitan for breach of insurance contract. Plaintiff requests the Court to exercise pendent jurisdiction over these claims. Like Ohio Medical, Metropolitan moves to dismiss these claims for lack of subject matter jurisdiction. Metropolitan bases this motion on the assumption that the Court has sustained its motion for summary judgment on Plaintiff's antitrust claim. Like Ohio Medical, Metropolitan contends that the Court should not exercise pendent jurisdiction over the state claims because the federal claim was not substantial enough to withstand a motion for summary judgment. For the reasons set forth in the Court's discussion of Ohio Medical's nearly identical motion, Metropolitan's motion to dismiss Plaintiff's second, third and sixth claim is sustained. Plaintiff's second, third and sixth claims are ordered dismissed without prejudice.
III. Plaintiff's Motion to File an Amended Complaint
Also pending is Plaintiff's motion to file an amended complaint. (Doc. # 28). The Court informed counsel that it would defer ruling on this motion until ruling upon the other outstanding motions. (Doc. # 42).
Plaintiff's proposed amended complaint (Doc. # 39)[11] differs from his original complaint in two areas. First, Plaintiff has dropped Ohio Medical from his antitrust claim and alleges that the antitrust conspiracy was between Metropolitan and BCBSM.[12] Second, Plaintiff has added a seventh claim to his complaint. In the seventh claim, Plaintiff seeks to add ninety *764 additional defendants. Each of these additional Defendants is alleged to have entered into contracts to provide health insurance to Plaintiff's patients. Plaintiff contends that he is a third-party beneficiary of these contracts. Plaintiffs allege that the additional Defendants have breached these insurance contracts by refusing to pay for his surgical procedure.
Leave to amend under Fed.R. Civ.P. 15(a) "shall be freely given when justice so requires." The decision on whether to grant a motion to amend under Rule 15(a) is commended to the sound discretion of the district court. Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1133 (6th Cir.1980). A district court "may deny a motion for leave to amend a complaint if such complaint, as amended, could not withstand a motion to dismiss." Neighborhood Development Corporation v. Advisory Council, 632 F.2d 21, 23 (6th Cir.1980). A district court may also deny a motion to amend if amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962); Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973).
Applying these standards to Plaintiff's motion to amend, the Court concludes that Plaintiff's motion should be overruled.
Allowing the amendment as it relates to the antitrust claim would be futile. Plaintiff's proposed amended complaint would merely substitute BCBSM for Ohio Medical as Metropolitan's co-conspirator. However, in ruling on Metropolitan's motion for summary judgment, the Court, as well as the Plaintiff and Metropolitan, assumed Plaintiff alleged that Metropolitan and BCBSM engaged in concerted action against him. The Court determined that their only agreement came within the non-statutory labor exemption to antitrust laws. The proposed amended complaint contains no allegations which would vary this conclusion. Indeed, in light of the statements in Plaintiff's affidavit and his response to Metropolitan's interrogatories, it would be impossible for Plaintiff to make allegations varying that conclusion.
In the proposed amended complaint, Plaintiff, in the seventh claim, seeks to add ninety additional Defendants. Plaintiff asserts a state law breach of insurance claim against each. The only alleged basis of jurisdiction for these claims is the Court's pendent jurisdiction.
This part of Plaintiff's proposed amended complaint would not withstand a motion to dismiss for lack of subject matter jurisdiction. The fundamental requisite of pendent jurisdiction is the federal and state claims, "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, supra, 383 U.S. at 725, 86 S. Ct. at 1138. It is patent that the claims for breach of insurance contract do not have a common nucleus of operative facts with the Plaintiff's antitrust claim. The facts, which engender the breach of insurance contract claims, are the existence of a policy, issued by one of the additional Defendants and covering one of Plaintiff's patients, and the breach of that policy by the issuing company. For each of these claims, these facts will be different. Plaintiff does not assert that any of these claims is at all related to the alleged antitrust conspiracy between Metropolitan and BCBSM.
Based on the foregoing, Plaintiff's motion for leave to file an amended complaint is overruled.
IV. Conclusion
In conclusion, the Court has ruled on the outstanding motions in the following manner:
(1) Defendant Ohio Medical's motion for summary judgment (Doc. # 19) is sustained. Defendant Ohio Medical's motion to dismiss Plaintiff's fourth and fifth claims (Doc. # 19) is granted. Plaintiff's fourth and fifth are ordered dismissed without prejudice.
(2) Defendant Metropolitan's motion for summary judgment (Doc. # 13) is sustained. Defendant Ohio Medical's motion to dismiss Plaintiff's second, third and sixth claims is sustained. *765 Plaintiff's second, third and sixth claims are hereby ordered dismissed without prejudice.
(3) Plaintiff's motion for leave to file an amended complaint is overruled.
The clerk will enter the appropriate judgment for the Defendants.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTES
[1] In Plaintiff's complaint, Defendant Ohio Medical Indemnity Mutual Corporation is referred to as Blue Shield of Southwest Ohio; however, the former is its correct corporate name. Consequently, the Court will use the former.
[2] Plaintiff's second, third and sixth claims are against Metropolitan. The fourth and fifth claims are against Ohio Medical.
[3] The role of BCBSM in the decision not to pay Plaintiff's fees is fully developed in discussion of Metropolitan's motions.
[4] In reaching this decision, the Court has assumed, without deciding, that exercise of pendent jurisdiction over the state law claims is within the Court's discretion. However, pendent jurisdiction may be exercised only when the state and federal claims "[d]erive from a common nucleus of operative fact." United Mine Workers v. Gibbs, supra, 383 U.S. at 725, 86 S. Ct. at 1138. It is somewhat questionable whether Plaintiff's claims arise from the same operative facts. Therefore, it is questionable whether the Court even has the discretion to exercise pendent jurisdiction over the state claims.
[5] The exhibits to Esposito's affidavit, supplemental agreements on insurance to the collective bargaining agreement between GM and the UAW, the IUE and the Rubber Workers, confirm Esposito's affidavit.
[6] The affidavit of Homer S. Harrison, Senior Vice President of External Relations for Blue Shield of Southwest Ohio, states that there was no agreement between Metropolitan and Blue Shield of Southwest Ohio relating to coverage for Plaintiff's procedure.
[7] In his complaint, Plaintiff alleges that Metropolitan and Ohio Medical entered into the agreement to stop paying Plaintiff's fee. The only agreement relating to that subject was one between Metropolitan and BCBSM. Nonetheless, in ruling on Metropolitan's motion for summary judgment, the Court will assume that Plaintiff alleged an agreement between Metropolitan and BCBSM. In their memoranda, the parties have implicitly made this assumption by addressing the issue of whether this agreement falls within the non-statutory, labor exemption.
[8] Labor unions when acting alone are statutorily exempt from antitrust laws for certain specified conduct. See, e.g., United States v. Hutcheson, 312 U.S. 219, 61 S. Ct. 463, 85 L. Ed. 788 (1941); United Mine Workers v. Pennington, 381 U.S. 657, 661-62, 85 S. Ct. 1585, 1588-1589, 14 L. Ed. 2d 626 (1965); Home Box Office v. Directors Guild of America, 531 F. Supp. 578, 585-87 (S.D.N.Y.1982) (listing statutes).
[9] Mackey and McCourt involved antitrust attacks on the reserve system provisions of collective bargaining agreements in professional sports. Mackey was a challenge to the Rozelle rule in the National Football League, and McCourt was a challenge to a similar provision in the National Hockey League. Nevertheless, the Court knows of no reason why the principles enunciated in Mackey and approved in McCourt should be limited to cases challenging reserve clauses in collective bargaining agreements of professional sports. Indeed, Plaintiff uses the Mackey analytical framework to argue that the agreement herein does not come within the non-statutory labor exemption.
[10] In his memorandum in opposition to Defendant's motion for summary judgment (Doc. # 31), Plaintiff says:
However, the Plaintiff's antitrust claim is not that Metropolitan, as part of a contract, combination, or conspiracy, eliminated coverage for the Plaintiff's surgical procedure for General Motors employees. Rather, the Plaintiff charges that such concerted action led Metropolitan to make an across-the-board elimination of coverage for the Plaintiff's surgical procedure, i.e., an elimination of coverage that affected all people insured by Metropolitan, whether or not they were employees of General Motors. The Plaintiff is not attacking the collective bargaining agreements executed by General Motors and the unions, or the implementation of those collective bargaining agreements by Metropolitan, BCBSM, or any other parties. Because the Plaintiff is attacking an agreement for an across-the-board elimination of coverage, the nonstatutory labor exemption described in Metropolitan's brief plainly does not dispose of this case or, indeed, apply at all.
The affidavits of Esposito establish that the only concerted action by Metropolitan on the subject of Plaintiff's surgical procedure was between it and BCBSM regarding the implementation of the insurance provisions of the collective bargaining agreement between GM and the unions. According to Esposito's affidavits, Metropolitan eliminated coverage of Plaintiff's procedure only for GM employees because of this. Neither Plaintiff's affidavit nor his answers to Metropolitan's interrogatories contain specific facts contradicting these statements. As a consequence, the Court has concluded, in the main body of the opinion, that a genuine issue of fact, regarding the extent to which Metropolitan agreed to eliminate coverage for Plaintiff's procedure, does not exist. The only agreement was between Metropolitan and BCBSM regarding coverage for GM employees. Unsupported conclusory allegations in a memorandum in opposition to summary judgment, such as those in Plaintiff's memo which are quoted above, are not sufficient to demonstrate the existence of genuine issues of fact. Medical Arts Pharmacy v. Blue Cross & Blue Shield, 518 F. Supp. 1100, 1108-09 (D.Conn.1981); Saunders v. National Basketball Association, 348 F. Supp. 649, 654 (N.D.Ill.1972).
[11] Plaintiff attached a proposed amended complaint to his motion for leave to amend. (Doc. # 38). However, he later submitted a "proper proposed first amended complaint." It is the proper proposed amended complaint that the Court has considered.
[12] Plaintiff does not make BCBSM a party to this claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2387852/ | 384 Pa. Super. 176 (1989)
557 A.2d 1103
Gerry P. TOMLINSON & Bettina L. Tomlinson
v.
Charles A. JONES & Sharon L. Jones, Appellants.
Supreme Court of Pennsylvania.
Submitted February 1, 1988.
Filed May 2, 1989.
Harry V. Klein, Jr. Sunbury, for appellants.
*177 Myron M. Moskowitz, Shamokin, for appellees.
Before TAMILIA, POPOVICH and JOHNSON, JJ.
JOHNSON, Judge:
Charles Jones and Sharon Jones appeal from the order of the trial court requiring them to remove from their property a barricade which prevented Gerry Tomlinson and Bettina Tomlinson, Appellees, from making continued use of an easement across the Appellants' property for egress and ingress to their own home. We affirm.
The Appellees live on land-locked property in West Cameron Township, Northumberland County. Since buying their home in 1986, the Appellees have made continuous use of a roadway that extends across the Appellants' private property in order to reach their land from Legislative Route 49012. The Appellees can only access their property from legislative route 49012 by use of the roadway in question. The trial court found that the roadway has been used and in certain instances maintained by the Appellees and their predecessors in title since the turn of the century.
The dispute between the parties arose in April, 1987 when the Appellees filled potholes on the roadway with gravel in order to permit easier passage on the roadway. After the Appellants discovered that the gravel was placed on the roadway they decided to barricade the road to prevent its use by the Appellees. The Appellees brought an action in equity asking that the Appellants be ordered to remove the barricade since the Appellees had acquired an easement either by prescription, implication or necessity over the roadway. A hearing in this matter commenced before the Honorable Samuel C. Ranck on December 10, 1987. On July 15, 1988, having found that the Appellees were entitled to an easement by prescription, Judge Ranck entered an order directing that the Appellants remove the barricade and refrain from further interfering with the Appellees use of the easement. The Appellants' motions for post-trial relief were filed and denied. This appeal is taken from entry of the final decree.
*178 Initially, the Appellants argue that the Appellees could not have acquired an easement by prescription since the Appellants' roadway transverses private uninclosed woodland property and is therefore subject to 68 P.S. 411 which provides in pertinent part:
No right of way shall be hereafter acquired by use, where such way passes through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or inclosure.
"The character of the land itself is determinative of the application of the Act of 1850." Minteer v. Wolfe, 300 Pa.Super. 234, 242, 446 A.2d 316, 321 (1982) citing Humberston v. Humbert, 267 Pa.Super 518, 521, 407 A.2d 31, 32 (1979). After viewing the property in question, the trial court was satisfied that the area was a woodland within the meaning of the act. The trial court, however, declined to apply 68 P.S. 411 to the facts in this case. It found that the Appellants and their predecessors were well aware of the roadway's use by owners of adjacent properties and therefore the statute's purpose of protecting owners who were not aware of trespassers and who could not afford to enclose their expansive properties would be unavailing. The Appellants ask that we find that the trial court erred by concluding that 68 P.S. 411 was inapplicable even though this was woodland property.
The findings of the trial court will not be disturbed absent a clear abuse of discretion or error of law. However, this court is not bound by the lower court's legal conclusions and is free to draw its own inferences and conclusions from the established facts. Minteer v. Wolfe, 300 Pa.Super. at 238, 446 A.2d at 318. We conclude that Appellees acquired an easement by implication which is an easement not prohibited by 68 P.S. 411. Accordingly, we do not reach Appellants contention that 68 P.S. 411 should be applied to prevent the acquisition of a prescriptive easement under the facts of this case.
*179 An easement by implication is acquired where the intent of the parties is clearly demonstrated by "the terms of the grant, the surroundings of the property and other res gestae of the transaction." Thomas v. Deliere, 241 Pa.Super. 1, 4, 359 A.2d 398, 399 (1976). Pennsylvania has adopted the Restatement of Property view of determining when a easement by implication arises. Thomas v. Deliere, 241 Pa.Super. at 5 n. 2, 359 A.2d at 400 n. 2. Under this view an easement by implication exists where an inference of the intention of the parties arises from the surrounding circumstances. Restatement of Property § 476, comment (a). Several factors may be considered when discerning the parties intent:
[w]hether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of the necessity to the claimant, (f) whether the reciprocal benefits result to the conveyor and the conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.
Restatement of Property § 476. The extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be implied. Id. We note in this regard that the Restatement of Property does not retain the historical distinction between easements acquired by implication or those acquired of necessity but rather requires a balancing of all relevant factors to ascertain the inference of intent.
We believe the record sufficiently demonstrates that the Appellees acquired an easement by implication.
When a right or title is of ancient origin or where the transaction under investigation is so remote as to be incapable of direct proof . . . the law, of necessity, relaxes the rules of evidence and requires less evidence to substantiate the fact [in] controversy.
Minteer v. Wolfe, 300 Pa.Super. at 240, 446 A.2d at 319 citing Hostetter v. Commonwealth, 367 Pa. 603, 606, 80 *180 A.2d 719, 720 (1951). The last owner of both the dominant and servient estates, prior to their severance in 1897, was Amanda Whary.[1] Amanda Whary divided the property by separately selling each tract, first the dominant estate to Mary Whary in 1897 and then the servient estate to Pierce Wehry in 1902. At trial, the Appellees established use of the roadway by the dominant estate owners at least as far back as the Ressler family in 1952. The evidence further indicates that owner Mary Whary (owner of the dominant estate 1897-1952) and the members of the Gotaskie family (owners of the servient estate 1937-1968) are deceased. Given the span of time which has passed since the properties were divided in 1897, there is very little direct evidence on the issue of Amanda Whary's intent.
Given the unlikelihood of providing direct proof that Amanda Whary intended to give subsequent owners of the Appellees' tract an easement, we must look to the surrounding circumstances. The trial court found that the roadway passing over the Appellants' property is the only access which the Appellees have to their land. The Appellants admit that they are unaware of any other roadway and the Appellees testified that no other roadway exists. Neither land survey submitted by the parties discloses any roadway other than the disputed roadway and a path, also on the Appellants' property, not passable by vehicle, which extends therefrom. The trial court's finding is also buttressed by evidence suggesting that this is the only roadway known to have been used by the succeeding owners in title since the Ressler family received ownership in 1952, some thirty-seven years ago. Use of this roadway by the Ressler family until present day is unchallenged. Where the servient estate abuts a public roadway and the only access to the dominant estate is by easement over the servient estate, and where the properties were originally held jointly, it has *181 long been the rule that an easement arises of necessity. Soltis v. Miller, 444 Pa. 357, 282 A.2d 369 (1971).
The facts also show that Amanda Whary sold the dominant estate, then encompassing 80 acres and 60 perches, to Mary Whary for the nominal amount of $8.38, thereby suggesting that Mary Whary may have been a relative. Thus, we think it reasonable to believe that the land was transferred with the intent that Mary Whary have access to her property over the roadway which apparently has existed since her ownership. Mary Whary then devised this property to her daughter Madeline who sold the property some seven months later to the Ressler family which also used the roadway for passage. In addition, the record discloses that the owners of the servient estate have benefitted for years from the dominant estate owners use of the roadway. As far back as 1954, the Balonis family, owners of the dominant estate at that time, permitted their farming equipment to be used to maintain the roadway. Because the Appellees' property can be accessed only by the roadway and because the roadway has been used by generations of families living on the land without objection, we find that the record discloses the inference of an intent on the part of Amanda Whary, upon dividing the land, to permit owners of the dominant estate to use the servient estate for passage. Accordingly, an easement by implication is proper.
The Appellants next contend that even if the facts support the existence of an easement by necessity or implication, to permit such easement would be contrary to the apparent intent of 68 P.S. 411 to prevent any right of way from being acquired. The Appellants point to no authority for this proposition, nor have we found any. The cases which discuss this statute uniformly treat this provision as prohibiting prescriptive use. Neither does 68 P.S. 411 implicitly include within its meaning a prohibition against easements arising of necessity or implication. Given the statute's apparent purpose to protect woodland property owners against unknown and undesired encroachment upon their property rights, we find that this statute has no applicability were an easement has arisen by implication or *182 necessity. In the former case, the dominant estate owner is deemed to have intended the use implied and in the latter, the use arises as a matter of public policy to prevent land from remaining unusable. 3 Powell on Real Property 410-411 (1970).
In conclusion, we find that the Appellees have acquired an easement by implication. Therefore, the trial court's order directing the Appellants to remove the barricade from the roadway in question and to refrain from further interference with the Appellees use of the roadway is proper.
Judgment affirmed.[2]
NOTES
[1] The name "Amanda Whary" on the Appellees' chain of title appears as "Amanda Wehry" on the Appellants' chain of title. It is evident by the chains of title of both parties that Amanda Whary and Amanda Wehry are the same individual. We believe the variation in this owner's last name to be simply a typographical error and therefore she will heretofore be referred to as Amanda Whary.
[2] Judgment was entered on April 13, 1989 pursuant to Pa.R.A.P. 905(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2388677/ | 452 Pa. 156 (1973)
Girt Estate.
Supreme Court of Pennsylvania.
Argued March 16, 1973.
May 23, 1973.
Before EAGEN, O'BRIEN, ROBERTS, POMEROY, and MANDERINO, JJ.
*157 W. Reid Lowe, with him Meyer, Unkovic & Scott, for appellant, Girt.
Donald W. Shaffer, with him J. Murray Eagen, Rea P. Miller, Jr., and Weller, Wicks and Wallace, for appellant, Benzie.
Clayton A. Sweeney, with him Thomas M. Thompson, Robert A. King, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellee, Toner Institute.
Thomas L. Jones, with him Richard C. Witt, and Jones, Gregg, Creehan & Gerace, for appellee, Pittsburgh National Bank.
OPINION BY MR. JUSTICE ROBERTS, May 23, 1973:
Charles H. Girt died on February 7, 1967, leaving a will, dated February 10, 1966, which was duly probated in Butler County. These appeals arise from the dismissal of exceptions filed by Susan Girt, testator's daughter, and Margie Rebar, now Margie Rebar Benzie, a legatee under the will, to the first and partial account of the Pittsburgh National Bank, the testamentary trustee.
The controversy in both appeals involves the disposition of trust income in excess of that required to satisfy certain specific annuities established by decedent's will. After directing the payment of all debts and funeral expenses, testator, in Articles Second and Third, provided:
"Second, I am not unmindful of my legal daughter, SUSAN GIRT, and by this Will do not give, devise or bequeath any of my estate unto her.
*158 "THIRD: All the rest, residue and remainder of my estate of whatsoever kind and wheresoever found, I give, devise and bequeath unto the Pittsburgh National Bank of Pittsburgh, Pennsylvania, in trust nevertheless, for the following purposes, to invest and reinvest the same and to pay the income therefrom as follows:
"(A) To my AUNT ANNIE GOOD the sum of One Hundred ($100.00) Dollars a month until the time of her decease.
"(B) To my AUNT EMMA COLEMAN the sum of One Hundred ($100.00) Dollars a month until the time of her decease.
"(C) To my brother, JEROME GIRT, the sum of Two Hundred Fifty ($250.00) Dollars a month until the time of his decease.
"(D) To MARGIE REBAR, the sum of Two Hundred Fifty ($250.00) Dollars a month until the time of her decease.
"(E) To pay to MARGIE REBAR the sum of Three Thousand ($3,000.00) Dollars each year for a period of ten (10) years, said amount being paid out of the income remaining after the payment of the above legacies and so much of the principal of my estate as may be necessary to provide payment of Three Thousand ($3,000.00) Dollars each year. At the end of ten (10) years my said trustee is ordered and directed to pay over to MARGIE REBAR all of the capital stock of the MESTA MACHINE COMPANY which is in my possession at the time of my decease. My said trustee is specifically authorized and directed to retain as an investment the said capital stock of the Mesta Machine Company. If Margie Rebar should die prior to the expiration of the said ten (10) year period, then the remaining undistributed shares of capital stock of Mesta Machine Company shall become a part of my residuary estate and shall be distributed as a part thereof.
*159 "(F) Upon the death of all of the above named legatees the said trust shall terminate and I give, devise and bequeath all of the rest, residue and remainder of my estate including the remaining principal or corpus of the trust and any income accrued and undistributed unto the TONER INSTITUTE of Pittsburgh, Pennsylvania."[1]
The trustee filed its first and partial account on May 26, 1971, which account reflected that the trustee currently held principal in the amount of $495,000, and $60,000 in excess accumulated income, after having made the distributions mandated by Article Third of the will. Appellant Rebar Benzie filed exceptions to this account, claiming her entitlement to the excess income (accumulated by the trustee) and, in the alternative, her entitlement to all income derived from the Mesta Machine Company stock. Appellant Girt also filed exceptions, contending that the surplus accumulated income should pass to her by intestacy. The orphans' court dismissed appellants' exceptions, approved the account, and directed that all excess income be accumulated for the benefit of the residuary legatee, the Toner Institute. These appeals followed, and we now affirm.
Appellant Girt alleges that although Article Second explicitly excludes her from taking under the will, she is nonetheless entitled to the excess accumulated income held by the trustee. Appellant suggests that this surplus income was not disposed of by testator's will, and accordingly, should pass to her by intestacy, as *160 she is the sole surviving heir of Charles Girt. We must reject this contention.
"`One who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion thereof: Provident Trust Co. of Philadelphia v. Scott, 335 Pa. 231, 6 A.2d 814; Duffy's Estate, 313 Pa. 101, 169 A. 142; Appeal of Ferry, 102 Pa. 207; Miller's Appeal, 113 Pa. 459, 6 A. 715. If possible to do so, a will must be construed to avoid an intestacy; Rapson's Estate, 318 Pa. 587, 179 A. 436; Boland v. Miller, 100 Pa. 47.' Carmany Estate, 357 Pa. 296, 299, 53 A.2d 731." Grier's Estate, 403 Pa. 517, 522, 170 A.2d 545, 548 (1961). Where the decedent fails, however, to provide, by will, for the disposition of his entire estate, the undisposed of portion passes by intestacy. Knox's Estate, 328 Pa. 188, 195 A. 34 (1937); Grothe's Estate, 229 Pa. 186, 78 A. 88 (1910). Moreover, if intestacy does result, the fact that a provision in the will expressly disinherits an heir will not prevent that heir from taking a portion of the estate by intestate succession.[2]
Here, however, the testator did not fail to provide for the disposition of his entire estate. The language used by the testator in Article Third (F) is plain and clearly discloses his intention that all income, not specifically bequeathed to a named legatee, should pass, upon the death of all life annuitants, to the residuary beneficiary. The will, thus, interprets itself.[3] Cf. Wood v. Schoen, 216 Pa. 425, 66 A. 79 (1907).
*161 "Upon the death of all of the above named legatees the said trust shall terminate and I give, devise and bequeath all of the rest, residue and remainder of my estate including the remaining principal or corpus of the trust and any income accrued and undistributed unto the Toner Institute of Pittsburgh, Pennsylvania." (Emphasis added.)
"The words `residue and remainder' are technical legal terms with a well understood and definite meaning. They signify all that is left after the gifts specified or designated have been paid or satisfied." Suttner's Estate, 348 Pa. 159, 160, 34 A.2d 483-84 (1943) (emphasis added). This being so, it is apparent that the instant residuary clause must be interpreted to control the disbursement of all income not specifically bequeathed by testator.
Appellant Girt (as well as appellant Benzie), however, argues that the use of the words "income accrued and undistributed" is insufficient to establish the testator's intent that excess income be accumulated for the residuary legatee. We do not agree.
The terms of the instant will demonstrate with ample clarity a testamentary intent to bequeath to the Toner Institute the entire balance of the estate after satisfaction of Article Third's five precise specific bequests. Testator bequeathed fixed monetary income annuities to four named legatees any income remaining in the hands of the trustee after fulfilling the directives of Article Third (A-E) was clearly to pass, by the residuary clause, to the residuary distributee, and not to a disinherited heir. We are in complete agreement with the orphans' court's statement that any other *162 interpretation of the will would emasculate ". . . the dispositive intent of the testator."
The use of the word "accrued", in its ordinary usage, evinces testator's intent that the trustee accumulate all income in excess of that necessary to satisfy the specific testamentary legacies.[4] However, our decision does not rest on any lack of distinction between the words "accrued" and "accumulated".
"[T]he decision does not depend in any way upon the technical accuracy or inaccuracy of the use of the word `accrued' in the trust agreement. We think that the intent of the settlor to make a gift of only some of the net income to the life tenants . . . is sufficiently clear to permit accumulation and ultimate distribution of the balance as principal, and the disposition of principal in later articles of the trust agreement would encompass any capitalized income, whether it was specifically referred to or not. Any inference which could be drawn from the inclusion of the word `accrued' and the exclusion of `accumulated' would be too tenuous to counter the clear meaning of the settlor as expressed in article [Third]." Kessler's Estate, 47 Pa. D. & C. 2d 73, 82 (O.C. Montgomery, 1968).
Accordingly, we agree with the orphans' court's determination here that, ". . . there is no intestacy . . . and the claim of Susan Girt is . . . without merit."[5]
*163 Appellant Rebar Benzie, the sole surviving legatee, also contends that she is entitled to the excess income accumulated by the trustee. Appellant argues that she was the primary object of testator's bounty (although there is nothing in the record to support this claim) and that, therefore, she is entitled to a pro-rata share of the surplus income. Having already determined that excess income is included in the residuary clause, and not available to appellant Girt, so too that income is not available to appellant Benzie. Moreover, our conclusion is further mandated by the fact that testator's bequests to appellant Benzie were definite and subject to no interpretation. Appellant Benzie's claim must be decided adversely to her. It is beyond cavil that the residuary legatee is the sole beneficiary entitled to the excess income.
The remaining issue to be resolved is appellant Benzie's assertion that she is entitled to the income derived from the Mesta Machine Company stock. As the will directs (Article Third (E)), the stock is to be transferred to appellant, if she survives, ten years after the testator's death. The ten year period has not yet expired, and will not do so until February 7, 1977.
Although the trustee was specifically directed to retain the Mesta stock as an investment, there was no direction, and none can logically be inferred, that the income derived therefrom be held separately and exclusively for appellant Benzie's benefit. In fact, a reading of the entire will mandates the opposite conclusion although the stock itself could not be sold, the income derived from it could be used as any other income to satisfy the other annuities established by the will.
Such an interpretation is consistent with, and required by, Section 753 of the Fiduciaries Act of 1949, *164 Act of April 18, 1949, P.L. 512, art. VII, § 753, 20 P.S. § 320.753(e).[6]
"(e) Future date. A legacy payable at a future date, unless earlier set aside as a separate trust, shall not begin to bear interest or income until the date fixed for payment or delivery."
As no separate trust was created for the Mesta stock, and since appellant has not yet fulfilled the condition precedent of surviving for ten years after testator's death, she is not entitled to the income produced by the Mesta stock. See also Knox's Estate, 279 Pa. 120, 123 A. 670 (1924).
The decree of the orphans' court is affirmed. Appellants, Susan Girt, and Margie Rebar Benzie, and appellee, Toner Institute, each pay own costs. The corporate trustee, Pittsburgh National Bank, is directed to pay its own appeal costs, and counsel fees, without recourse to estate funds.[7]
*165 Mr. Justice POMEROY concurs in the result.
Mr. Chief Justice JONES and Mr. Justice NIX took no part in the consideration or decision of this case.
NOTES
[1] Testator was survived by Susan Girt, a daughter; Annie Good, an aunt; Jerome Girt, a brother; and Margie Rebar Benzie, a friend. Emma Coleman, the annuitant pursuant to Article Third (B), predeceased testator. Annie Good and Jerome Girt died prior to this litigation. The residuary legatee, Toner Institute, is a charitable institution in Pittsburgh.
[2] Even though a disinherited heir may take by intestacy, a testamentary provision disinheriting an heir is a substantial factor to be considered in determining whether or not there is an intestacy. Ervin's Estate, 367 Pa. 58, 61, 79 A.2d 264, 265 (1951); Gibbons' Estate, 317 Pa. 465, 467, 177 A. 50, 51 (1935).
[3] Under the law in effect at the time of testator's death, and under present statutory provisions, accumulations of excess income by a trustee are lawful. Estates Act of 1947, Act of April 24, 1947, P.L. 100, § 6, as amended, 20 P.S. § 301.6 (Supp. 1972), repealed and replaced by the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, § 6106, 20 P.S. § 6106 (effective July 1, 1972).
[4] Webster's Third New International Dictionary, G. & C. Merriam Company, Springfield, Mass. 1965, defines "accrue" as "to come by way of increase or addition; arise as a growth or result; to be periodically accumulated in the process of time whether as an increase or decrease."
The Oxford English Dictionary, Oxford, Clarendon Press, 1933, defines "accrued" as "accumulated by growth".
[5] We further note, that had the instant residuary clause been silent as to "accrued and undistributed" income, the result we reach would be the same. The testator's use of the words "all the rest, residue and remainder of my estate . . . unto the Toner Institute" would have been sufficient to have authorized the trustee to accumulate income, and distribute the same, at the appropriate time, to the residuary legatee.
[6] Section 753 of the Fiduciaries Act of 1949 has been repealed and replaced by the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, § 3543(e), 20 P.S. § 3543(e) (effective July 1, 1972). The statutory provision governing income (interest) under the new Code is essentially identical to its 1949 predecessor.
[7] The professional corporate fiduciary-testamentary trustee-through its counsel, has briefed and argued before this Court its interpretation of decedent's will. The trustee's position is identical to that of the Toner Institute, the residuary legatee. On this record, there is neither need nor reason for the corporate fiduciary to regard itself as having an interest in this appeal that would warrant its additional participation and payment, by the estate, for a separate brief and representation by counsel. The controversy here is between a disinherited daughter, a specific legatee under the will, and the residuary beneficiary the trustee is not involved.
Clearly the trustee here is not one whose "estate or trust is. . . aggrieved [by a final order or decree of the orphans' court division]." Act of August 10, 1951, P.L. 1163, art. VII, § 771, repealed and replaced by the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, § 792, 20 P.S. § 792. Cf. Faust Estate, 364 Pa. 529, 531, 73 A.2d 369, 370-71 (1950); Reese's Estate, 317 Pa. 473, 177 A. 792 (1935); Hand's Estate, 288 Pa. 569, 136 A. 864 (1927).
"A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this, there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion' of particular exceptions. Wendt v. Fischer, 243 N.Y. 439, 444, 154 N.E. 303. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court." Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).
The professional corporate fiduciary, having no estate interest whatsoever in the outcome of this litigation, should not have participated in this appeal, and may not be compensated for such participation or reimbursed for expenditures so incurred, since its actions do not protect, defend or advance the interests of the decedent's estate.
We trust that our present admonition will be observed by fiduciaries to avoid unnecessary litigation costs which do not protect or advance the estate's interests. Our orphans' courts will, of course, be alert to insure that fiduciaries adhere to this standard of conduct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2388663/ | 305 A.2d 516 (1973)
David C. STEWART et al., Petitioners,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent.
The Boys' Club of Greater Washington, D. C., et al., Citizens Association of Georgetown, Inc., Intervenors.
No. 6802.
District of Columbia Court of Appeals.
Argued February 15, 1973.
Decided May 16, 1973.
Rehearing En Banc Denied August 31, 1973.
Helen Lee Sheehan, Washington, D. C., and Christopher W. Keller, Washington, D. C., with whom Courts Oulahan, Washington, D. C., was on the brief, for petitioners and intervenor, Citizens Ass'n of Georgetown, Inc.
*517 E. Calvin Golumbic, Asst. Corp. Counsel, Washington D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for respondent.
Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow, Washington, D. C., was on the brief for intervenors, The Boys' Club of Greater Washington, D. C., Georgetown Racquet Club, Inc. and The Georgetown Recreation Club.
Before KELLY, KERN and NEBEKER, Associate Judges.
KERN, Associate Judge.
Petitioners reside in Georgetown on S Street a few yards east of Wisconsin Avenue in a so-called R-1 Zoning District.[1] Directly across the street from them is a tract of somewhat more than four acres owned by the Boys' Club of Greater Washington upon which athletic fields for boys' team sports and a building housing an indoor swimming pool presently exist.[2] Petitioners ask this court to review an order by the Board of Zoning Adjustment (the Chairman dissenting) granting a special exception pursuant to § 3101.45 of the Zoning Regulations. The order authorizes a tennis club, the contract purchaser of this tract, to erect additional buildings to provide indoor tennis, squash, handball, sauna baths and indoor swimming and to permit its lessee to operate the facilities as a club for its members and their guests only.[3]
The applicable Zoning Regulations provide in pertinent part:
3101.1 The R-1 District is designed to protect quiet residential areas now developed with one-family detached dwellings and adjoining vacant areas likely to be developed for such purposes. The regulations are designed to stabilize such areas and to promote a suitable environment for family life. . . .
3101.2 [I]n any R-1 District no building or premises shall be used and no building shall be erected . . . except for one or more of the uses listed in the following paragraphs.
......
3101.4 The following uses are permitted if approved by the Board of Zoning Adjustment subject to the conditions specified in Section 8207[4] and below in each case:
......
3101.45 A community center building, park, playground, swimming pool, or athletic field operated by a local community organization or association, provided that:
(a) It is not organized for profit, but exclusively for the promotion of the social *518 welfare of the neighborhood in which it is proposed to be located;
(b) It offers no articles of commerce for sale therein;
(c) It is not likely to become objectionable in a Residence District because of noise or traffic; and,
(d) The use will be reasonably necessary or convenient to the neighborhood in which it is proposed to be located. (Original emphasis omitted; emphasis added; footnote added.) [Zoning Regulations of the District of Columbia, ch. 3, § 3101 et seq. (1966), as amended 1969.]
The Board in approving the tennis club's proposal made findings that
the Georgetown Recreation Club, the proposed operator of the tennis club, is "a local non-profit community organization" (R. 219);
the local community organization named to operate the proposed facility "is concerned with promoting the social welfare of the neighborhood" (R. 220);
"articles of commerce will not be sold on the property" (R. 219);
"noise will not be a problem" because the club's activities will for the most part be carried on indoors (R. 218);
"the character of the proposed use is such that traffic congestion is not likely to be a significant problem" (R. 220); and,
"the proposed facility will not detract from the appearance of the neighborhood, but will be reasonably necessary and convenient to the neighborhood" (R. 219).
Our review is of course limited to a determination "whether the decision reached . . . follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence." Saginaw Broadcasting Co. v. Federal Communications Commission, 68 App.D.C. 282, 287, 96 F.2d 554, 559 (1938), as specifically applied to decisions of the Board of Zoning Adjustment, Robey v. Schwab, 113 U.S. App.D.C. 241, 245 n. 11, 307 F.2d 198, 202 n. 11 (1962).[5] In short, if the Board's decision follows from its findings and these findings are supported by substantial evidence, we must affirm even though we might have reached another result. Brawner Building, Inc. v. Shehyn, 143 U.S. App.D.C. 125, 130, 442 F.2d 847, 852 (1971); D.C.Code 1972 Supp., § 1-1510.
Special exceptions, unlike variances, are expressly provided for in the Zoning Regulations. The Board's discretion to grant special exceptions is limited to a determination whether the exception sought meets the requirements of the regulation. The burden of showing that the proposal meets the prerequisite enumerated in the particular regulation pursuant to which the exception is sought rests with the applicant. In sum, the applicant must make the requisite showing, and once he has, the Board ordinarily must grant his application. Robey v. Schwab, supra 307 F.2d at 201; Hyman v. Coe, 146 F. Supp. 24, 27, 32 (D.D.C.1956).
In the instant case, the applicant sought a special exception under § 3101.45. That regulation (reprinted above) permits as a special exception the establishment of community centers operated by local community groups in R-1 Districts if they meet the enumerated provisos. The applicant proceeded on the assumption that the proposed facility was a community center and *519 therefore qualified for a special exception under § 3101.45. The Board apparently agreed because both in its Findings and Opinion it described the proposed facility variously as "a community recreation facility" (R. 221, Finding #5), a "community athletic center" (R. 217, Finding #2), a "community club" (R. 218, Finding #9), a "community athletic club" (R. 218, Finding #15), and that the tract will be used for a "community center" (R. 220, Finding #22). However, nowhere does the Board make subsidiary findings in support of its conclusory finding that the proposed facility is a community center, or otherwise point to substantial evidence in the record supporting its use of these descriptions.
The evidence in the record is that the proposed facility will not be open to the members of the community at large.[6] Rather, the Georgetown Recreation Club will operate the facility as a private club[7] and limit its use to members and their guests (R. 118). Although the club gives the assurance that it will not discriminate on the basis of race, color, or creed and will accept members not just from George-town but from the greater Washington area, it concedes that its facilities would be available only to those willing and able to pay the membership entrance and operating fees (R. 50, 105) and that the number of memberships offered would be limited (R. 63, 115). See Jeffery v. Planning and Zoning Board of Appeals, 155 Conn. 451, 232 A.2d 497, 501 (1967) ("Although no discriminatory restrictions based on race, creed, or status in life are imposed on membership, the members comprise no substantial portion of the general public of the area.") See also Tullo v. Township of Millburn in County of Essex, 54 N.J.Super. 483, 149 A.2d 620, 627 (1959);[8] Loder v. Goodday, 25 A.D.2d 671, 268 N.Y.S.2d 507, 509 (1966), aff'd mem., 19 N.Y.2d 727, 279 N.Y.S.2d 182, 225 N.E.2d 887 (1967).[9]Cf. Commissioner of Internal Revenue v. Lake Forest, Inc., 305 F.2d 814, 818 (4th Cir. 1962).[10]
*520 That there is a difference between a private club and a community center is made clear by the form of the regulations themselves which make separate provisions for each. Private clubs are permitted as a matter of right in R-4 and less restrictive Districts (§ 3104.39). Community center buildings are permitted as a matter of right in S-P and less restrictive Districts (§ 4101.36). A "community center building-local community organization" is permitted in R-1 Districts provided Board of Zoning Adjustment approval is first obtained (§ 3101.45).
In addition, the size of the proposed facility[11] is inconsistent with the concept of a special exception for a community center facility in this single-family residential zoning district. Counsel for applicant in fact testified that the capital and operating expenses of such a venture were so substantial as to preclude the feasibility of a community organization initiating such a project (R. 45). The purchase price of the property alone is $1 million, and this will entail a minimum payment by the lessee of $9,610 per month over a ten year period just to pay off the mortgage (R. 96). The additional buildings planned will further enlarge the fixed debt which must be borne in addition to the operating expenses. The Boys' Club, with a membership of about 400 and an average daily use of between 20 and 30 boys, requires some $68,000 annually to operate its present limited facilities (R. 36, 52). The applicant expressed doubt that the Georgetown community alone could support such a large-scale venture and for that reason did not want to restrict membership to Georgetown residents (R. 117).
For these reasons we are of the opinion that the Board erred in concluding that the applicant met the Zoning Regulation's requirement that the proposed facility be a community center facility operated by a local community organization. Since the regulation does not authorize the granting of a special exception for a private club in an R-1 District, the Board was without power to take such action and its order must be reversed.
So ordered.
NOTES
[1] Such a District is zoned for one-family detached dwellings.
[2] Apparently, the Boys' Club operation of the athletic fields was permitted in an R-1 Zoning District as a non-conforming use by a philanthropic or eleemosynary institution. Its subsequent erection of the swimming pool was permitted as a special exception under § 3101.45 of the Zoning Regulations.
[3] Tennis Promotion, Inc. executed a contract to purchase the tract from the Boys' Club for one million dollars. Tennis Promotion assigned its interest under this contract to the Georgetown Racquet Club, Inc., which in turn has arranged with the Georgetown Recreation Club to operate the club's facilities. (R. 99, 104-05, 108, 131.)
[4] Section 8207.2 provides:
Pursuant to authority contained in the Zoning Act of June 20, 1938 . . . the Board is authorized to grant special exceptions as provided in . . . these regulations where in the judgment of the Board such special exceptions will be in harmony with the general purpose and intent of the zoning regulations and maps and will not tend to affect adversely the use of neighboring property in accordance with said zoning regulations and maps. . . .
[5] Brawner Bldg., Inc. v. Shehyn, 143 U.S. App.D.C. 125, 131, 442 F.2d 847, 853 (1971); Hot Shoppes, Inc. v. Clouser, 231 F. Supp. 825, 830 (D.D.C.1964), aff'd per curiam, 120 U.S.App.D.C. 353, 346 F.2d 834 (1965); Mason v. Rock Creek Plaza, Inc., 164 F. Supp. 269, 277 (D.D.C. 1958), aff'd per curiam, sub nom. Rock Creek Plaza, Inc. v. Zimmerman, 105 U.S.App.D.C. 291, 266 F.2d 695 (1959); O'Boyle v. Coe, 155 F. Supp. 581, 583-584 (D.D.C.1957); Hyman v. Coe, 146 F. Supp. 24, 27 (D.D.C.1956).
[6] During the hearing the following colloquy occurred (R. 119):
CHAIRMAN SCRIVENER: . . . .
In other words, old Joe Blow walking down the street is not able to walk in?
MR. DEMEMBER: Oh, it is not going to be open to the public, paying charges and using the facility like that.
CHAIRMAN SCRIVENER: So it is a club?
MR. DEMEMBER: Yes. A club. See Carpenter v. Zoning Board of Appeals of Framingham, 352 Mass. 54, 223 N.E.2d 679, 681-682 (1967) ("The trial judge found `that Catalina is not a bona fide club' . . . Catalina's By-Laws are such that they could be applied so that anyone could come in off the street and use the swimming pool. . . . There was more than sufficient evidence to support the conclusion reached by the court below.") (Emphasis added.)
[7] Section 1202 of the Zoning Regulations defines a private club as "a building. . . used by an association organized for the promotion of a common social objective and not for profit, whose facilities are limited to its members and their guests."
[8] "It is difficult to conceive of a club where there are not some prerequisites or qualifications for membership which cannot be met by every resident of the municipality."
[9] Christ and Hopkins, JJ., dissenting:
The Zoning Board of Appeals may not enlarge the powers delegated to it by the ordinance; under the guise of `neighborhood or community centers serving primarily local residents,' it may not permit a use fundamentally at variance with the purpose and function of the activities thereby authorized . . . the ordinance describes an organization serving primarily public interests, and with facilities available to the public. [Citations omitted.]
[10] "The advantages offered by Lake Forest, Inc. do not fulfill [the] definition [of a civic organization]. While they are available to all citizens eligible for membership, the benefits are not municipal or public in their nature. Nor are they bestowed upon the commonalty as such. . . . Lake Forest, Inc. is not a movement of the citizenry or of the community. Rather, at most it is a venture . . . for securing its members living quarters." [Footnotes omitted.] (Emphasis added.)
[11] The plan submitted to the Board proposed buildings taking up somewhat more than one-half the area of the four acre tract. The building to house the indoor tennis courts is designed to look as if it were three buildings. It is some 36,000 square feet in size and is to be situated along S Street (R. 34, 43, 100). A second building will be erected near the rear part of the tract, as seen from S Street (R. 100). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1426371/ | 56 S.W.3d 799 (2001)
Mark Allan HEINCELMAN, Appellant,
v.
STATE of Texas, Appellee.
No. 11-00-00363-CR.
Court of Appeals of Texas, Eastland.
August 23, 2001.
*800 Mike A. Smiddy, Attorney At Law, Mineral Wells, for appellant.
Tim Ford, Dist. Atty., Palo Pinto, for appellee.
Panel consists of ARNOT, C.J., and WRIGHT and McCALL, JJ.
Opinion
ARNOT, Chief Justice.
The jury convicted appellant of possession of a controlled substance in an amount of 1 gram or more but less that 4 grams and assessed his punishment at confinement *801 for 5 years and a $5,000 fine. We affirm.
In his first and second points of error, appellant argues that the trial court erred in admitting evidence seized as a result of a search of his vehicle because there was no probable cause for the search and because the evidence was insufficient to prove that consent to search was voluntarily given. Appellant filed a motion to suppress on September 15, 2000, urging that he was arrested without probable cause. At the conclusion of the State's evidence at the guilt/innocence phase of the trial, the trial court heard argument on the motion and subsequently denied the motion.
In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App. 1997). We must afford the same amount of deference to the trial court's rulings on "mixed questions of law and fact," such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo "mixed questions of law and fact" not falling within the previous category. Guzman v. State, supra. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Cr.App.1998). A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court's ruling and sustain the trial court's ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.
Officer Ken Dabbs, with the Cross Timbers Narcotics Task Force, testified that on February 28, 2000, he was patrolling Interstate 20 when he observed the vehicle appellant was driving change lanes without using a turn signal. Appellant was driving a Penske rental truck, and Officer Dabbs stopped the vehicle for the traffic violation. Officer Dabbs asked appellant for the rental agreement for the truck, but appellant was unable to produce a rental agreement. Appellant had a California driver's license, and Officer Dabbs contacted dispatch to check for outstanding warrants and also to check the vehicle identification number on the truck to determine whether the vehicle had been reported stolen. Officer Dabbs later issued appellant a warning ticket for the traffic violation.
While he was waiting for the returns from dispatch, Officer Dabbs began talking to appellant. Appellant told Officer Dabbs that he was coming from El Paso, that he owned a moving company, and that he was moving household goods. Appellant said that he had picked up the items from a storage facility in El Paso. Appellant told Officer Dabbs that he had flown from California to Missouri, where he rented the truck, and then went to El Paso. At the time of the stop, appellant was traveling eastbound on the interstate. The passenger in the truck told Officer Dabbs a conflicting story. The passenger stated that the items in the truck were picked up from an individual's house in El Paso, rather than from a storage facility.
Officer Dabbs testified that he asked appellant if he was in possession of any stolen property, drugs, or weapons and that appellant responded that he was not. Officer Dabbs then asked appellant for consent to search the back of the truck, and appellant said, "[Y]es, we could look." *802 Appellant retrieved the key, unlocked the back of the truck, and opened the back of the truck for Officer Dabbs. When he looked inside the truck, Officer Dabbs did not see household items as appellant had previously stated. Officer Dabbs looked inside of some bags and boxes that were in the truck and found various drug paraphernalia, including pipes, electronic scales, and a "hitter" which contained a "white powder" substance.
Officer Dabbs called for backup and handcuffed both appellant and the passenger. Deputy Todd Baker drove the truck to the sally port of the Palo Pinto County Jail where Officer Dabbs conducted a further search. During that search, Officer Dabbs found various items used to manufacture methamphetamine; more drug paraphernalia; and false bottom cans, one of which contained capsules with white powder. Appellant was also searched at the jail; and, from his person, officers recovered another "hitter" and an address book with drug paraphernalia. The methamphetamine seized from appellant and the vehicle totaled 1.58 grams.
Appellant first argues that there was no probable cause for his detention after a traffic stop. When a traffic violation is committed within an officer's view, the officer may lawfully stop and detain the person for the traffic violation. Walter v. State, 28 S.W.3d 538 (Tex.Cr.App.2000); McVickers v. State, 874 S.W.2d 662 (Tex. Cr.App.1993). During a valid traffic stop, an officer is permitted to detain the individual in order to check for outstanding warrants. Walter v. State, supra.
The record shows that Officer Dabbs stopped appellant for a traffic violation and detained appellant to check for outstanding warrants and to determine whether the vehicle had been reported stolen. While waiting for the returns from dispatch, Officer Dabbs engaged appellant in a conversation and became suspicious that appellant was involved in criminal activity. Officer Dabbs asked for and received consent to search appellant's vehicle.
Appellant next argues that his consent to search was involuntarily given. To be valid, a consent to search must be positive and unequivocal and must not be the product of duress or coercion, either express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The State bears the burden of proving voluntary consent by clear and convincing evidence. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Cr.App. 1997).
Officer Dabbs asked appellant for consent to look in the back of the truck, and appellant said that he "could look." Appellant retrieved the key to the back of the truck and opened it for Officer Dabbs. At trial, when appellant's attorney asked Officer Dabbs whether he believed that appellant gave him permission to check everything that was in the back of the truck, Officer Dabbs responded, "Everything that was in the back of the truck, I asked for." Although Officer Dabbs did not inform appellant that he could refuse to consent to the search, there is no evidence in the record that the consent was obtained by duress or coercion. See Estrada v. State, 30 S.W.3d 599 (Tex.App.-Austin 2000, pet'n filed).
The record shows that appellant was lawfully stopped pursuant to a traffic violation and that, while he was waiting for a return from dispatch, Officer Dabbs received consent to search appellant's vehicle. Before he received information from dispatch that the vehicle was not stolen and that appellant did not have any outstanding warrants, Officer Dabbs discovered methamphetamine in the truck. Appellant has not shown that the trial court abused its discretion in admitting the evidence *803 seized during the search of his vehicle. Appellant's first and second points of error are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1426374/ | 56 S.W.3d 704 (2001)
Bruce Eugene McLEOD, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-99-01157-CR.
Court of Appeals of Texas, Houston (14th Dist.).
August 16, 2001.
*705 Richard B. Kuniansky, Houston, TX, for appellants.
Rikke Burke Graber, Houston, TX, for appellees.
Panel consists of Justices YATES, FOWLER, and WITTIG.
OPINION
FOWLER, Justice.
Appellant pled not guilty to intoxication manslaughter and felony driving while intoxicated ("DWI"). A jury found appellant guilty of intoxication manslaughter and made a finding that appellant's motor vehicle was a deadly weapon. The jury sentenced appellant to 18 years' confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000.00 fine. In two points of error, appellant appeals his conviction, and contends that the trial court erred (1) by permitting the reading of an indictment to the jury that contained prior convictions for driving while intoxicated in an intoxication manslaughter case, and (2) by permitting a third driving under the influence ("DUI") conviction to be proved during the punishment phase of trial with a document that was not properly authenticated and which contained hearsay. We affirm.
FACTUAL BACKGROUND
Twelve-year-old M.Q.M. ("complainant") left home on his bicycle on the afternoon of October 31, 1998Halloween. He and some other children were riding their bicycles alongside Anderson Road to a drug store so that the complainant could buy some makeup for his Halloween costume. At the same time, appellant was driving his car on Anderson Road. According to appellant, the complainant swerved into *706 the path of his car; appellant collided with the complainant and his bicycle.
Fred Taylor, a witness who also was driving along Anderson Road, saw the car hit the complainant. Taylor testified that, after the impact, the car continued down Anderson Road in an erratic manner, weaving from side to side and into the lane of oncoming traffic. The car finally came to a stop facing the wrong direction in the lane of oncoming traffic. The force of the impact had hurled the complainant through the passenger side windshield of appellant's car. Taylor parked his car across the street, approached the vehicle, and looked inside. He saw the complainant slumped under the glove compartment.
When appellant emerged from his car, he was visibly distraught. After Taylor told appellant the complainant was dead, he stated, "It wasn't my fault. It wasn't my fault. He was just in the way." Taylor testified that appellant's speech was impaired, and that he was wobbling and unable to control his actions.
The evidence showed appellant was clearly intoxicated. The officers at the scene smelled alcohol on appellant. The intoxilyzer and blood tests that appellant consented to revealed that his blood alcohol content was well over the legal limit.[1]
At trial, the issue of causation was hotly contested. The State's own witnesses testified that the complainant swerved in front of appellant's car. Appellant called an accident reconstruction expert, Dirk Smith, who testified at length regarding "perception reaction time," which he defined as the time from which an unexpected event first becomes perceived until the time at which a person can first react to the perceived event. Smith testified that in this case, based upon factors such as the speed of appellant's vehicle, the speed of the bike, and the angle of the collision, appellant would have had only 0.4 to 0.6 of a second to avoid the accident. Smith further testified that the average "perception reaction time" is 1.5 to 2.0 seconds. As a result, Smith concluded that appellant's consumption of alcohol did not cause the complainant's death.
PROCEDURAL HISTORY
Initially, the State indicted appellant for intoxication manslaughter only. Appellant then filed a motion in limine, requesting that the State be prohibited from making any reference during the entire trial to prior criminal offenses, particularly prior instances of DWI. The State then filed a second indictment which alleged both intoxication manslaughter and felony DWI (also known as third offender DWI).[2] Appellant filed a motion that the paragraphs of the indictment alleging felony DWI (that is, the paragraphs relating to the two prior alleged DWI convictions) not be read to the jury. At a hearing on this motion, just prior to trial, appellant offered to stipulate to the two prior DWI convictions. Appellant also argued that reading these paragraphs would be prejudicial and unnecessary to confer jurisdiction on the court, because the court already had jurisdiction over felony DWI because it was a lesser included offense of the intoxication manslaughter charge. The State argued that it needed to plead jurisdictional facts *707 for felony DWI precisely because it is a lesser included offense of intoxication manslaughter, and as such, the jury could have found appellant guilty only of the felony DWI charge. The State argued that, if the jury wanted to find appellant guilty of DWI rather than of intoxication manslaughter, the jurisdictional elements of felony DWI had to be pled in the indictment, otherwise appellant's punishment would be for a misdemeanor, rather than a felony. The court overruled appellant's motion.
The court informed the venire about felony DWI, and the lawyers for both sides questioned the venire about it. After the jury was empaneled, the State read the indictment at the beginning of trial, mentioning the two prior convictions to which appellant had agreed to stipulate. In its case-in-chief, the State did not present evidence of the prior convictions.
DISCUSSION AND HOLDINGS
A. Felony DWI
In his first point of error, appellant alleges that the trial court erred by permitting the reading of the indictment to the jury in this case because it contained allegations of two prior DWI convictions. For two reasons, he argues that this was error: (1) where he offered to stipulate to the DWI convictions, reading those to the jury was of little probative value, but was outweighed by the potential prejudice of the prior convictions, and thus violated Rule 403 of the Texas Rules of Evidence; and (2) to the extent that the paragraphs of the indictment conferred jurisdiction on the trial court for the felony DWI charge, they were unnecessary, and thus violated Rule 403, because the court already had jurisdiction over the entire case because of the intoxication manslaughter charge. Both of these claims are controlled by the Texas Court of Criminal Appeals' decision in Tamez v. State, 11 S.W.3d 198 (Tex.Crim. App.2000).
1. Tamez v. State
In Tamez v. State, the State indicted Tamez for felony DWI, and alleged in the indictment that appellant had six previous misdemeanor DWI convictions. Id. at 199. Prior to trial, Tamez offered to stipulate to two previous DWI convictions if the court would prevent the State from mentioning, in any way, his prior DWI convictions. Id. The court refused. Id. Additionally, during trial, the State introduced the six judgments against Tamez into evidence during its case-in-chief. Id. The court of criminal appeals first concluded that the two prior convictions were jurisdictional allegations rather than merely enhancement allegations. Id. Tamez's willingness to stipulate to two prior DWI convictions vested the trial court with jurisdiction. Id. at 201. Thus, since the trial court already had jurisdiction, any additional prior DWI convictions wholly lacked probative value and, therefore, could not be read to the jury. Id. at 202-03. The court went on to hold that when a defendant stipulates to the two prior DWI convictions, the State may, at the beginning of trial, read the indictment to the jury, including allegations of those two convictions, but the State is precluded from proving those convictions during its case-in-chief. Id.
2. The Trial Court's Jurisdiction
Though appellant was convicted only on the intoxication manslaughter charge, he was also charged with felony DWI. At trial, appellant argued that felony DWI is a lesser included offense of intoxication manslaughter, so the State's inclusion of two prior DWI convictions in the indictment prejudiced him. On appeal, appellant adopts a slightly different approach, arguing that the court had jurisdiction *708 over the entire case solely due to the intoxication manslaughter charge.
A trial court has no jurisdiction to convict a defendant of an offense not charged in an indictment unless that offense is a lesser included offense of the crime charged. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App.1980); Foster v. State, 834 S.W.2d 494, 497 (Tex. App.Houston [14th Dist.] 1992, no pet.). Tamez held that, for a court to gain jurisdiction over a felony DWI charge, the State must include two prior DWI convictions in the indictment. 11 S.W.3d at 201. Because felony DWI includes the jurisdictional prerequisites of two prior DWI convictions, and intoxication manslaughter does not, felony DWI is not a lesser included offense of intoxication manslaughter. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). Thus, here, the intoxication manslaughter indictment, alone, did not confer jurisdiction on the trial court over the felony DWI. Appellant's argument to the contrary is overruled.
3. Reading the Indictment
Our resolution of appellant's claim that the DWI convictions should not have been read to the jury is also controlled by the Texas Court of Criminal Appeals' holding in Tamez. When faced with an argument analogous to appellant's, the court held,
[a] balance must be struck between Article 36.01(a)(1), which authorizes the reading of the full indictment (and by this action implicitly authorizes the proof of the previous convictions in the State's case-in-chief), and Rule 403, which proscribes this evidence if there is a strong likelihood that the jury may improperly use it in reaching its verdict. In cases where the defendant agrees to stipulate to the two previous DWI convictions, we find that the proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief. This allows the jury to be informed of the precise terms of the charge against the accused, thereby meeting the rationale for reading the indictment, without subjecting the defendant to substantially prejudicial and improper evidence during the guilt/innocence phase of trial.
11 S.W.3d 198, 202 (Tex.Crim.App.2000). Accordingly, in this case, the proper balance has been struck. Unlike Tamez, here the State charged appellant in a single indictment with intoxication manslaughter and felony DWI. However, just as the Tamez court instructed, (1) appellant agreed to stipulate to the two previous DWI convictions, (2) the State read the indictment at the beginning of trial, and (3) the State presented no evidence at the guilt-innocence phase regarding the jurisdictional enhancements. As a result, the State was allowed to present both theories of guilt to the jury, while appellant was protected from the prejudice that might have resulted had the State been able to prove the prior convictions in its case-in-chief.[3]
*709 In addition to following the Tamez requirements, the trial court charged the jury first on intoxication manslaughter and then on felony DWI. The two prior DWI convictions are first mentioned in the felony DWI portion of the charge. There, the court instructed the jury "that such evidence cannot be considered by you as in any manner proving or tending to prove that the defendant did or did not drive or operate a motor vehicle in a public place while intoxicated on or about the 31st day of October, 1998."
In short, Tamez considered the prejudicial effect that could occur in a case like this. Although the present case involves a single indictment alleging intoxication manslaughter and felony DWI, while Tamez involves excessive allegations of prior DWI convictions, Tamez analyzes the prejudicial effect that could occur when a jury, through the indictment, is informed that the defendant has two or more prior DWI convictions. The requirements set forth in Tamez are tailored to ensure that the jury knows of the precise terms of the particular charge against the accused, while minimizing the likelihood that the jury will "improperly focus on the previous convictions or the defendant's `bad character.'" Id. at 201-02. We find that applying the Tamez requirements to this case strikes the balance sought by the Tamez court, and substantially lessens the likelihood that the jury improperly focused on appellant's prior DWI convictions, or appellant's bad character, in determining his guilt under either the intoxication manslaughter or felony DWI charge. See id.
Consequently, we hold that the trial court did not err in permitting the State to read the prior DWI convictions to the jury in this case. Appellant's first point of error is overruled.
B. Admissibility of Evidence During Punishment Phase
In appellant's second point of error, he contends that the trial court erred in allowing the State to prove, during the punishment phase of trial, that appellant was convicted in Kansas in 1993 of DUI. Appellant argues that this conviction was proven by a document that was not properly authenticated, and contained inadmissible hearsay.
The document appellant challenges, State's exhibit 35, includes a certification form signed by a deputy officer in Kansas. The certification form states that the officer is the legal custodian of the attached abstract of record and fingerprint card on file at the Kansas Bureau of Investigation. This document was notarized and bore the seal of a Notary Public for the State of Kansas. State's exhibit 36 is a certified copy of a journal entry from the district court of Marshall County, Kansas. It reflects appellant's entry of a guilty plea on December 22, 1993 to the offense of DUI. The State introduced both of these exhibits to demonstrate that appellant, Bruce E. McLeod, was the same Bruce E. McLeod that entered a plea of guilty to DUI in Kansas. Appellant does not challenge on appeal, and did not challenge at trial, the admissibility of State's exhibit 36.
1. Authentication
Through authentication, the proponent of an exhibit proves that the exhibit is what its proponent claims. Tex.R. Evid. 901(a). A writing cannot be admitted into evidence until the proponent establishes its identity and authorship. Id. This can be *710 accomplished in several ways, including by self-authentication. Id. at 902. A document that is "accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments" is self-authenticated. Id. at 902(8). We hold that under rule 902(8), State's exhibit 35 was self-authenticated.
2. Hearsay
Rule 902 only addresses the authentication issue. Even though a document may be self-authenticated, it still may be inadmissible because it is hearsay. At trial, appellant objected that State's exhibit 35 contains hearsay and stated that "on the very back page, it's got some notes, including: `leaving scene of accident.'" Appellant complained that he could not cross-examine that statement. The State responded that it "would be prepared to redact that." The court admitted State's exhibit 35 contingent on the redaction of that statement. The exhibit, as found in the record, appears to have been redacted accordingly.
On appeal, appellant complains that the fingerprint card was also hearsay. The fingerprint card contains fingerprints, appellant's signature, and identification information such as appellant's date of birth, race, sex, height, weight, hair color, place of birth, social security number, date of arrest, and address. Hearsay is a verbal or non-verbal statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Public records are excepted from the hearsay exclusion if they set forth matters observed under a legal duty to report such matters, excluding, in criminal cases, matters observed by police officers and other law enforcement personnel. Id. at 803(8)(B). The exclusionary clause, which prohibits from this hearsay exception matters observed by police officers, only applies where possible impairment of judgment is implicated, such as observations made by officers at the scene of a crime. Pondexter v. State, 942 S.W.2d 577, 585 (Tex.Crim.App.1996). The information conveyed in the fingerprint card was made under a "duty imposed by law as to which matters there was a duty to report." Tex.R. Evid. 803(8)(B). The information contained on the fingerprint card reflects routine observations, made in connection with appellant's former DUI conviction. The information contained on the fingerprint card should therefore be presumed reliable. Pondexter, 942 S.W.2d at 585. Thus, the trial court did not err in admitting the fingerprint card, and appellant's second point of error is overruled.
Having overruled both of appellant's points of error, we affirm the judgment of the trial court.
NOTES
[1] The legal limit at the time of this offense was .10. The intoxilyzer measured appellants blood alcohol level at .156, while the blood test measured it at .13.
[2] The offense of DWI, while ordinarily a misdemeanor, becomes a felony of the third degree upon proof that the offender has previously been convicted two times of an offense relating to the operation of a motor vehicle while intoxicated. Tex. Pen.Code Ann. § 49.09(b) (Vernon Supp.2000).
[3] In appellant's brief, he states that the court mentioned to the venire that felony DWI entails two prior DWI convictions. Appellant cites to the voir dire testimony of several veniremembers who expressed concern that evidence of prior DWI convictions would lead them to believe appellant must be guilty of the crime(s) charged. However, the record reflects that every veniremember who expressed such a concern was struck by agreement of the State and the defense. To that end, none of the veniremembers selected for jury service in this case voiced such a concern. Therefore, those concerns are no evidence that this jury was tainted by the appellant's two prior DWI convictions. Moreover, no other evidence in the record reflects that the jury made its decision contrary to the court's charge and, instead, on inappropriate assumptions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2391738/ | 48 F.Supp. 928 (1943)
SECURITIES & EXCHANGE COMMISSION
v.
OKIN.
Civ. 19-560.
District Court, S. D. New York.
March 1, 1943.
*929 John F. Davis and Edward H. Cashion, both of Philadelphia, Pa., and Sidney H. Willner and John J. Prendergast, both of New York City, for Securities & Exchange Commission.
Samuel Okin, of New York City, pro se.
RIFKIND, District Judge.
This is a motion by plaintiff to punish defendant for contempt for violation of an interlocutory injunction issued by this court on January 7, 1943.
It is undisputed that defendant had knowledge of the order, that it applied to him and that after he had such knowledge he transmitted to the stockholders of Electric Bond and Share Company a letter dated January 11, 1943, copy of which is annexed to the moving affidavit.
Extensive affidavits were submitted by both sides and the matter was argued at great length on two days, the defendant who is a lawyer appearing in his own behalf. At the opening of the hearing defendant was asked by the court whether he desired a trial by jury of the issues of fact and whether he wished a stenographic record made of the argument. He answered both questions in the negative. At the close of the argument defendant stated that if the court should feel disposed to adjudge him in contempt he desired an opportunity to present additional evidence on the issues of fact. Plaintiff does not request any further hearing. I find that the application can be disposed of on the undisputed facts and that a further hearing is not warranted.
Upon the argument plaintiff relied upon six specific objections to the letter of January 11, 1943, and I shall treat any other grounds for its motion as abandoned. With respect to each objection the question is whether the statement made or the omission complained of renders the communication false and misleading and whether, if so, it comes within the condemnation of the injunction. They will be treated seriatim.
1. The first item is embraced in the following paragraph: "At this point, I also instituted a proceeding in the Supreme Court of the State of New York to compel the Electric Bond and Share Company to divest itself of control over the management of Electric Power & Light Corporation and American Power & Light Company and its subsidiaries which was so detrimental to the interests of the Electric Bond and Share Company and its stockholders as hereinafter stated. Although many millions of the company's assets had been invested in the stock of these companies, their market value had fallen to such an extent that they did not represent *930 more than approximately three (3%) per cent of the value of the entire assets of the company and the income therefrom was so comparatively small with respect to the entire income of the company that it was obvious that the operation of these many companies was not only in my opinion causing substantial losses to the Electric Bond and Share Company but in addition was for the benefit solely of enabling the business associates and friends of the management of Electric Bond and Share Company to continue to receive very lucrative salaries."
Defendant admitted upon the argument that the operation of the mentioned companies did not, in fact, cause "substantial losses" to Electric Bond and Share Company in the sense that outgo exceeded income; that he really meant that the capital invested could be more profitably employed elsewhere. In his affidavit defendant has offered additional explanations. None of them makes the statement true. It would be generous to call the statement misleading. The circulation of such a statement was clearly forbidden by the injunction and constitutes a violation thereof.
2. The second item to which objection is taken relates to a proposed subordination of claims by Electric Bond and Share Company against United Gas Corporation. The amount of these claims was $52,925,000. It was proposed that these claims be subordinated to enable United Gas Corporation to sell $70,000,000 in bonds to insurance companies and to use $55,000,000 of the proceeds to redeem its outstanding first preferred stock. The letter states: "In my opinion if this subordination had taken place, it would have caused very substantial losses to Electric Bond and Share Company; probably would have completely destroyed the possibility of ever collecting the said $52,925,000. claim against the United Gas Corp., which is the largest single asset owned by the Electric Bond and Share Company; and the result would have been most disastrous to the entire financial structure of the Electric Bond and Share Company".
It is contended by plaintiff that there is no ground for the opinion expressed and that it is false and misleading. This contention is based in part on the assertions that the validity of the claims of Electric Bond and Share Company against United Gas Corporation and their priority were shrouded in considerable doubt; that it was not true that the proposed subordination would render the claims uncollectible; and that in no event would the result be disastrous to Electric Bond and Share Company. Whether there is any ground for the opinion expressed by the defendant is too close a question to be decided on the affidavits submitted. The injunction did not prohibit the circulation of the quoted statement, if it is true. It enjoined the publication only of false and misleading statements. It cannot be denied that if there were but one truth and that a knowable one the criticized paragraph would be found wanting. From the affidavits before me it is fairly clear that even if there be some basis for the opinion expressed it is not broad enough to justify the superlatives "completely" and "most disastrous". An experienced reader would readily perceive that hyperbole is one of the author's favorite tools and that he, therefore, chafes under the restraints of Rule X-14A-5 of the Regulations of the Securities and Exchange Commission and of the injunction. Nevertheless it seems to me that the letter must be read with some regard to the fact that it belongs to the class of contentious writings and that the art of advocacy has always taken some liberties with the "whole truth". Furthermore, it is a letter by a minority stockholder in opposition to the management. That factor does not constitute a license to lie but it does afford the reasonable expectation that under-statement or exaggeration will be answered a condition not always to be anticipated when the communication reviewed issues from the management.
In view of the doubt on the underlying issue and the fact that the statement is tendered as an opinion in a setting of contentious advocacy, I am unwilling to hold that defendant was contumacious in circulating the quoted paragraph.
3. The third objection is addressed to the following quotation: "On February 20th, 1942, the Securities and Exchange Commission made an order wherein it permitted the Electric Bond and Share Company to only use $2,000,000 of the said $5,000,000 towards the purchase of its preferred stock and retained jurisdiction as to the remaining $3,000,000 `pending the formulation by the company of an exchange plan or plans for Distribution of Assets to the Preferred Stockholders.'"
*931 It is asserted by plaintiff that the quoted clause is improperly quoted because it is capitalized and that it is misleading because it induces security holders to believe that the Commission intends that all of the assets of the corporation be distributed to the preferred stockholders when, in fact, the Commission has never taken any such position. It is not questioned that the quotation is accurate except for its capitalization. Nevertheless it is clearly misleading in its new setting. Read in the context of the Commission's opinion (Release No. 3339) in an atmosphere of lawyers' idioms it conveys one meaning. In its new context, in its headlined form, it is very likely to convey the impression that the Commission is awaiting plans for the distribution of all the corporate assets to the preferred stockholders. Defendant is a lawyer and alive to the different connotation of the clause against its new background. That is why he selected that quotation. I conclude that the circulation of this paragraph was violative of the injunction.
4. In the letter of January 11, 1943, defendant states that he desires to bring about the removal of eight named directors. He is silent about the ninth director, one, Mr. Monroe, although Monroe has stated that he would refuse to serve on the board with defendant. Plaintiff's affidavit states its position thus: "Mr. Monroe's present intention not to serve with Mr. Okin is, of course, a fact and it is a fact which the stockholders of Electric Bond and Share Company are certainly entitled to know in choosing between the present Board of Directors of Electric Bond and Share Company and the Board of Directors which Mr. Okin asks to substitute for it".
There is no dispute about the facts. However, it strikes me that we should not expect such an excess of virtue on the part of defendant. Defendant is not seeking Monroe's removal. Must he nevertheless publish Monroe's refusal to serve with him on the board? Monroe may change his mind. The management or Monroe can send another communication to the stockholders. Both Rule X-14A-5 and the injunction are intended to govern ordinary mortals, not saints. They should not be so construed as to impose canons of conduct too lofty for human acceptance. Were the defendant to supply the omission which the plaintiff advocates he would expose himself to ridicule and render his campaign futile. I, therefore, do not find that the omission complained of constitutes a violation of the injunction.
5 & 6. The fifth and sixth items relate to the failure of defendant to correct two false or misleading statements circulated in previous communications. The injunction order contained no express provision requiring correction of previous misstatements. It did express a prohibition against violations of the rules and regulations of the Securities and Exchange Commission. Rule X-14A-5 prohibits solicitation by communications which fail "to correct any statement in any earlier communication * * * which has become false or misleading". But I have come to the conclusion that insofar as the injunction broadly restrained violation of the Commission rules it was insufficiently precise. The order has since been resettled but only after the conduct here complained of had occurred. In Securities and Exchange Commission v. Okin, 132 F.2d 784, 787, decided by the Circuit Court of Appeals, Second Circuit, on January 4, 1943, the court said, "If the Commission can prove this, it may be able not only to secure from the district court an injunction against further publication of the `false' or `misleading' assertions, but an affirmative direction that before the defendant proceeds to solicit any proxies, he shall correct the misinformation which he has already spread among shareholders".
In the instant case the injunction order did not contain such an affirmative direction. In this respect, therefore, I find that defendant was not contumacious.
For the reasons stated, the defendant is adjudged guilty of contempt; and in order to purge himself defendant is required, within ten days after the making of an order hereon, to send a letter to all stockholders of Electric Bond and Share Company correcting the misstatements in his prior communications, the form of such communication, if not agreed upon between the parties, to be settled with the order; otherwise the defendant is fined an amount sufficient to defray the expense of printing and mailing, postage prepaid, of a copy of the order to be entered hereon, together with a brief explanatory statement, to all stockholders of Electric Bond and Share Company to be paid to the plaintiff and to be employed for the purpose indicated.
Submit findings, together with affidavits as to such expense and settle order on two days' notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2391734/ | 97 A.2d 107 (1953)
DOWNES
v.
UNITED ELECTRIC RYS. CO.
DOWNES
v.
UNITED ELECTRIC RYS. CO.
Ex. Nos. 9318, 9317.
Supreme Court of Rhode Island.
June 5, 1953.
John C. McOsker, Providence, for plaintiffs.
Frank J. McGee, Providence, for defendant.
CAPOTOSTO, Justice.
These two actions of trespass on the case for negligence by a father and his son were tried together to a jury in the superior court and after verdicts for the plaintiffs the cases were brought to this court on identical exceptions. The only exceptions pressed before us, all others being expressly waived, relate to the refusal of the trial justice to direct a verdict for defendant and to his denial of its motion for a new trial in the case of the son Arthur V. Downes, and in the case of the father Lester R. Downes, to the denial of such motion subject to a remittitur which has been duly filed. No question of damages is involved. Since the father's case is dependent upon that of his son, we shall hereinafter consider the points raised as though the case of the son was the only one here, but our conclusions will apply to both.
The accident happened December 3, 1947 about 6:30 p.m. on the northerly crosswalk of Dorrance street, which runs approximately north and south, at its intersection with Weybosset street, which runs east and west, both being main and heavily-traveled highways in the city of Providence. Westminster street lies to the north of and runs parallel to Weybosset street. Weather and lighting conditions were good.
The defendant's bus, which was northbound, struck plaintiff as he was crossing from the northeasterly to the northwesterly corner of Dorrance and Weybosset streets on the above-described crosswalk. Before reaching the intersection heretofore mentioned the bus had to pass the main entrance to the Narragansett Hotel, which was located *108 about 200 feet to the south. It clearly appears of record that plaintiff, who was on his way home from work, was struck by the right front end or front right side of the bus and that he was thrown to the ground, falling on his back about opposite the front door of the bus. At the time of the impact he was on the crosswalk and some seven to ten feet from the curb of the northeasterly corner of Dorrance street. In addition to certain minor injuries, plaintiff sustained a "compound basal skull fracture" with "a laceration and tearing of the brain," which latter condition required a "craniotomy," that is, the opening of the skull at the "temporal region" on both sides.
There was considerable testimony both from pedestrians and bus passengers respecting what they saw or believed they had seen at the time of the accident, estimates of the speed of the bus and of its distance from fixed points at different times, a description of certain pertinent parts of the bus, the position of plaintiff's body on the highway immediately after the collision, and photographs designed to illustrate various phases of the testimony. It is unnecessary to relate such evidence in detail, as in our judgment an outline in general terms of the claims of the respective parties appearing of record is sufficient in the circumstances.
The evidence for plaintiff in substance was that before leaving the curb at the northeasterly corner of the intersection he looked to his left across Weybosset street for northbound traffic on Dorrance street and saw the bus about opposite the main entrance to the Narragansett Hotel, some 200 feet away, moving towards the southerly crosswalk of the intersection at a moderate rate of speed. He then looked to his right towards Westminster street and, seeing no traffic coming from that direction, he started to cross Dorrance street on the northerly crosswalk of the intersection. As soon as he stepped off the curb onto the roadway he looked up Weybosset street to see if any vehicles coming from that direction might, by making a left turn into Dorrance street, impede his progress. Seeing no such traffic, he continued to cross and when he had gone about ten feet he again looked to his left and saw the bus "right on top" of him, that is, "15 to 18 feet away" and moving towards him at a speed of "Between 28 and 30 miles an hour." Upon being asked what he did in that situation, plaintiff's answer was: "Well, the bus seemed to be veering toward me, I just froze, I couldn't do anything, and I was struck."
The defendant's version of the accident was quite different. In brief, the evidence in its behalf was to the effect that the operator of the bus saw plaintiff, who was looking towards Westminster street, just as he was stepping from the curb at the corner in question, at which time the bus was ten or twelve feet from him and moving at a speed of eight to ten miles an hour; that the operator thereupon slowed down "letting the bus roll across"; that when plaintiff had stepped into the gutter of the street, "he stopped, hesitated" and then, suddenly taking two or three steps while still looking toward Westminster street, he "walked right square" into the moving bus, which "came to a stop the moment he walked into it"; and that he fell to the ground flat on his back at a right angle with the bus, his head being within ten inches of the curb at the northeasterly corner. There was no evidence that any warning signal was given by the operator of the bus, nor was there any evidence that he tried to stop before striking plaintiff.
Under the exception to the denial of its motion for a directed verdict defendant contends "that in walking ten feet out into the street and ignoring the oncoming bus until it was on top of him, so close that he said that he could not even take one step backwards, he was guilty of contributory negligence as a matter of law." The contention as thus expressed disregards material evidence which, if believed, had an important bearing on the question of plaintiff's due care. In determining that question it is necessary to keep in mind that the accident happened at the intersection of heavily-traveled highways and that, according to plaintiff's testimony, the bus was well to the south of the intersection when he started to cross Dorrance street on its northerly crosswalk.
*109 In the circumstances as related by plaintiff, ordinary care would require that he reasonably protect himself against danger not only from the bus but also from vehicles that might be coming towards him from other directions. Considering the location of the bus, as testified to by him, when he started to cross Dorrance street he had a right to assume that it would approach and cross the intersection in accordance with the rules of the road, general laws 1938, chapter 88, § 2, and in compliance with traffic regulation No. 48, sec. 13, of the city of Providence, which regulation is in evidence and provides: "The operator of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block * * *." Andrews v. Penna Charcoal Co., 55 R.I. 215, 179 A. 696; Dembicer v. Pawtucket Cabinet & Builders Finish Co., 58 R.I. 451, 193 A. 622; Pucciarelli v. United Electric Rys., 64 R.I. 269, 11 A.2d 924.
The instant case is not to be confused with that class of cases where this court has held that the failure of a pedestrian to look before crossing a street in the path of oncoming traffic constitutes negligence as a matter of law. Sarcione v. Outlet Co., 53 R.I. 76, 163 A. 741. Here, when all the circumstances of record are taken into consideration and applying thereto our well-settled rule that on a motion for a directed verdict the evidence must be viewed most favorably to plaintiff, irrespective of its weight or the credibility of the witnesses, the question of whether plaintiff exercised the care that an ordinary prudent person would have used in the same or similar circumstances was clearly an issue of fact for the jury to determine. This exception is overruled.
The gist of defendant's contention as stated in its brief under the exception to the denial of its motion for a new trial is as follows: "If this Court does not feel that the plaintiff was guilty of contributory negligence as a matter of law, it is still another matter to say that the Trial Justice was correct in holding that the jury hadn't erred in finding that the weight of the evidence showed as a factual matter that the plaintiff was acting as an ordinarily prudent man would have acted in failing to look again before walking out in front of this bus that he knew was approaching." (italics ours) No question is raised by defendant that the trial justice misconceived or overlooked material evidence or that he failed to apply the correct rules of law governing such a motion. The gravamen of its complaint, which is based upon a lengthy argument reviewing and contrasting the evidence in detail, is that the testimony of its witnesses, when compared to that of plaintiff's witnesses, was entitled to greater credence.
On this point, defendant takes a distinctly opposite view of the credibility of the witnesses for plaintiff from that entertained by both the jury and the court. The trial justice in his rescript fully recognized that "The evidence as to liability was in close balance and was such that reasonable minds could naturally and fairly reach different conclusions thereon, credibility and weight being considered." Then, after reviewing in detail the evidence and the testimony of the material witnesses, he found that plaintiff was "a credible witness. The manner in which he testified was persuasive of his truthfulness. * * * While the testimony of the defendant's witnesses contradicted that of the plaintiff and his witnesses, this Court does not perceive that any material testimony of the plaintiff was thereby impeached or rendered inherently improbable. At most, the defendant's witnesses presented for the consideration of the jury conflicting testimony concerning the accident which was not of such character as to preclude the jury's finding for the plaintiff, as it did." His conclusion was that the verdict responded "to the true merits of the controversy" and did substantial justice between the parties.
It is a settled rule governing a motion for a new trial that where there is conflicting evidence of substantially equal weight, which would naturally and fairly lead different minds to different conclusions, and the jury in such circumstances has found for the plaintiff, a trial *110 justice is not justified in granting a new trial even though he may entertain doubt as to the correctness of the verdict, or his judgment inclines against the jury's finding. Ricci v. New England Transportation Co., 77 R.I. 12, 72 A.2d 833; Nichols v. New England Tel. & Tel. Co., 57 R.I. 180, 189 A. 14. Furthermore we will not disturb the decision of a trial justice on conflicting evidence unless it is clearly wrong, especially when the credibility of witnesses is a vital question in the case. In that connection the trial justice had the opportunity of seeing and hearing the witnesses while testifying, an advantage which we do not have. After reading the transcript and comparing our understanding of the evidence with the rescript of the trial justice, we cannot say that in the circumstances his decision was clearly wrong.
In each case all of the defendant's exceptions are overruled. The case of Arthur V. Downes v. United Electric Railways Company is remitted to the superior court for entry of judgment on the verdict. The case of Lester R. Downes v. same is remitted to that court for entry of judgment on the verdict as reduced by the remittitur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2391938/ | 823 A.2d 844 (2003)
360 N.J. Super. 472
David CLAYPOTCH and Beth Claypotch, his wife, Plaintiffs-Appellants,
v.
HELLER, INC., Defendant/Third Party Plaintiff-Respondent,
v.
FICEP, S.p.A., Third Party Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued April 1, 2003.
Decided May 30, 2003.
*847 Evan L. Goldman, Edison, argued the cause for appellants (Starr, Gern, Davison & Rubin, Roseland, attorneys; Mr. Goldman, of counsel and on the brief; Ben-David Seligman, West Orange, on the brief).
Harry D. McEnroe, Florham Park, argued the cause for respondent Heller, Inc. (Heim & McEnroe, attorneys; Mr. McEnroe and Mary Seitz, on the brief).
John R. Altieri, Hackensack, argued the cause for respondent FICEP, S.p.A. (Pino & Associates and Mr. Altieri, attorneys; Mr. Altieri, on the brief).
Before Judges SKILLMAN, LEFELT and WINKELSTEIN. *845
*846 The opinion of the court was delivered by SKILLMAN, P.J.A.D.
In this appeal, we consider the obligation of a plaintiff who has identified a defendant by a fictitious name to exercise due diligence in amending the complaint to state the defendant's true name when the fictitiously named defendant has received notice of the action by service of a third-party complaint. The appeal also involves interpretation of a 1995 statute that allows a retail seller of an alleged defective product to be relieved of liability by filing an affidavit correctly identifying the manufacturer.
On February 4, 1997, plaintiff sustained a serious injury to his right eye while operating a hydraulic punch press in the course of his employment at Norsal Distribution Associates (Norsal). According to the report of plaintiff's safety expert, the accident was caused by a design defect in the punch press's safety guard, which allowed a piece of metal to shoot from the machine into plaintiff's eye.
At the top on the operator's side of the punch press is an oval panel which states in large capital letters: "HELLER." This side of the punch press also has a small metal plate affixed which sets forth the machine's serial number, model, size and specifications. At the top of this plate is the name "FICEP," followed in small letters by "S.p.A." At the bottom the name "HELLER" is repeated in capital letters next to the name "E.G. HELLER'S SON, INC.," also in capital letters, followed by Heller's address and telephone number. The back of the machine has affixed another plate, which includes a sign with Heller's full corporate name and address, with the name "HELLER" and Heller's initials "EHG" in capital letters on both sides of the name.
Based on the labeling on the punch press, both plaintiff and his employer believed that the machine had been manufactured by Heller. Accordingly, on February 3, 1999, one day before expiration of the two-year limitations period, plaintiff filed this products liability action against Heller.[1] Although Heller was the only specifically named defendant, the complaint also joined as defendants "ABC Corporations 1-10" and "John Does 1-10," representing unidentified "manufacturers, distributors, designers, repairers and sellers" of the punch press.
On September 13, 1999, Heller filed a motion for leave to file a third-party complaint against FICEP, S.p.A. (FICEP). The certification in support of the motion simply stated that "[p]retrial discovery has revealed the existence of a person or entity potentially liable for all or part of plaintiff's claim in this suit, specifically third-party defendant FICEP, S.p.A.," without indicating the basis of Heller's claim *848 against FICEP. On October 8, 1999, the trial court granted Heller's motion.
Because FICEP is an Italian corporation, Heller had to get its third-party complaint and summons translated into Italian and served in Italy. This process took several months. FICEP filed an answer to Heller's third-party complaint on March 23, 2000 and actively participated in the litigation from that point forward.
On March 9, 2001, the trial court entered a case management order which required all discovery to be completed by June 1, 2001 and stated that a trial would be scheduled in July 2001.
On May 2, 2001, plaintiff moved to amend its complaint to name FICEP as a direct defendant. The trial court denied the motion on the ground that plaintiff had "known the identity of FICEP for over a year."
Shortly after the denial of plaintiff's motion to add FICEP as a defendant, Heller moved for summary judgment on the basis of N.J.S.A. 2A:58C-9(a), which provides that the seller of a product may be relieved of liability by "fil[ing] an affidavit certifying the correct identity of the manufacturer." In support of its motion, Heller filed an affidavit certifying that FICEP was the manufacturer of the punch press. On June 8, 2001, the trial court entered an order granting Heller's motion.
Plaintiff appeals from the orders denying its motion for leave to add FICEP as a direct defendant and granting Heller's motion for summary judgment. We reverse both orders.
I
Rule 4:26-4 provides in pertinent part:
In any action, ... if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.
The identification of a defendant by a fictitious name, as authorized by Rule 4:26-4, may be used only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint. Mears v. Sandoz Pharms., Inc., 300 N.J.Super. 622, 631-33, 693 A.2d 558 (App.Div.1997); Cardona v. Data Sys. Computer Ctr., 261 N.J.Super. 232, 235, 618 A.2d 864 (App.Div.1992). If a defendant is properly identified by a fictitious name before expiration of the applicable limitations period, an amended complaint substituting a fictitiously named defendant's true name will relate back to the date of filing of the original complaint. Viviano v. CBS, Inc., 101 N.J. 538, 548, 503 A.2d 296 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-23, 299 A.2d 394 (1973). To be entitled to the benefit of this rule, a plaintiff must proceed with due diligence in ascertaining the fictitiously identified defendant's true name and amending the complaint to correctly identify that defendant. Farrell, supra, 62 N.J. at 120, 299 A.2d 394; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J.Super. 203, 208, 740 A.2d 1122 (App. Div.1999). In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint. Farrell, supra, 62 N.J. at 122-23, 299 A.2d 394.
*849 The trial court denied plaintiff's motion to substitute FICEP for a fictitiously named defendant solely on the ground that plaintiff failed to proceed with due diligence in moving to amend his complaint after learning FICEP's identity. However, FICEP argues, as an alternative ground for affirmance, that plaintiff failed to exercise due diligence in identifying FICEP as the manufacturer before filing his complaint. Consequently, we first consider whether plaintiff exercised due diligence in identifying FICEP as the manufacturer of the punch press before filing the complaint and second whether plaintiff acted with due diligence in substituting FICEP as a direct defendant once he became aware that FICEP, not Heller, was the manufacturer.
Plaintiff had a reasonable basis for believing that Heller was the manufacturer of the punch press. On the top of the operator's side of the machine is a panel which states in large capital letters: HELLER. In the middle on the same side of the punch press machine is a metal plate which sets forth the machine's serial number, model, size and specifications. At the top of this plate in large capital letters is the name "FICEP," followed in small letters by the initials "S.p.A." At the bottom of this plate, also in large capital letters, is the name HELLER, followed by its full corporate name, address and telephone number. The back of the machine also contains a metal plate with Heller's full corporate name, address and telephone number. On the top of this side of the machine, beside a logo, is the word "FICEP" in capital letters. However, there is no indication what this word signifies. Consequently, even if plaintiff had looked at the back of the machine, he could have reasonably thought FICEP was a Heller brand or product model name. Moreover, even if plaintiff noticed the initials "S.p.A." after FICEP in the one place those initials appear, it would be unreasonable to expect a layman or even a lawyer to know that this is the Italian equivalent of "Inc." We also note that the principal of plaintiff's employer certified that he believed, based on the labeling placed on the machine and the prominent mention of Heller in the operating manual, that Heller was the manufacturer. Therefore, we reject FICEP's argument that plaintiff should have ascertained before filing his complaint that FICEP, not Heller, was the manufacturer of the punch press.
We consider next whether plaintiff acted with due diligence in moving to substitute FICEP for a fictitiously identified defendant. When Heller moved for leave to file a third-party complaint, its supporting certification simply identified FICEP as a party "potentially liable for all or part of plaintiff's claim."[2] Thus, this motion did not inform plaintiff that FICEP had manufactured the punch press. Moreover, FICEP's answer, filed on March 23, 2000, did not identify FICEP as the manufacturer. However, plaintiff's counsel must have become aware through informal discussions with other counsel that FICEP was the manufacturer because he filed a certification on July 25, 2000, which stated that "[t]he defendant manufacturer *850 is an Italian company and has only been in this case for approximately three months."
After learning that FICEP was the manufacturer of the punch press, plaintiff did not move to name FICEP as a direct defendant until more than nine months later, on May 2, 2001. The question, therefore, is whether this nine-month delay manifested a lack of due diligence which justified the denial of plaintiff's motion to join FICEP as a direct defendant.
The purpose of the requirement that a plaintiff exercise due diligence in ascertaining the true name of a fictitiously named defendant and promptly serve an amended complaint with the defendant's correct name is to prevent undue prejudice as a result of delay in that defendant being made aware of the action. See Johnston, supra, 326 N.J.Super. at 208, 740 A.2d 1122. However, even though "a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run[,]" Mears, supra, 300 N.J.Super. at 631, 693 A.2d 558, absent evidence that "the lapse of time has resulted in a loss of evidence[,] impairment of ability to defend" or "advantage" to plaintiffs, "[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]" Farrell, supra, 62 N.J. at 122, 299 A.2d 394.
In arguing that plaintiff's delay in moving to name it as a direct defendant constituted a lack of due diligence, FICEP relies upon cases in which service of an amended complaint identifying the true name of the fictitiously named defendant was a manufacturer's first notice that it was being sued. See, e.g., Johnston, supra, 326 N.J.Super. at 206-08, 740 A.2d 1122; Mears, supra, 300 N.J.Super. at 632-33, 693 A.2d 558. In such a case, any delay in identifying and serving an amended complaint upon a fictitiously named defendant directly implicates the policy of repose a statute of limitations is designed to serve. See Johnston, supra, 326 N.J.Super. at 208, 740 A.2d 1122; Mears, supra, 300 N.J.Super. at 630, 693 A.2d 558. However, once FICEP was served with Heller's third-party complaint, it had notice of plaintiff's injury and of its potential liability. To protect its interests, FICEP then retained counsel and actively participated in the litigation, including taking plaintiff's deposition and submitting an expert report. FICEP has not suggested any additional discovery or other pretrial preparation it could have undertaken if it had been named as a direct defendant earlier. FICEP also should have reasonably anticipated it would be named as a direct defendant sooner or later. In short, FICEP has not shown that it suffered any prejudice as a result of plaintiff's delay in moving to name it as a direct defendant. See Lawlor, supra, 56 N.J. at 343, 266 A.2d 569. Therefore, the trial court erred in denying the motion.[3]
II
In 1995, the Legislature enacted N.J.S.A. 2A:58C-8 to -9 (L. 1995, c. 141), which allows a seller of an alleged defective product to be relieved of liability under certain circumstances by filing an affidavit correctly identifying the manufacturer of the product.[4] This legislation provides in pertinent part:
*851 a. In any product liability action against a product seller, the product seller may file an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury, death or damage.
b. Upon filing the affidavit pursuant to subsection a. of this section, the product seller shall be relieved of all strict liability claims, subject to the provisions set forth in subsection d. of this section. Due diligence shall be exercised in providing the plaintiff with the correct identity of the manufacturer or manufacturers.
c. The product seller shall be subject to strict liability if:
(2) The manufacturer has no known agents, facility, or other presence within the United States; or
(3) The manufacturer has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate.
d. A product seller shall be liable if:
(1) The product seller has exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage....
[N.J.S.A. 2A:58C-9.]
There is no reported decision by a New Jersey court interpreting N.J.S.A. 2A:58C-9. Moreover, although a number of other states have enacted statutes that provide a similar defense to a seller that was not responsible for an alleged product defect, see 1 American Law of Products Liability 3d § 5.15 at 30 (1994), we are not aware of any state with a statute containing language comparable to N.J.S.A. 2A:58C-9.[5] Therefore, any decisions interpreting the statutes in other states would not be directly relevant to the interpretation of N.J.S.A. 2A:58C-9.
There is no need to undertake a comprehensive review of the various subsections of N.J.S.A. 2A:58C-9 in order to decide this appeal. However, it is appropriate to outline the provisions relevant to Heller's argument that it relieved itself of potential liability for plaintiff's claim simply by identifying FICEP as the punch press manufacturer.
Although the purpose of N.J.S.A. 2A:58C-9, in the words of the sponsor, was "to reduce litigation costs borne by innocent retailers in product liability actions[,]" Sponsor's Statement to S. 1495 of 1995, enacted as L. 1995, c. 141, the statute relieves a seller of liability only if it had no significant responsibility for the alleged product defect and the manufacturer is amenable to service of process and is likely to be able to satisfy any judgment. Thus, a product seller may be subject to liability *852 if it "exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage." N.J.S.A. 2A:58C-9(d)(1).[6] A product seller also remains subject to liability if "[t]he manufacturer has no known agents, facility, or other presence within the United States," or "[t]he manufacturer has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate." N.J.S.A. 2A:58C-9(c)(2),(3). Consequently, before a retail seller will be relieved of liability under N.J.S.A. 2A:58C-9, it must be shown to be truly innocent of responsibility for the alleged defective product and the injured party must retain a viable claim against the manufacturer.[7]
To assure that the injured party will retain a viable claim against the manufacturer after the seller is dismissed from the action, N.J.S.A. 2A:58C-9(b) provides:
Due diligence shall be exercised [by the seller] in providing the plaintiff with the correct identity of the manufacturer or manufacturers.
A seller's compliance with this due diligence requirement reduces the possibility that the plaintiff will be confronted, as in this case, with an assertion that he failed to exercise due diligence in amending his complaint to identify the true name of a fictitiously named manufacturer-defendant. In addition, a seller's early revelation of the manufacturer's identity enables a plaintiff to conduct discovery of the manufacturer before the passage of time results in a loss of documents or other information required to prove a claim.
A seller's compliance with the due diligence requirement of N.J.S.A. 2A:58C-9(b) also promotes efficient judicial management. A product seller's motion for dismissal under N.J.S.A. 2A:58C-9 may require the plaintiff to conduct additional discovery that would not be required to show the existence of a defective product. Thus, a plaintiff would not have to obtain information relating to whether the manufacturer has "known agents, facilit[ies] or other presence within the United States," N.J.S.A. 2A:58C-9(c)(2), or whether it has "attachable assets or has been adjudicated bankrupt [,]" N.J.S.A. 2A:58C-9(c)(3), in order to prove a products liability claim, but discovery relating to these subjects may be necessary if a product seller seeks dismissal under N.J.S.A. 2A:58C-9(b) based on its certification of the manufacturer's identity. Consequently, unless the product seller identifies the manufacturer and moves for dismissal during the prescribed discovery period, the plaintiff may be forced to seek an extension of time to conduct discovery that would be relevant only to the product seller's defense under N.J.S.A. 2A:58C-9.
In this case, Heller did not send an affidavit to plaintiff certifying that *853 FICEP was the manufacturer of the punch press and move for dismissal until May 10, 2001, on the eve of trial. However, as previously discussed, plaintiff was aware no later than July 2000 that FICEP was the manufacturer, and plaintiff could have joined FICEP as a direct defendant any time thereafter. Furthermore, we have concluded in section I of this opinion that plaintiff is entitled to maintain its product liability claim against FICEP. Under these circumstances, it would be unjust to foreclose Heller from obtaining dismissal under N.J.S.A. 2A:58C-9(b) on the ground that it failed to comply with the due diligence requirement of N.J.S.A. 2A:58C-9, especially in view of the fact that this statute has not previously been subject to judicial interpretation. Nevertheless, we caution product sellers that in future cases a motion for dismissal under N.J.S.A. 2A:58C-9 may be denied based on a failure to comply with the due diligence requirement.
In support of its motion for dismissal, Heller submitted a certification of Robert E. Heller, who identified himself as "an employee of E.G. Heller's Son, Inc.," which stated in pertinent part:
3. E.G. Heller's Son, Inc. does not manufacture Ironworkers and did not manufacturer the machine at issue.
4. Based upon the information provided to me, I have identified that the subject Ironworker as having been manufactured by FICEP, S.p.A.
6. E.G. Heller's Son, Inc. sold the Ironworker in question to Plaintiff's employer Norsal Distribution Associated.
8. To the best of my knowledge and belief, FICEP, S.p.A. is solvent and has not been adjudicated bankrupt.
9. To the best of my knowledge and belief, E.G. Heller's Son, Inc. did not exercise significant control over the design, manufacture, packaging or labeling of the Ironworker at issue.
Heller argues that because plaintiff failed to submit a statement of material facts disputing its "Statement of Undisputed Material Facts," which repeated the factual recitations in the certification quoted above, Heller's factual assertions must be "deemed admitted."
Under Rule 4:46-2(a), as amended in 1996, a party moving for summary judgment is required to submit a "statement of material facts," which must "set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." Rule 4:46-2(b) requires a party opposing a motion for summary judgment to "file a responding statement either admitting or disputing each of the facts in the movant's statement." Rule 4:46-2(b) provides that "all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact." These requirements for the filing of statements of material facts by parties to a motion for summary judgment are designed to "focus ... attention on the areas of actual dispute" and "facilitate the court's review" of the motion. Pressler, Current N.J. Court Rules, comment on R. 4:46-2 at 1657 (2003).
Heller claims that because plaintiff did not file a responding statement disputing the factual assertions in Heller's statement, those assertions must be "deemed admitted." However, the only factual assertions in a statement of material *854 facts that are deemed admitted, if not disputed in the statement submitted by the party opposing summary judgment, are those which are "sufficiently supported." R. 4:46-2(b). If a party relies upon an affidavit to establish a fact required to demonstrate entitlement to summary judgment, the affidavit must be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify." R. 1:6-6; see Jeter v. Stevenson, 284 N.J.Super. 229, 233, 664 A.2d 952 (App. Div.1995); Sellers v. Schonfeld, 270 N.J.Super. 424, 427, 637 A.2d 529 (App. Div.1993). Therefore, if an affidavit supporting a factual assertion in a statement of material facts does not comply with Rule 1:6-6, the assertion is not "sufficiently supported" and thus will not be "deemed admitted" even though it is not contested by a responding statement.
Robert Heller's certification did not comply with Rule 1:6-6 because it did not indicate he had any personal knowledge of the facts he asserted. His assertion that FICEP had manufactured the punch press was "based upon the information provided to me." His assertions that FICEP was solvent and had not been adjudicated bankrupt and that Heller did not exercise significant control over the design, manufacture, packaging or labeling of the punch press were both introduced by the qualification: "To the best of my knowledge and belief." The mandate of Rule 1:6-6 that an affidavit supporting a motion must be based on "personal knowledge" is not satisfied by a statement "based merely on `information and belief.'" Pressler, supra, comment 2 on R. 1:6-6 (2003); see Stowell v. N.J. State Ass'n of Chiefs of Police, 325 N.J.Super. 512, 520-21 n. 2, 739 A.2d 1011 (App.Div.1999). Thus, Heller's statement of material facts in support of its summary judgment motion was not "sufficiently supported" by competent evidence. Moreover, even if Robert Heller purported to have personal knowledge of FICEP's financial condition and Heller's role in the design, manufacture, packaging and labeling of the punch press, plaintiff would be entitled to conduct discovery concerning those allegations because they are based on information solely within the knowledge of FICEP and Heller. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193-94, 536 A.2d 237 (1988); Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206, 188 A.2d 24 (1963). Therefore, the summary judgment in Heller's favor must be reversed, subject to renewal upon completion of the discovery relevant to the availability of the defense provided by N.J.S.A. 2A:58C-9.
Accordingly, we reverse the orders denying plaintiff's motion for leave to amend its complaint to add FICEP as a direct defendant and granting Heller's motion for summary judgment.
NOTES
[1] The complaint also asserted a per quod claim on behalf of plaintiff's wife Beth.
[2] We note that plaintiff could have amended its complaint to name FICEP as a direct defendant without leave of court if it had acted within forty-five days after service of the order granting Heller leave to file a third-party complaint against FICEP. R. 4:8-1(b). However, such an amended complaint would not have related back to the date of filing the complaint, thus satisfying the two-year limitations period which expired one day later, unless it substituted FICEP for a fictitiously identified defendant pursuant to Rule 4:26-4. See Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 339-43, 266 A.2d 569 (1970).
[3] Because we conclude that the trial court should have allowed plaintiff to amend its complaint to substitute FICEP for a fictitiously named defendant, there is no need to consider plaintiff's alternative argument that under 2A:58C-9(e), plaintiff's complaint against Heller tolled the running of the limitations period on its claim against FICEP.
[4] There is some question whether this legislation was intended to be a supplement to the Products Liability Act or an independent enactment. See Hinojo v. N.J. Mfrs. Ins. Co., 353 N.J.Super. 261, 269 n. 1, 802 A.2d 551 (App.Div.2002); William A. Dreier, et al., New Jersey Products Liability & Toxic Torts Law, § 12.1, at 316 (2003 ed.). This appeal does not require resolution of the issue.
[5] However, the Model Uniform Products Liability Act, drafted by the United States Department of Commerce, includes provisions similar to N.J.S.A. 2A:58C-9(c) and 9(d)(1), which are designed to prevent a retail seller from being dismissed from the action if the manufacturer is not amenable to service of process or may be insolvent. See 44 Fed.Reg. 62,714 to 62,750 (1979). The statutes enacted in a number of states also include provisions designed to serve this purpose. See e.g., Colo.Rev.Stat. Ann. § 13-21-402 (West 1997); Del.Code Ann. tit. 18 § 7001 (2002); 735 III. Comp. Stat. Ann. 5/2-621 (1993 & Supp. 1996); Minn.Stat. Ann. § 544.41 (West 2000); Mo. Ann. Stat. § 537.762 (West 2000); Wash. Rev.Code Ann. § 7.72.040 (West 1992).
[6] A product seller also may be subject to liability if it "knew or should have known of the defect in the product which caused the injury, death or damage or the plaintiff can affirmatively demonstrate that the product seller was in possession of facts from which a reasonable person would conclude that the product seller had or should have had knowledge of the alleged defect in the product which caused the injury, death or damage; or... created the defect in the product which caused the injury, death or damage." N.J.S.A. 2A:58C-9(d)(2),(3). Plaintiff does not rely upon either of these provisions.
[7] One commentary suggests that dismissal of a product liability claim against a retail seller based on its identification of the manufacturer should be "without prejudice" so that the plaintiff is not left without a remedy in the event the manufacturer subsequently becomes insolvent. See Dreier, supra, § 12:1-1 at 319; see also Restatement (Third) of Torts: Products Liability § 1 comment e (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2391941/ | 823 A.2d 274 (2003)
Michael SMALLS, Petitioner,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs January 24, 2003.
Decided May 12, 2003.
David Crowley, Bellefonte, for petitioner.
Tara Patterson, Harrisburg, for respondent.
BEFORE: COLINS, President Judge, and FRIEDMAN, Judge, and FLAHERTY, Senior Judge.
*275 OPINION BY Senior Judge FLAHERTY.
Michael Smalls (Smalls) appeals the determination of the Pennsylvania Board of Probation and Parole (Board) which denied his administrative appeal of a recommitment order.
On August 30, 1999, Smalls was paroled from a six to eighteen year sentence for rape, burglary, robbery, involuntary deviate sexual intercourse and conspiracy. In addition to the general conditions of his parole, the Board listed a special condition not to possess alcohol.
On April 17, 2002, at 1:30 a.m., Smalls' parole agent, Tracy Turner (Turner), made an unannounced visit to his residence for the purpose of conducting a "curfew and change of address check." Turner took a urine specimen from Smalls, which was clean. Turner then, while throwing away the urinalysis kit, noticed a green bottle in the garbage can in Smalls kitchen. Turner inventoried the contents of that garbage can and found two unopened and chilled bottles of champagne and an unopened chilled bottle of beer and an empty bottle of champagne.
Turner acknowledged that there was a woman, Donna Day (Day), sleeping in Smalls bed at the time she conducted her check of the residence. Day testified that she brought the four bottles of alcohol into Smalls apartment a little after 1:00 am. She also testified that Smalls was asleep when she arrived, so she placed the bottles in his refrigerator. She further stated that upon Smalls discovering the alcohol in the refrigerator, he told her it was a violation of his parole and asked her to leave. Day threw the bottles in the garbage can and went back to bed, as it was a two hour bus ride between her apartment and Smalls'.
On April 14, 2002, the Board issued a warrant to commit and detain Smalls. On May 2, 2002, a preliminary hearing for the technical violation of possession of alcohol was held at the State Correctional Institution (SCI) at Graterford. A panel violation hearing was held at SCI at Graterford on June 4, 2002. On June 20, 2002, the Board recommitted Smalls as a technical parole violator to serve twelve months backtime. On July 17, 2002, Smalls petitioned for administrative relief. On August 1, 2002, his petition was denied and Smalls subsequently petitioned our Court for review.[1]
Smalls contends that the Board erred in concluding that there was substantial evidence to support Smalls' violation of the parole condition charged.
Substantial evidence is defined as evidence that a reasonable mind would find sufficient to support a conclusion. McCauley v. Pennsylvania Board of Probation and Parole, 98 Pa.Cmwlth. 28, 510 A.2d 877 (1986). The Board must prove a technical parole violation by a preponderance of the evidence. Id. 510 A.2d at 879. A preponderance of the evidence is "such proof as leads the fact-finder ... to find that the existence of a contested fact is more probable than its nonexistence." Sigafoos v. Pennsylvania Board of Probation and Parole, 94 Pa.Cmwlth. 454, 503 A.2d 1076 (1986).
The mere presence of alcohol in Smalls apartment does not establish that *276 he possessed the substance. "Constructive possession occurs when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control over the object, either directly or through others." (emphasis added). Nickens v. Pennsylvania Board of Probation and Parole, 93 Pa.Cmwlth. 313, 502 A.2d 277, 281 (1985), citing United States v. Daniels, 527 F.2d 1147 (6th Cir.1975).
In Nickens, our Court found constructive possession of a gun stored in parolee's bedroom closet. That the gun along with the evidence of parolee's tattoo and sign in his shop window showed an "obvious manifestation of an affinity for firearms." Nickens, 502 A.2d at 280. The combination of those facts constituted constructive possession as it showed an intent to exercise dominion and control over that gun. This case is similar to Hawkins v. Pennsylvania Board of Probation and Parole, 88 Pa.Cmwlth. 547, 490 A.2d 942 (1985). In Hawkins, a parolee was the sole occupant of a stolen car involved in a police chase which terminated in his arrest and the discovery of a handgun on the floor of the driver compartment. Our Court determined that parolee had constructive possession of the weapon as "there was no opportunity for anyone else to have tampered with the vehicle from the time Hawkins abandoned it until the time the weapon was discovered...." 490 A.2d at 946.[2]
In the present controversy, the Board found Turner credible and relied on her testimony in finding that Smalls was in constructive possession of the alcohol. However, there is nothing in Turner's testimony that shows Smalls had the intention of exercising dominion or control over the alcohol. In fact, Turner testified that she did not bother to investigate who brought the alcohol into the house or why it was in the garbage can, as she felt that "regardless of who brought the alcohol into the house he was still responsible because he's the one on parole and it's considered constructive possession because he did have access to the alcohol and it was his apartment." Notes of Testimony, June 4, 2002, at 23.
In this case, unlike Hawkins, there was an opportunity for someone else to have placed the alcohol into Smalls' trash can and to have consumed the empty bottle. We find this highly likely, being that Smalls tested negative for alcohol and there was another person, Day, who not only had access to the apartment but was there sleeping at that time Turner conducted her visit. The record fails to support the Board's finding that Smalls was in constructive possession of the alcohol. Thus, there was not substantial evidence to support the Board's finding of a parole violation.
Accordingly, we reverse.
ORDER
AND NOW, this 12th day of May, 2003 the order of the Pennsylvania Board of Probation and Parole in the above captioned matter is reversed.
NOTES
[1] Our review of a Board recommitment decision is limited to a determination of whether necessary findings are supported by substantial evidence, whether the order is in accordance with law, and whether any constitutional rights of the parolee have been violated. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa.Cmwlth. 198, 470 A.2d 1135 (1984).
[2] Smalls cites Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989), as analogous to his situation. This is in error. In Perdue, our Superior Court found that the act of placing property into a garbage can located underneath the porch of Perdue's residence constituted abandonment of that property. Perdue concerns abandonment of property, not possession of property, as is the issue in the present controversy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2394822/ | 352 Pa. Super. 163 (1986)
507 A.2d 822
Augustus J. PAPANDREA, Sr. and Geraldine I. Papandrea, His Wife, Appellants
v.
Barry J. HARTMAN.
Supreme Court of Pennsylvania.
Argued September 17, 1985.
Filed February 26, 1986.
Reargument Denied April 30, 1986.
*164 John J. Krafsig, Harrisburg, for appellants.
Richard B. Swartz, Harrisburg, for appellee.
Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
WICKERSHAM, Judge:
This is an appeal from the judgment of the Court of Common Pleas of Dauphin County, entered on a jury's verdict in favor of defendant-appellee, Barry J. Hartman, and against plaintiffs, Augustus J. Papandrea, Sr. and Geraldine I. Papandrea, appellants, in a trespass action growing out of an automobile collision. We reverse.
Viewing the evidence in a light most favorable to the nonmoving party, defendant-appellee, the following appears of record: At approximately 3:30 P.M. on the 28th of May, 1982, appellee was driving his automobile on North Progress Avenue in Susquehanna Township, Dauphin County. It was not dark, and Hartman was moving at a reasonable rate of speed since the roadway was wet.
Hartman was approaching an intersection and could see, some 600 feet ahead, that another vehicle had stopped and its driver (appellant herein) was waiting for the traffic signal to change in his favor. The other vehicle was stationary in the left turning lane. Hartman slowed to enter the turning lane and began to apply his brakes. Hartman was traveling at less than 5 miles per hour, when his brakes allegedly failed, causing his vehicle to strike that of appellants. *165 Appellant, Augustus Papandrea, was rendered totally disabled from the collision.
The case proceeded to trial and a jury found for Hartman. Post-verdict motions were denied and judgment was entered for appellee and against plaintiffs-appellants. This appeal timely followed.
On appeal, appellants present five issues for our review.[1] We address the first of appellants' issues, which centers on the following relevant portion of the instruction to the jury by the court below:
*166 [THE COURT]: Now, I want to point out to you some of the law that is specifically involved in a situation of this type. Now, remember that I did tell you that recovery is based on negligence.
The Defendant has pointed out in his request to the Court that this Defendant cannot be negligent because he asserts that the Defendant had brake failure and because of the brake failure the Defendant was not involved in any act of negligence. There is some law to this effect that when one finds himself in a position of danger that is not the result of his negligence, he is not responsible if he makes a mistake in judgment in getting out. An honest exercise in judgment is all that is required of him even if he could have done better had he had time to deliberate.
There is also some law to the effect that where there is mechanical failure such as a brake failure, and the party neither knew of it nor had reason to know that his mechanical failure would take effect and if in this particular case if you find that the action of the Defendant from the time of the brake failure until the moment of impact were not negligent, then of course the Plaintiff excuse me, the Defendant, would be entitled to the invocation of this doctrine which we refer to as sudden emergencies.
On the other hand, there is a lot of law which is favorable to the Plaintiff and this has been referred to by the Plaintiff as the assured clear distance ahead rule. That rule reads as follows:
Any person having a vehicle on the highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface and width of the highway and of any other restrictions or conditions when and where existing; and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person, nor at a speed greater *167 than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
Now, of course, you have got a lot of things to consider in that connection because we have had the Defendant who claims that he was going at something like five miles an hour; on the other hand, you have the Plaintiff pointing out that his car was damaged in the rear to the extent of two hundred and some dollars. You have a dispute as to that by the Defendant because the Defendant asserts that he observed the car and there was no damage that he was able to observe. This all goes into the question of credibility.
In connection with this conflict between the sudden emergency rule and the assured clear distance rule, there is some other law which is to the effect that the sudden emergency doctrine, where it is used in connection with the defense, you must consider the assured clear distance rule and in a case of this nature where the Defendant alleges that in the operation of the vehicle he developed an unforeseen defect in mechanisms it has been said that these alleged defects are of the type of unforeseen occurrences contemplated by the rule and that a person cannot invoke the sudden emergency doctrine if he is not driving his car at an assured clear distance and takes that chance of having an accident. Of course, again, I merely point out those rules to you.
Perhaps, I can read this. This is what one of the cases has said: `A defendant cannot invoke the sudden emergency doctrine as a defense to the assured clear distance ahead rule, where he alleges in the operation of his vehicle the developing of unforeseen defective mechanisms, as these alleged defects are not those types of unforeseen occurrences contemplated by the sudden emergency doctrine.' So much for that.
There were no witnesses to the accident and you will have to determine whether or not, under these rules, the rules which I have given you in connection with negligence, the sudden emergency rule and the assured clear *168 distance rule, whether or not this Defendant was negligent.
Now, if you determine from the evidence that there was no negligence on the part of the Defendant which was the proximate cause of the injuries to the Defendant to the Plaintiff the Plaintiff cannot recover. That is the end of the case and, of course, that was argued to you by the defense attorney.
On the other hand, if you conclude from the evidence that the Defendant was negligent and that his negligence was the proximate cause of these injuries to this Plaintiff, then your verdict would be for the Plaintiff and you would then come to consider the question of damages.
Now, we are not suggesting to you by what we have just said that the Defendant was negligent. That is not our function. You are the ones that have to make that determination. Once you make that determination then you come to this question of damages.
R.R. at 98a-101a.
Appellants' allegation of error is that the trial judge improperly charged the jury on both the "Sudden Emergency Doctrine"[2] and the "Assured Clear Distance Ahead Rule."[3]
Initially, it is well settled that:
*169 where the accuracy of a charge is at issue, an appellate court must look to the charge in its entirety against the background of the evidence to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984); Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980). We must review the charge in this light.
Elder v. Orluck, 334 Pa.Super. 329, 342, 483 A.2d 474, 481 (1984) (allocatur granted). In reviewing the charge we must first determine whether a sudden emergency was proven by appellee, and, then, if the facts giving rise to the emergency leave no room for doubt, the issue becomes a matter of law for the judge. Polumbo v. DeStefano, 329 Pa.Super. 360, 366, 478 A.2d 828, 831 (1984).
This analytical framework must be built for "the presence of a sudden emergency negates the applicability of the `assured clear distance' rule[.]" Id., 329 Pa.Superior Ct. at 365, 478 A.2d at 831; Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 454 A.2d 645 (1983) (where a sudden emergency arises the "assured clear distance ahead" rule is inapplicable). The distinction is relevant as:
[t]he case law in this Commonwealth indicates that the sudden emergency doctrine and the assured clear distance rule are mutually exclusive points of law and that in a given factual situation it is error to charge on both doctrines. Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1979); Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978). This is based on the rationale that the assured clear distance rule applies to essentially static or static objects, including vehicles moving in the same direction, while the sudden emergency doctrine applies only to moving instrumentalities thrust into a driver's path of travel. Brown v. Schriver, supra. However, *170 there is case law for the proposition that it is proper for the court to charge on both points of law if the facts do not conclusively establish the existence of a sudden emergency situation. Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981).
Elder v. Orluck, supra, 334 Pa.Superior Ct. at 343-44, 483 A.2d at 481-82.
Therefore, at the apex of our decision is whether a "sudden emergency" actually exists under the facts of this case. The well-reasoned Chiodo opinion instructs us that "[t]he `sudden emergency' doctrine was not designed for the purpose of aiding the operator of a vehicle developing unforeseen defective mechanisms. These defects were not those types of unforeseen occurrences contemplated by the `sudden emergency' doctrine." Id., 308 Pa.Superior Ct. at 502, 454 A.2d at 647 (emphasis added). In Chiodo this court found that the brake failure of a tractor-trailer did not give rise to a "sudden emergency" defense.
We note additional, if not conflicting, precedent in this state's courts. Our supreme court in Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971), and our court en banc in Hartman v. Gieraltowski, 198 Pa.Super. 316, 181 A.2d 688 (1962), appear to recognize vehicular brake failure as justification for the application of the "sudden emergency" doctrine. We must, therefore, accept appellee's defense of brake failure, if proven, as a sudden emergency.
Accepting, arguendo, that appellee was entitled to have the jury charged on the "sudden emergency" doctrine, the trial court's additional charge on the "assured clear distance" rule was not improper. "[W]here the evidence leaves some doubt as to whether an emergency situation existed, there is a question of fact for the jury, and the jury should be instructed on both the assured clear distance ahead and sudden emergency doctrines. The dual instructions assures that the jury has the applicable law for whatever factual scenario they find occurred." Ernst v. Ace Motor Sales, Inc., 550 F. Supp. 1220, 1226 (E.D.Pa. 1982), affirmed without opinion, 720 F.2d 661 (3d Cir. 1983) *171 (emphasis in original); Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981). Appellants, therefore, cannot be granted relief based on this allegation of error.
Appellants' second contention of error is that the trial court erroneously permitted the jury to consider the defense of brake failure where no competent proof of such an alleged failure was produced at trial. With this we must agree.
"The `sudden emergency' doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately." Chiodo, supra, 308 Pa.Superior Ct. at 500, 454 A.2d at 646. "A party who pleads the existence of an emergency bears the burden of proof on this allegation." Stacy v. Thrower Trucking Inc., 253 Pa.Super. 150, 157, 384 A.2d 1274, 1277 (1978). Instantly, appellee alleges brake failure as the proximate cause of the rear-end collision which resulted in the ultimate injuries to appellant husband.
Appellee, at trial, offered no evidence other than his own testimony to satisfy his burden of showing that brake failure had actually occurred, a necessary requisite in the application of the sudden emergency doctrine to this case. Accordingly, appellee should not have received a sudden emergency charge at all.
As our supreme court noted in Pascale v. Simmons, 406 Pa. 476, 178 A.2d 549 (1962):
It is an easy thing for any driver involved in an accident to say that his brakes failed, but one can derive from such a remark many interpretations which do not exonerate the driver. The brakes, for instance, may have failed because the driver did not apply them properly, or at all. The brakes may have failed because they were defective and the driver knew they were defective. They may have failed because the driver was traveling at such speed that they could not catch hold in time to stop the *172 car within the short distance still left him before reaching the object in his path.
Then, of course, it is not impossible that [the driver] was telling an untruth when he said his brakes failed. His utterance may have been a glib attempt to extricate himself from the difficult situation in which he found himself.
Id., 406 Pa. at 480, 178 A.2d at 551. In addition, we agree with the panel in Flavin v. Aldrich, 213 Pa.Super. 420, 425, 250 A.2d 185, 187 (1968) (en banc), that "testimony as to an automobile's braking system `certainly dealt with a subject that was not common knowledge.'" It is noted that under cross-examination appellee acknowledged that he was not a mechanic. R.R. at 75a.
The jury was informed, through appellee's testimony, that immediately prior to and following the accident, the brakes of his automobile performed without flaw. Appellee thereafter drove some 150 miles back to his home in New Jersey. He took the vehicle to the Chevrolet dealer from whom he purchased the car. This dealer found no evidence of brake failure. Another dealer inspected the vehicle and found there was no defect in the brake system and that the system was operating as designed. In addition, a third individual, a Chevrolet District Manager, inspected the braking system and informed appellee that no defects were present in the system.
When appellee said his brakes failed, it was his burden to show that they did fail and that they failed through no fault of his own. Pascale v. Simmons, supra. For example, in Floravit v. Kronenwetter, 255 Pa.Super. 581, 389 A.2d 130 (1978) (en banc) the defendant was traveling at a distance of one car length behind the plaintiff's vehicle, when at a speed of less than 5 m.p.h., the defendant lost braking power, and his truck collided with plaintiff's stationary automobile, causing injuries to plaintiff. At the trial, the defendant called a mechanic who testified that an examination of the truck revealed a ruptured brake hose. The witness further testified that such a *173 rupture would cause sudden failure of the braking system. The defendant also called the responding police officer who testified that he had engaged the brake pedal at the accident scene, finding no pressure on the pedal, which indicated brake failure. The court properly concluded, based on the above testimony, that the defendant was not negligent in failing to anticipate brake failure.
Similarly, in Flavin v. Aldrich, supra, the defendant therein alleged brake failure as the cause of a rear-end collision. The defendant produced the opinion evidence of a witness who had tested the brakes and who unequivocally stated that the brakes were defective because of a loss of brake fluid prior to the accident. The defendant also testified on her own behalf that her brakes failed, resulting in the accident. This was sufficient evidence on appeal to support a finding of defective brakes.
We are called upon in this case to determine whether a person who alleges temporary brake failure in a rear-end collision with another vehicle, may be exculpated by the defense of the "sudden emergency" doctrine based on only such person's sole, non-expert, testimony. Although appellee may certainly testify as to his recollection of the facts surrounding the accident, we do not find that same personal opinion to satisfy the requisite burden in this case. We are not convinced by examination of the entire record that appellee has produced any competent evidence to substantiate actual brake failure other than his own BALD assertion thereof. A charge on sudden emergency, under the totality of circumstances, was error, and a new trial is thereby mandated.
"The jury may not be permitted to reach its verdict on the basis of speculation or conjecture; there must be evidence upon which its conclusion may be logically based[.]" Cuthbert v. City of Philadelphia, 417 Pa. 610, 615, 209 A.2d 261, 264 (1965). This does not mean that the jury may not draw inferences based upon all the evidence, for that is, of course, the very heart of the jury's function. It means only that evidence presented must be such that by reasoning *174 from it, without resort to prejudice or guess, a jury can reach an appropriate conclusion.
We believe that justice requires us to grant appellants a new trial.[4] We, therefore, reverse the judgment of the court below and remand for new trial. Jurisdiction is relinquished.
NOTES
[1] Appellant raises the following issues:
1. Did the lower court judge by improperly charging the jury on both the Sudden Emergency Rule and the Assured Clear Distance Emergency Rule, which are mutually exclusive doctrines, to totally confuse the jury as to demonstrably cause a miscarriage of justice; and to further cause a gross and palpable error in the verdict of the jury, by failing to correct the charge upon timely request and objection, but then to compound said error by attempting to overrule a Superior Court decision which holding he instructed the jury and which clearly demonstrated his error in charging on the Sudden Emergency Doctrine in the first place?
2. Did the lower court judge erroneously permit the jury to consider the defense of brake failure, and demonstrably causing the shocking verdict of no recovery of a totally disabled Plaintiff-Appellant, when there was absolutely no competent proof of brake failure from any competent source?
3. Did the failure of the lower court to properly sustain timely objection in the presence of the jury, to erroneous highly prejudicial and harmful remarks of counsel for the Appellee; both in his closing remarks to the jury on facts not in evidence, and which went to very issue of liability, but to further allow said counsel to demean the expert testimony of an expert actuarial witness on facts not in evidence, and against facts in evidence to form the hypothetical question?
4. Did the failure of the court to properly charge on applicable Points for Charge, which errors were properly and timely preserved, including a totally inadequate charge of consortium, nor a proper charge as to the fact there was no requirement of mathematical exactness to establish pain and suffering and the requirements thereof, further cause the shocking verdict of the jury?
5. In view of the uncontradicted evidence that Appellant, Augustus J. Papandrea, Sr., was totally disabled and there was not one scintilla of evidence of any negligence by him, was the verdict of the jury, in view of the totality of major trial errors committed, a miscarriage of justice and shocks judicial conscience to require the grant of a new trial?
Brief for Appellants at 3-4. We note that these issues were properly preserved for our review.
[2] First recognized in 1854, see Railroad Company v. Aspell, 23 Pa. 147 (1854), the "sudden emergency doctrine" is a defense available to a driver of a motor vehicle who suddenly and unexpectedly finds himself confronted with a perilous situation which he did not create, that permits no opportunity to assess the danger and appropriately respond. Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 409 A.2d 37 (1979). "A sudden and clear emergency may be a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or . . . blinding lights." Unangst v. Whitehouse, 235 Pa.Super. 458, 464, 344 A.2d 695, 699 (1975).
[3] The "assured clear distance ahead rule" requires that a driver operate his vehicle in such a fashion that he is always able to stop within the distance he can clearly see. 75 Pa.C.S. § 3361. "[T]he `assured clear distance ahead' rule applied to those situations where the defendant's vehicle was approaching a stationary object, whereas the `sudden emergency' doctrine applied to objects that were unforeseeably thrust into the driver's path." Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 501-02, 454 A.2d 645, 647 (1983). Where a "sudden and clear emergency arises inside the range of the previously assured clear distance, the rule has been held inapplicable." Unangst v. Whitehouse, supra, 235 Pa.Superior Ct. at 464, 344 A.2d at 698 (emphasis in original).
[4] Having granted appellants a new trial, we need not address the other issues. However, based upon an independent review of the record, and with benefit of oral argument, we find appellants' remaining issues to be without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2396556/ | 230 S.W.2d 290 (1950)
BULLINGTON
v.
LEAR et al.
No. 4705.
Court of Civil Appeals of Texas, El Paso.
March 8, 1950.
*291 Murray J. Howze, Monahans, for appellant.
C. Bennett, County Attorney, Crane, for appellees.
PRICE, Chief Justice.
This is a contest by Mrs. Nora Bullington of a local option election held in Justice Precinct No. 2, Crane County, Texas. She sought also an injunction against the Sheriff of Crane County forbidding him from enforcing as the law the result of said election. From a judgment denying the injunction and overruling the contest Mrs. Bullington has perfected this appeal. She will be hereinafter referred to as contestant.
There is no dispute as to the facts of the case. The material facts were stipulated between the parties.
On July 19, 1949 Lans. Ch. D. Simon, a legally qualified voter of Justice Precinct No. 2 of Crane County, Texas, filed an application in the manner and form prescribed by law for a local option election petition to be circulated among the legal voters of said Justice Precinct for the purpose of instituting a local option election to determine whether or not the sale of all alcoholic beverages should be prohibited in said precinct. This petition was issued and signed by 55 of the legally qualified voters in said Justice Precinct. It was in proper form and signed by a sufficient number of voters to make it the duty of the commissioners court to call such election. The petition was filed August 3, 1949 with the County Clerk and on August 8, 1949, the Commissioners of Crane County ordered an election to be held in election precinct No. 2 on the 3rd day of September, 1949, for the purpose of voting on the question of prohibiting the sale of all alcoholic beverages or against such prohibition. Notice was duly and legally posted. The election was duly held in election precinct No. 2, and resulted in 44 votes being cast for such prohibition and 15 votes against. On September 12, 1949, the Commissioners Court canvassed the votes of such election, declared the result, and ordered that the sale of all alcoholic beverages be prohibited in election precinct No. 2 after thirty days from that date.
The appellant (contestant) asserts the election was void on the ground that under Sec. 32 of art. 666, Vernon's Annotated Penal Code, which provides for a local election, only an election as applied to a County, Justice Precinct thereof, or an incorporated town or city could be lawfully called thereunder.
The petition was for an election in and for Justice Precinct No. 2. The order for the election and the declaration of the result was as to election precinct No. 2. Justice Precinct No. 2 and election precinct No. 2 at all relevant times herein had identical boundaries; an election held in election precinct No. 2 was likewise held in Justice Precinct No. 2. The order of the Commissioners Court prohibiting the sale of intoxicating liquors in election precinct No. 2 prohibited it in Justice Precinct No. 2.
Section 32 of art. 666, V.A.P.C. was enacted in pursuance of an amendment of 1935 of art. 16, § 20 of the Constitution, Vernon's Ann.St.Section (b) of said Article is as follows: "(b) The Legislature shall enact a law or laws whereby the qualified voters of any county, justice's precinct or incorporated town or city, may, by a majority vote of those voting, determine from time to time whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized within the prescribed limits; and such laws shall contain provisions for voting on the sale of intoxicating liquors of various types and various alcoholic content.'
Said Section 32 of Article 666 of the Penal Code follows the Constitution as to political subdivisions of the state to which it is applicable. An election precinct is not named as such subdivision. There can be little doubt that under Sec. 32, art. 666 an election petition seeking an election to prohibit *292 or permit the sale of intoxicating liquors in an election precinct would be of no effect, that is as applied to an election precinct as such. An election order in pursuance of such a petition would likewise be of no legal effect.
In this case for the Commissioners Court to have failed to order the election in pursuance of the petition would have been a violation of the Constitution. It did order the election in the exact area as to which it was their duty to so order same. We think describing election precinct No. 2 was describing Justice Precinct No. 2. This is likewise true as to the official declaration of the result by the court. There is no contention that any of the voters were disqualified. To be qualified it was necessary that they be legal voters in Justice Precinct No. 2. In the case of Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, a clear, succinct and comprehensive review of the Constitution and statutory provisions relating to local option is given. The voters of Justice Precinct No. 2 were given an opportunity guaranteed by law passed by virtue of the mandate of the Constitution to legislate upon the question as to whether or not the sale of intoxicating liquors should be prohibited or permitted. In an election fairly held they did pass upon this question and decided against the sale of intoxicating liquors. Unless the procedure was so irregular that the rights and privileges conferred by the Constitution and statutes were not invoked the result of the election should be upheld.
In the case of Pollard v. Snodgrass, County Attorney, Tex.Civ.App., 203 S.W.2d 641, 644, the election was held in an election precinct outside of the justice precinct as to which the election was called. It was held that this was a mere irregularity and did not invalidate the election. In the court's opinion it was said: "Our courts have said a number of times that statutory enactments concerning elections must be strictly enforced to prevent fraud, but liberally construed in order to ascertain and effectuate the will of the voters. Turner v. Teller, Tex.Civ.App., 275 S.W. 115; Hill v. Smithville Independent School District, Tex.Com.App., 251 S.W. 209; Miller v. Tucker, Tex.Civ.App., 119 S.W.2d 92; Varela v. Perales, Tex.Civ.App., 184 S.W.2d 637; Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362."
At the time the Commissioners Court, on to wit, August 8, 1949, made an order making a slight change in the boundaries of election precinct No. 2 and Justice Precinct No. 2, this change did not affect the eligibility of more than one voter; the change still left the boundaries of the justice and election precinct identical. It will be noted that the petition signed by the voters was filed with the County Clerk on August 3, 1949. The filing of this petition with the proper number of qualified electors gave the right to this election in such precinct. It has been held that it is beyond the power of the Commissioners Court to so change the boundary of a Justice Precinct as to repeal a law passed by a local option election in favor of or against prohibition. Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549; Jackson v. State, 135 Tex. Crim. 140, 118 S.W.2d 313.
This election was a clear, valid declaration of the will of the voters as to which under the Constitution and statutes they had a right to authoritatively express their will. By virtue of this election Justice Precinct No. 2 of Crane County as it existed on August 3, 1949, the date the petition was filed with the County Clerk and on August 8, 1949, the date the Commissioners Court ordered the election, became dry.
The judgment of the trial court is in all things correct and same is hereby affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399831/ | 714 A.2d 864 (1998)
350 Md. 633
Dwayne SIPPIO
v.
STATE of Maryland.
No. 70, September Term, 1997.
Court of Appeals of Maryland.
August 5, 1998.
*866 Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender; Margaret L. Lanier, Asst. Public Defender, on brief), Baltimore, for Petitioner.
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
*865 CHASANOW, Judge.
In this appeal, we are called upon to address the following issues:
1. Did the trial court err in permitting a medical examiner to give opinion testimony as to a decedent's manner of death?
2. Does our ruling in Sahin v. State, 337 Md. 304, 653 A.2d 452 (1995), allowing a defendant on trial for a veracity impeaching offense to present evidence of his character for truthfulness after he testifies, apply where the defendant has announced his intention to testify but has not yet done so?
For the reasons set forth below, we shall hold that under the rules of evidence on *867 expert testimony, the trial court did not err in admitting a medical examiner's testimony as to manner of death. We shall further hold that the requirement of Sahin, supra, that a criminal defendant charged with a veracity impeaching offense may present evidence of his or her character for truthfulness only after the defendant elects to testify, is not met by a nonbinding announcement of the defendant's intention to testify. We shall therefore affirm the judgment of the Court of Special Appeals affirming Sippio's conviction.
I.
It is undisputed that, on December 30, 1995, Brenda Branch died as the result of a gunshot fired by Petitioner Dwayne Sippio, Branch's acquaintance of seven years and the father of her six-year-old daughter Demetrius. The shooting occurred in Branch's home in Baltimore City. Although Sippio maintained a separate residence in Baltimore City, Sippio stayed at Branch's home on frequent occasions, including the two weeks prior to the shooting. Demetrius and Gavin, Branch's son from a previous relationship, also resided at Branch's home.
Following Branch's death, Sippio was arrested and charged with murder, use of a handgun in the commission of a felony, and unlawfully wearing, carrying, and transporting a handgun. A jury trial commenced on July 9, 1996 in the Circuit Court for Baltimore City. Because Sippio admitted to having fired the shot that caused Branch's death, the trial centered on whether that shooting was accidental or deliberate.
At trial, Demetrius, who was an eyewitness to Branch's death, testified that, on the day of the shooting, she overheard a conversation between Branch and Sippio in which Sippio requested that Branch give him a set of keys she had in her possession and Branch repeatedly asked Sippio for money. Demetrius further testified that after this discussion, she saw Sippio pull a gun from his coat pocket and heard him say to Branch that it was "time for her to go," to which Branch responded: "[P]lease don't shoot me." Demetrius then saw Sippio shoot Branch. After the shooting, according to Demetrius, Sippio removed a set of keys from Branch's body and brought Demetrius to her grandmother's house.
Gavin testified that he left Branch's residence several hours before the shooting occurred and, thus, did not witness the shooting. Gavin, however, testified that, at times including the few weeks before the shooting, he had heard Sippio call Branch derisive names and, on the night before the shooting, Sippio had responded angrily to Branch's playful request for money. Gavin further testified that Branch "put [Sippio] out all the time . . . [l]ike when he wouldn't give her money to pay the bills and stuff and she would tell him to pack his stuff and leave." Gavin also testified that, prior to the shooting, he found Sippio's unloaded gun in a bedroom drawer and that Sippio kept the bullets separate from the gun.
Another witness for the State, Detective Donald Steinhice, testified that he took a taped statement from Sippio at the Baltimore City Police Department's Homicide Unit on the day of the shooting. That taped statement was played at trial during the detective's testimony. According to Sippio's taped statement, Sippio thought that he had removed all the bullets from the gun before pointing it at Branch and pulling the trigger. Detective Steinhice also testified that, based on his observations of the crime scene, he believed a struggle had occurred.
The last witness for the State's case-in-chief, John Smialek, Chief Medical Examiner for the State of Maryland, testified as an expert in forensic pathology. Dr. Smialek had conducted the autopsy of Branch and had signed the autopsy report which was admitted into evidence as part of the medical examiner's report without objection during the direct examination of Dr. Smialek. As required by law, Dr. Smialek recorded Branch's cause and manner of death in the medical examiner's report. See Maryland Code (1982, 1994 Repl.Vol.), Health-General Article, § 5-311(a)(2)(iii).[1] Based on his examination *868 of Branch, Dr. Smialek concluded that the cause of death was a close range gunshot wound to the head. After further investigation, which included a discussion with Detective Steinhice, Dr. Smialek concluded, and recorded in the medical examiner's report, that Branch's manner of death was homicide, thus ruling out the other possibilitiesaccident, suicide, natural, and undeterminedthat appear in the medical examiner's report. Throughout direct examination and cross-examination of Dr. Smialek, no mention was made of the concepts of "homicide" or "accident." On redirect examination, however, Dr. Smialek was asked about his report and testified that he had marked an "X" next to the term "homicide." On recross, he explained that he had marked "homicide" rather than "accident" because the block marked accident is "reserved for a death that is the result of an action that was unexpected, untoward, that type of an event[, e.g.,] * * * someone who tripped on the stairs, fell down and struck their head and sustained a fatal ... injury." He also noted that his opinion that this was a homicide meant "that someone else fired a weapon to kill Ms. Branch," regardless of the shooter's intent.
The defense called several witnesses to testify to Sippio's character. One of those witnesses, Michael Martin, who had known Sippio for about fifteen years, described Sippio as a quiet person who stayed to himself. When, however, Martin was asked "Has [Sippio] been a truthful person to you?," the State objected, and the court sustained the objection.
As defense counsel had indicated during opening statements, Sippio testified at trial. He was the last witness called by the defense. According to Sippio, on the day of the shooting, Branch repeatedly requested money from him and requested that Sippio pack his belongings and leave her home. One of the items Sippio retrieved was a handgun, which he placed in his pocket. Sippio testified that the gun was normally kept unloaded in Branch's home, but he had loaded the gun that morning while he was gathering his possessions. According to Sippio, at some point after that but before Branch was shot, he unloaded the bullets into his hand and placed them in his coat pocket. He offered no explanation as to how the gun became reloaded before Branch was shot. According to Sippio, he called Branch into the kitchen where they again discussed money. At some point during this discussion, Sippio retrieved the gun from his coat pocket and began "playing with it." On direct examination, Sippio explained his version of what happened next:
"[Defense counsel]: How did you begin playing with it? What did you do?
[Sippio]: No more than just fire it.
[Defense counsel]: And when you say no more than firing it, what does that mean to you?
[Sippio]: That my hand was on the trigger.
[Defense counsel]: Did you pull the trigger?
[Sippio]: Yes, sir.
[Defense counsel]: How many times did you pull the trigger?
[Sippio]: It was numerous times. I don't remember how many times. Maybe once, twice or three times, I don't remember.
* * *
[Defense counsel]: Where was the gun pointed?
[Sippio]: On an angle towards her, by the eye, somewhere along in there.
[Defense counsel]: Why were you pointing the gun there?
[Sippio]: I was just playing with the gun.
* * *
[Defense counsel]: And what happened when you were playing with it?
[Sippio]: After I finished playing with it the first time, the second time nothing happened.
[Defense counsel]: ... [W]hat did Ms. Branch do?
[Sippio]: Ms. Branch was standing right in front of me.
[Defense counsel]: Had you ever done this before?
[Sippio]: Only in the privacy of the bedroom area. Behind closed doors.
*869 [Defense counsel]: But you did it this morning, is that correct?
[Sippio]: Yes, sir, I did.
* * *
[Defense counsel]: What happened?
[Sippio]: First, like I said, the first two times, nothing came out of the gun at all. * * * Then a shot came out.
[Defense counsel]: And then what happened?
[Sippio]: Ms. Branch dropped right in front of me."
Then, according to Sippio, he grabbed Demetrius and exited the house.
The jury acquitted Sippio of first-degree murder, but convicted him of second-degree murder, felonious use of a handgun, and unlawfully wearing, carrying, and transporting a handgun. Sippio was sentenced to thirty years imprisonment for the second-degree murder conviction and to a concurrent five-year term for the felony handgun conviction. The court merged the other handgun conviction.
On June 11, 1997, in an unreported per curiam opinion, the Court of Special Appeals affirmed Sippio's convictions, holding that the testimony of the medical examiner was properly admitted. The intermediate appellate court also concluded that the requirement set forth in Sahin, supra, precluded Sippio from introducing character testimony as to his veracity before he testified. The court rejected a third claim raised by Sippio, not presently before this Court, that irrelevant and prejudicial evidence was admitted by the trial court. Sippio petitioned this Court, and we granted certiorari on September 15, 1997.
II.
The first issue on appeal is whether the trial court properly allowed Dr. Smialek's opinion testimony that Branch's manner of death was "homicide." Manner of death, as opposed to cause of death, refers to how the death occurred, the circumstances surrounding the decedent's death, e.g., whether the death was the result of a suicide, homicide, accident, or natural causes. Cf. Schlossman v. State, 105 Md.App. 277, 297 n. 5, 659 A.2d 371, 381 n. 5 (1995), cert. dismissed, 342 Md. 403, 676 A.2d 513 (1996). Cause of death, on the other hand, is the actual process which produces the death. Cf. id. During the State's case-in-chief, Dr. Smialek testified that Branch's cause of death was a gunshot wound to the head, and the medical examiner's report that Dr. Smialek prepared was admitted into evidence without objection. On redirect examination, Dr. Smialek testified that he placed an "X" on the medical examiner's report to denote that Branch's manner of death was homicide. Sippio objected, and the court overruled the objection.
The contested issue at trial surrounding Branch's death was whether the shooting by Sippio was accidental or deliberate. According to Sippio, by testifying that the manner of death was homicide, Dr. Smialek was explicitly rejecting the possibility that the shooting was an accident. Sippio contends that, although "the term `homicide,' taken alone, does not constitute a crime[, w]hen juxtaposed with such concepts as accident, suicide, and natural causes, ... it clearly takes on a criminal connotation." Sippio also claims this testimony reached a legal conclusion reserved for the jury and, therefore, was not a proper subject of expert opinion testimony according to settled Maryland case law. We disagree.
A.
Prior to the instant case, this Court had not addressed the admissibility of a medical examiner's testimony concerning manner of death. We did, however, address a similar issue in Benjamin v. Woodring, 268 Md. 593, 303 A.2d 779 (1973), which involved the admissibility of a death certificate containing a medical examiner's written opinion as to manner of death. In Benjamin, the testator's wife commenced a civil suit against the personal representative of the testator's estate, seeking to have the testator's earlier will admitted to probate, thus nullifying a later will. 268 Md. at 595, 303 A.2d at 781. She claimed that, at the time the testator executed the subsequent will, he was suffering from an insane delusion regarding her marital fidelity and thus lacked testamentary *870 capacity. Benjamin, 268 Md. at 600, 303 A.2d at 784. An autopsy was performed on the testator by an assistant state medical examiner, Dr. Charles Springate. The jury was advised that the death certificate prepared by Dr. Springate stated that the "`immediate cause of death was an overdose of barbiturates.'" Benjamin, 268 Md. at 596, 303 A.2d at 782. Upon the personal representative's objection, however, the trial court refused to admit into evidence the death certificate itself which contained the medical examiner's opinion that the manner of the testator's death was suicide. Id. A finding of suicide would have supported the wife's assertion that the testator suffered from insane delusions at the time the later will was drawn. Benjamin, 268 Md. at 605, 303 A.2d at 786.
The trial court in Benjamin excluded the manner of death portion of the death certificate from evidence based on Md.Code (1957, 1971 Repl.Vol.), Article 43, § 26,[2] which provided in pertinent part: "`Certificates of birth, death and fetal death filed within one year after the event, and certified copies of such certificates shall be prima facie evidence of the facts therein stated. ...'(Emphasis added.)" 268 Md. at 606, 303 A.2d at 787. The trial court interpreted that section of the statute to mean that, despite a statutory mandate that certain information be incorporated into the certificate, not all information contained in a death certificate qualified as facts. Benjamin, 268 Md. at 606-07, 303 A.2d at 787. The trial court referred to such nonfactual information as "`indications, inferences, or conclusions drawn by the certificate maker.'"[3]Benjamin, 268 Md. at 606, 303 A.2d at 787. This Court affirmed the trial court's exclusion of the death certificate from evidence, reasoning that the legislature evidently intended to limit the medical examiner's investigative duties to "`essential facts concerning the medical causes of death.'" Benjamin, 268 Md. at 608, 303 A.2d at 788 (quoting Md.Code (1957, 1973 Repl.Vol.), Art. 22, § 6)(emphasis added in Benjamin).[4] Sippio now urges this Court to extend Benjamin one step further to prohibit per se a medical examiner's testimony at trial regarding manner of death. As we shall explain, however, we do not believe such an extension is warranted. We turn now to the statutory basis for the medical examiner's opinion and developments in that law which make Benjamin inapposite.
B.
Section 5-301 et seq. of the Health-General Article establishes the State Postmortem Examiners Commission and sets forth the procedures for the medical examiner to follow where death occurs as a result of, for example, suicide, violence, etc. Where such deaths occur, § 5-309 requires the medical examiner to investigate. Section 5-311 requires the medical examiner to keep complete records of each such case. As part of the medical examiner's investigation, the medical examiner receives notice from the police or sheriff of "facts concerning the time, place, manner, and circumstances of *871 the death." § 5-309(b). The medical examiner shall perform an autopsy if the medical examiner considers it necessary. § 5-310. If so, the autopsy report is attached to the record of the medical examiner's case pursuant to § 5-311(b). After the medical examiner's report and autopsy are completed and after performing an investigation, the medical examiner then "deliver[s] to the State's Attorney for the county where the body was found a copy of each record that relates to a death for which the medical examiner considers further investigation advisable." § 5-311(c). This record[5] can be used as "competent evidence in any court in this State of the matters and facts contained in it." § 5-311(d)(2).
Before 1990, it was the practice of the medical examiner to record the manner of death on a death certificate form.[6] It was not until a 1990 amendment to the Health-General Article, however, that the legislature specifically added "manner of death" to the list of items[7] that a medical examiner was to record in the records of each case. See Chapter 238 of the Acts of 1990 (amending § 5-311(a)(2)(iii)). At that time, the legislature did not define manner of death, nor did it mandate how manner of death should be expressed in the medical examiner's records.
The issue in the instant case is, thus, whether a medical examiner may testify to a finding, i.e., manner of death, which he or she is required by law to denote and record for possible use at trial. To create a per se rule prohibiting such testimony would be akin to holding that medical examiners are not qualified to determine manner of death, or that medical examiners' findings are generally unreliable evidence in a court of law. We choose not to do so, for the wisdom of our legislature has guided us in a different direction. When this Court decided Benjamin, determining manner of death was merely "incumbent upon [medical examiners] in completing the [death certificate] form." 268 Md. at 609, 303 A.2d at 788. By specifically adding the words "manner of death," however, the 1990 statutory amendment made it abundantly clear that the legislature intended to bring the determination of manner of death into the province of the medical examiner's duties.
Prior to the 1990 amendment, the Court of Special Appeals upheld the trial court's admission of a medical examiner's opinion as to a child's manner of death in Terry v. State, 34 Md.App. 99, 366 A.2d 65 (1976). In Terry, Mary Alice Terry was convicted of child abuse and second-degree murder of her five-year-old son. At trial, an assistant medical examiner testified that the child's death "`resulted from cumulative effects of repeated child abuse.'" Terry, 34 Md.App. at 102-03, 366 A.2d at 67. The medical examiner was later asked to give an opinion as to the child's manner of death. Terry, 34 Md.App. at 104, 366 A.2d at 68. Over Terry's objection, the medical examiner testified: "`In view of the evidence presented I come to the conclusion that the manner of death is to be considered as homicide.'" Terry, 34 Md. App. at 105, 366 A.2d at 68. On appeal, the Court of Special Appeals found Benjamin to be inapposite on the issue of a medical examiner's opinion testimony on manner of death. Terry, 34 Md.App. at 107, 366 A.2d at 70. As the intermediate appellate court explained:
"In spite of the suggestion by the Court [in Benjamin ] that the investigative duties of medical examiners are limited by law to `essential facts concerning the medical causes of death,' we cannot conceive that this precludes calling the medical examiner as an expert witness to express his opinion in a case. Once called, testifying under oath, subject to the requirement that he state the basis for his conclusion and be subject to cross-examination, an entirely different situation exists than an effort to introduce that opinion into evidence solely on the basis of a death certificate." (Citation omitted).
*872 Terry, 34 Md.App. at 107-08, 366 A.2d at 70. We believe Benjamin is similarly inapplicable here. Consequently, we reject Sippio's request to extend Benjamin to include the prohibition per se of a medical examiner's testimony regarding manner of death.
Our inquiry, however, does not end here. Dr. Smialek's testimony, as with all lay and expert opinion testimony, is subject to certain requirements in order to qualify as admissible evidence in a court of law. We must now decide whether Dr. Smialek's testimony as to manner of death was properly admitted into evidence.
C.
Under the well-established Maryland common law of evidence, it is within the sound discretion of the trial court to determine the admissibility of expert testimony. See Simmons v. State, 313 Md. 33, 41, 542 A.2d 1258, 1262 (1988); State v. Allewalt, 308 Md. 89, 101, 517 A.2d 741, 747 (1986); Nizer v. Phelps, 252 Md. 185, 192, 249 A.2d 112, 116 (1969). The Maryland Rules of Evidence, adopted by this Court in 1994, did not limit that discretion. See Maryland Rule 5-702. A trial court's ruling either admitting or excluding such testimony "will seldom constitute a ground for reversal." Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472, 476 (1977). Such a ruling, however, may be reversed on appeal "if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion." Id.
According to Md. Rule 5-702, which codified the modern common-law rule regarding expert testimony, a trial court must determine whether the evidence to be presented is a proper subject of expert testimony. The inquiry turns on whether the trier of fact will receive appreciable help from the expert testimony in order to understand the evidence or to determine a fact in issue. See Simmons, 313 Md. at 41, 542 A.2d at 1262; Bloodsworth v. State, 307 Md. 164, 184-85, 512 A.2d 1056, 1066 (1986)(quoting Shivers v. Carnaggio, 223 Md. 585, 588-89, 165 A.2d 898, 900 (1960)). The trial court need not consider whether the trier of fact could possibly decide the issue without the expert testimony. Nizer v. Phelps, 252 Md. at 193, 249 A.2d at 117. Nor must the subject of the expert testimony be so far beyond the level of skill and comprehension of the average layperson that the trier of fact would have no understanding of the subject matter without the expert's testimony. 6 LYNN MCLAIN, MARYLAND EVIDENCE § 702.1, at 212-13 (1987).
In ascertaining whether expert testimony will be helpful to the trier of fact, a trial court must instead determine whether certain requirements have been satisfied: (1) the proposed witness must be qualified to testify as an expert; (2) the subject matter about which the witness will testify must be appropriate for expert testimony; and (3) there must be a legally sufficient factual basis to support the expert's testimony. Md. Rule 5-702; see also Simmons, 313 Md. at 41-42, 542 A.2d at 1262. Here all three requirements are met.
First, Dr. Smialek was qualified to testify as an expert in the area in which he was testifying. In order to determine whether a proposed witness is qualified to testify as an expert, the trial court must examine whether the witness has sufficient knowledge, skill, experience, training, or education pertinent to the subject of the testimony. See Md. Rule 5-702(1); see also Simmons, 313 Md. at 41, 542 A.2d at 1262; Crews v. Director, 245 Md. 174, 179, 225 A.2d 436, 439 (1967). In the instant case, we find no merit to Sippio's assertion that Dr. Smialek's expertise as a forensic pathologist did not qualify him to render an opinion as to manner of death. Dr. Smialek was qualified as an expert in forensic pathology without challenge by the defense. Moreover, Dr. Smialek explained that forensic pathologists are "trained to recognize certain patterns of injury and [have] to be familiar with gunshot wounds ... so that [they] can render a proper diagnosis in an attempt to reconstruct the events surrounding the sudden death of an individual." His testimony as to manner of death was, therefore, consistent with his extensive medical training and professional experiences.
Second, the subject matter about which Dr. Smialek testified was appropriate *873 for expert testimony. See Md. Rule 5-702(2). To properly conclude this, the trial court must determine, in essence, whether the subject matter is beyond the proper realm of expert opinion testimony. See, e.g., Simmons, 313 Md. at 47, 542 A.2d at 1265; see also Stebbing v. State, 299 Md. 331, 347-48, 473 A.2d 903, 910-911, cert. denied, 469 U.S. 900, 105 S. Ct. 276, 83 L. Ed. 2d 212 (1984). Here, Dr. Smialek personally performed the autopsy on Branch. He described the nature of the fatal gunshot wound in an articulate and concise manner so that the jury could understand the exact cause of death. On cross examination, Dr. Smialek testified that the density of gun powder residue found on her skin indicated that the gunshot was fired at close range to Branch's head. He also testified that he had received information from Detective Steinhice prior to performing the autopsy as to the circumstances surrounding the shooting. On recross examination, Dr. Smialek testified:
"[Dr. Smialek:] I had information that [Sippio] had told the police that he had shot Ms. Branch.
[Defense Counsel:] And did that aid you in coming up with the conclusion that it was not a natural, accidental, suicidal or undetermined cause of death?
[Dr. Smialek:] I considered that information together with the physical findings on the body, the fact that the wound was not a typical contact gunshot wound such as I would see in a suicide.
So that the form from the investigation together with my findings at the autopsy allowed me to reach a conclusion that this was a homicide, which means that someone else fired a weapon to kill Ms. Branch." (Emphasis added).
Although suicide was not an issue raised in this case, Dr. Smialek's professional training and experience enabled him to reject this potential manner of death. The nature of the gunshot wound to Branch's head was consistent with a finding of homicide. Dr. Smialek's finding that the gun was discharged at a distance of four to eight inches from Branch's head, in conjunction with the path of travel of the discharged bullet, enabled Dr. Smialek to reject the shooting as an accident.
Moreover, Dr. Smialek aided the jury by distinguishing between homicide and accident. The pertinent testimony is as follows:
"[Defense Counsel:] If a shooting is an accidental shooting and you examined the body of that accident victim not knowing whether it is an accident or not, and the cause of death is a gunshot wound to the head, would you use the block homicide to check off your findings?
[Dr. Smialek:] I'm not sure I understand your question.
If the information available to me indicates that a gunshot wound was the result of an accident such as a gun falling onto a floor and discharging, I would call [it] an accident.
Is that what the form from the investigation to go with my examination led me to believe? I would not call an accident a homicide. I wouldn't call a homicide an accident."
Dr. Smialek testified further:
"[Defense Counsel:] And homicide has a lot of different categories, does it not, sir?
[Dr. Smialek:] Legally there are categories for homicides, yes.
[Defense Counsel:] What would those categories include, if you know?
* * *
[Dr. Smialek:] There are categories that include self defense, categories that allow a homicide that's caused in the course of say police action to be excusable.
Those are some of the categories.
Self defense is a categorization of homicide.
[Defense Counsel:] All of that would be included under your check mark of homicide, correct?
[Dr. Smialek:] I don't consider those particular factors.
What leads to the homicide, whether it was intentional or unintentional in reaching my conclusion, those are legal issues.
[Defense Counsel:] So intent, what caused that person to be on your table, is *874 not part of your conclusion in this report, is that correct?
[Dr. Smialek:] That's right. The intent of the person who pulls the trigger isn't something that I can consider."
It is conceivable that, without explanation, the term homicide suggests to the average layperson a degree of culpability greater than accident. This, however, supports our view that Dr. Smialek's testimony was helpful to the jury. Without Dr. Smialek's testimony, the jurors may have concluded that the word homicide, referred to in the medical examiner's report that was admitted into evidence, connoted a degree of culpability greater than its definition allows. Dr. Smialek's testimony, in essence, neutralized the unexplained manner of death listed on the autopsy report previously admitted into evidence.
In concluding that the subject of Dr. Smialek's testimony was appropriate for expert testimony, we also reject Sippio's contention that Dr. Smialek's opinion testimony was inadmissible because it resolved a conflict in the evidence and because it related to the credibility of a witness. Dr. Smialek's testimony as to manner of death did not resolve a conflict in the evidence. Expert opinion testimony, like any opinion testimony, is designed to introduce, bolster, or place doubt on evidence properly admitted before the trial court. The fact that Petitioner and Respondent have different theories of Branch's death in no way precludes either party from introducing evidence that tends to support or place doubt on previously admitted evidence. Similarly, Dr. Smialek's testimony did not resolve a question of Sippio's credibility merely because Sippio denied the shooting was deliberate. Had Dr. Smialek testified that Sippio's credibility was questionable based on statements Sippio made before or during trial, an exclusion of such testimony might have been proper. Dr. Smialek, however, did not opine on Sippio's credibility.
Finally, there was a sufficient factual basis to support Dr. Smialek's testimony. See Md. Rule 5-702(3); see also State Health Dep't v. Walker, 238 Md. 512, 520, 209 A.2d 555, 559-60 (1965)(stating "[t]he facts upon which an expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere conjecture or guess"). A factual basis for expert testimony may arise from a number of sources, such as facts obtained from the expert's first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions. 6 LYNN MCLAIN, MARYLAND EVIDENCE, § 703.1, at 236-37 (1987). Here, Dr. Smialek's examination of Branch, in conjunction with his statutorily-mandated discussion with Detective Steinhice concerning the circumstances of the shooting, see § 5-309(b), provided Dr. Smialek with a sufficient factual basis from which to testify as to manner of death. His finding of homicide was, thus, not the result of conjecture or guess. Rather, it was supported by medical facts determined by Dr. Smialek himself as well as relevant information obtained from a reliable police source.
D.
Sippio also argues that Dr. Smialek's opinion on manner of death was a legal conclusion "appropriately committed to the judgment of the trier of fact." This is tantamount to arguing that Dr. Smialek's opinion was inadmissible because it went to the ultimate issue reserved for the jury to decide. We reject this contention for two reasons. First, Md. Rule 5-704(a) specifically provides that opinion testimony "otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact." If the opinion testimony of an expert does embrace an ultimate issue to be decided by the jury, the court determines whether the testimony is helpful to the trier of fact under Md. Rule 5-702. The exception to Md. Rule 5-704(a) is that an expert is specifically precluded by rule from testifying to whether a defendant possessed the requisite mental state that constitutes "an element of the crime charged." Md. Rule 704(b). Although the ultimate issue in this case was whether Sippio possessed the requisite mental state for murder, this, as we shall discuss below, was not the subject of Dr. Smialek's testimony.
*875 Second, whether Branch's death was a homicide was not the ultimate issue in this case, and Dr. Smialek's opinion on Branch's manner of death was not a legal conclusion reserved for the trier of fact. Homicide is the "killing of one human being by the act, procurement, or omission of another." BLACK'S LAW DICTIONARY 734 (6th ed.1990). Similar definitions of homicide are found in WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED, at 1083 (Philip B. Gove ed., 1986) and THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED, at 914 (2d ed.1987) both of which define homicide as "a killing of one human being by another." In fact, the term homicide descended originally from the Latin term "homicidium" meaning "killing." THE RANDOM HOUSE DICTIONARY OF ENGLISH LANGUAGE, UNABRIDGED, at 914 (2d ed.1987). Significantly,
"Homicide is not necessarily a crime. It is a necessary ingredient of the crimes of murder and manslaughter, but there are other cases in which homicide may be committed without criminal intent and without criminal consequences.... The term `homicide' is neutral; while it describes the act, it pronounces no judgment on its moral or legal quality."
BLACK'S LAW DICTIONARY 734 (6th ed.1990); see also People v. Mahon, 77 Ill.App.3d 413, 32 Ill. Dec. 569, 395 N.E.2d 950, 958 (1979)(concluding that it was proper to instruct the jury that "`[h]omicide is a comprehensive word which means any killing of a human being. It does not necessarily import a crime.'"). In the instant case, it is undisputed that Sippio killed Branch. The overwhelming evidence at trial, including Sippio's own admission that he shot Branch, supports this finding. Thus, this issue was never in dispute for the jury; they could not have reached any other conclusion but that Sippio committed a homicide.
What was in dispute at trial was whether Sippio shot Branch intentionally or accidentally. Intent, therefore, was the ultimate issue in this case. To secure a conviction of first- or second-degree murder, the State bore the burden to prove beyond a reasonable doubt that Sippio intentionally shot Branch. Only the jury could decide whether Sippio possessed the requisite mental state for such a conviction. The jury could excuse criminal culpability for an accidental shooting like the one Sippio describes. Before the jury could assess criminal culpability, however, it had to decide whether a homicide had even occurred. Dr. Smialek did not testify to Sippio's intent, but rather merely testified that Branch's death occurred as a result of a homicide. In fact, Dr. Smialek clearly testified that intent was not a factor in his determination of manner of death. As properly explained by Dr. Smialek himself, homicide in itself does not equate to criminal culpability; instead it is the killing of one human being by another human being, regardless of the intent of the party who commits the act. We, thus, find no merit to Sippio's contention that Dr. Smialek's testimony invaded the province of the jury.
We, therefore, conclude that Dr. Smialek's expert testimony met the standards for admissibility pursuant to Md. Rule 5-702 and supporting case law. His testimony was obviously helpful to the jury and did not encroach on the province of the jury to decide the ultimate issue in the case. Furthermore, his testimony was based on a sufficient factual foundation and supported by his qualifications as an expert witness. Thus, the trial court did not err in allowing, over the objections of the defense, Dr. Smialek's testimony as to manner of death.
Because of the unique facts in the instant case, however, our holding today is limited. As we discussed earlier, the medical examiner's report from which Dr. Smialek testified was admitted into evidence without Sippio's objection, unlike in Benjamin, where the death certificate was excluded upon objection by the non-offering party. We are, therefore, not asked to address whether the medical examiner's report prepared by Dr. Smialek would have been excluded from evidence had Sippio objected to its admission. By failing to object to its admissibility, Sippio waived the ability to preserve the issue for appeal, and the medical examiner's report, with the manner of death portion marked "homicide," was admitted for the jury to examine. Dr. Smialek's testimony, referring *876 to the manner of death portion of the report, simply reiterated information properly admitted by the court. In addition, Dr. Smialek properly testified to his opinion and was available for cross-examination. We note that if a medical examiner's report is admissible as an official record pursuant to Md. Rule 5-803(8), it makes sense that the jury should be informed about the meaning of the term "homicide" and that it connotes no culpable state of mind.
E.
We also note that other jurisdictions have generally been willing to allow such testimony. While not all states use the same terminology as Maryland, a number of states have addressed factual circumstances where medical experts testified that wounds or other traumatic injuries to the deceased were caused accidentally, by self-infliction, or by the act of another person or persons. With the exception of Minnesota, states that have addressed the issue have suggested they would allow this type of opinion testimony if certain requirements are met.
The majority of states allowing this type of opinion testimony have done so if the opinion is within the expert's field of expertise and is helpful to the trier of fact. See, e.g., Medlock v. State, 263 Ga. 246, 430 S.E.2d 754, 756-57 (1993); State v. Byles, 652 So. 2d 59, 61-62 (La.Ct.App.1995)("A physician testifying as an expert may properly give an opinion as to the probable manner in which a wound or other traumatic injury was inflicted where such testimony is based on facts within the expert's knowledge."); Com. v. Pikul, 400 Mass. 550, 511 N.E.2d 336, 339 (1987); State v. Jones, 59 Wash.App. 744, 801 P.2d 263, 267 (1990)("[U]nder the facts and circumstances presented, the doctors were better qualified than jurors to adjudge the cause of death and whether the fatal blow was accidental or inflicted."), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991); State v. Smith, 178 W.Va. 104, 358 S.E.2d 188, 191 n. 1 (1987).
In Medlock, for example, the court concluded that the expert's testimony was admissible because it was helpful to the trier of fact in that "the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman." 430 S.E.2d at 756 (internal citations and quotations omitted). There, a pathologist who performed the autopsy on the infant victim testified at trial that the manner of death was homicide. Id. The Medlock court ruled that the expert's opinion "that the infant's death resulting from shaking could only be homicide merely reiterated and underscored his opinion that death in this case resulted from shaking, rather than by accident or by intentional causes." Id. That opinion, the court concluded, was helpful because it was beyond the ken of the average layman. Moreover, because the jury could not reach any conclusion, based on the expert's testimony, other than that the death was by homicide, the testimony did not invade the province of the jury. Medlock, 430 S.E.2d at 757. The court suggested, however, that had the expert testified that the infant died as a result of blunt force trauma to the head, it would have been impermissible to allow the opinion that the manner of death was homicide because the jury would have been able to conclude from the evidence presented whether the death occurred accidentally or by intentional cause. Medlock, 430 S.E.2d at 756-57.
In Pikul, three expert physicians, two of whom assisted in performing the autopsy on a three and one-half-year-old female, testified that the child's manner of death was traumatic sexual asphyxia, or forced oral sex. 511 N.E.2d at 339. The reviewing court noted that such testimony, if within the expert's area of expertise, is admissible as long as it aids the jury. Id. The court also stated that, "[a]n expert who has performed an autopsy may testify that the injuries observed could have been caused in a particular way or by a specified instrumentality." Id.
Other jurisdictions have suggested that such opinion testimony, while excluded in the particular case, may have been properly admitted had it been within the expert's field of expertise or helpful to the trier of fact. See, e.g., People v. Perry, 229 Ill.App.3d 29, 170 Ill. Dec. 823, 593 N.E.2d 712, 716 (1992) ("[Pathologist's] opinion as to homicide ... did not in any way add to the evidence already presented *877 to the jury or assist them in reaching their own conclusions."); State v. Vining, 645 A.2d 20, 21 (Me.1994) (holding that medical examiner's conclusion that victim died as a result of homicide was inadmissible because the conclusion was not a product of her expertise, but rather merely based on her conversations with police investigators); State v. Jamerson, 153 N.J. 318, 708 A.2d 1183, 1195 (1998); State v. Bragan, 920 S.W.2d 227, 246 (Tenn.Crim.App.1995).
In Jamerson, for example, the court reviewed a defendant's conviction for two counts of second-degree reckless manslaughter based in part on operating a motor vehicle while under the influence. 708 A.2d at 1186. There, a county medical examiner testified at trial that the defendant committed "vehicular homicide," as opposed to a "vehicular accident," when his car struck another car, resulting in the eventual deaths of an elderly couple who were in the other vehicle at the time. Jamerson, 708 A.2d at 1189. The court ruled that it was improper to have allowed this testimony because expert testimony should only be permitted if it will assist the trier of fact in understanding the evidence or in determining a fact at issue. Jamerson, 708 A.2d at 1194-95. The expert, who was qualified in forensic pathology, should have been limited to testifying to "the physical properties of the implement that caused the [decedents'] deaths, narrating the physiological status of the bodies at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence." Jamerson, 708 A.2d at 1193. Testifying that the collision was a homicide, however, went beyond the expert's area of expertise. See Jamerson, 708 A.2d at 1194. The court noted that the jury was as competent as the expert to analyze the evidencewitness statements, blood-alcohol level of the defendant, position of the cars at the point of impactand determine whether the collision was an accident or a homicide. Jamerson, 708 A.2d at 1195.
Several jurisdictions allow opinion testimony of this nature when the testifying expert was the preparer of the autopsy report or the expert's opinion was based on inferences drawn from evidence presented to the trier of fact. See, e.g., Wright v. State, 266 Ind. 327, 363 N.E.2d 1221 (1977); Pikul, 511 N.E.2d at 340 n. 3 ("Even where an expert may have been exposed to hearsay in the investigation of the case, his opinion may be admitted where based `primarily, if not exclusively, on facts [the expert] himself observed and testified to.'" (Citation omitted)); State v. Chew, 150 N.J. 30, 695 A.2d 1301 (1997). In Wright, for example, the physician, who performed the autopsy on a twenty-one-month-old child, died before the commencement of the trial, and a deputy coroner was permitted to testify to the findings in the report. 363 N.E.2d at 1228. The reviewing court emphasized that the deputy coroner's testimony was based upon the autopsy report and autopsy photographs previously admitted into evidence. Wright, 363 N.E.2d at 1229. As long as the deputy coroner was properly qualified in the area of forensic pathology, the court ruled he was qualified to testify to manner and cause of death based on the sufficient factual basis before the court, i.e., the previously admitted autopsy report and photographs. See Wright, 363 N.E.2d at 1229.
Likewise, in State v. Chew, the county medical examiner testified that "crisscross scratches" were found on the victim's face, and that the wounds were made while the victim was "`either restrained or certainly not moving ... [and] were deliberate.'" 695 A.2d at 1331. The Supreme Court of New Jersey held that such testimony was permissible, because photographs of the victim's wounds were previously admitted into evidence. Id. The court stated: "To have omitted [the medical examiner's testimony] may have confused the jury" because the wounds were clearly visible in the photographs. Id. Moreover, the jurors were allowed to consider testimony on manner of death during the guilt-innocence phase of the trial, but were specifically instructed not to consider such testimony during the penalty phase of the trial. Id. Similarly, in the instant case, the medical examiner's report indicating that Branch died as a result of a homicide was in evidence and might have confused the jury absent further explanation.
*878 Several jurisdictions specifically allow opinion testimony of this nature despite its presentation in the form of an ultimate issue reserved for the trier of fact. See, e.g., Pikul, 511 N.E.2d at 339 ("`[U]nder modern standards, expert testimony on matters within the witness's field of expertise is admissible... even if the expert's opinion touches on the ultimate issues that the jury must decide.'" (Citation omitted)); Jones, 801 P.2d at 267 ("Although the [experts'] conclusions touch on the ultimate issue, that in itself does not make the testimony inadmissible"); Smith, 358 S.E.2d at 191 n. 1. In Smith, for example, a state medical examiner testified that the gunshot wound that caused the victim's death was not self-inflicted. 358 S.E.2d at 191. The defense argued that this opinion was impermissible under the court's prior holding in State v. Clark, 171 W.Va. 74, 297 S.E.2d 849, 853 (1982), where the court concluded that the medical examiner's testimony in that case as to manner of death invaded the "fact finding function of the jury by making the ultimate factuallegal conclusion that is central to an element of the crime." The reviewing court in Smith, however, implicitly indicated that the testimony was admissible because, since its ruling in Clark, the court had adopted Rule 704 of the West Virginia Rules of Evidence, allowing expert opinion testimony despite its presentation in the form of an ultimate issue. 358 S.E.2d at 191 n. 1. We note that West Virginia Rule of Evidence 704 is substantively identical to Md. Rule 5-704.
Courts in several jurisdictions have concluded that opinion testimony of this nature did not encroach on the ultimate issue reserved for the trier of fact. See, e.g., Maxwell v. State, 263 Ga. 57, 428 S.E.2d 76, 77 (1993)("Because [the expert's] testimony [regarding the possibility of death by a single blow] pertains to conclusions jurors would not ordinarily be able to draw for themselves, it does not invade the jury's province."); Byles, 652 So.2d at 62 (finding that medical expert had expressed opinion that cause of death was strangulation and that victim was restrained in some fashion, but had "not express[ed] an opinion on the guilt or innocence of the accused, the ultimate fact to be decided by the jury"); State v. Young, 662 A.2d 904, 907 (Me.1995). In Young, for example, the Supreme Judicial Court of Maine found that the medical examiner's testimony that the victim's manner of death was homicide was properly admitted at trial, because the testimony neither exceeded the expert's field of expertise nor invaded the province of the jury. 662 A.2d at 907. Significantly, the Young court noted, the medical examiner's opinion did not purport to address the defendant's state of mind at the time of the killing, a factor which caused similar testimony to be excluded in State v. Flick, 425 A.2d 167, 171 (Me.1981).
Finally, Pennsylvania has allowed opinion testimony as to manner of death where the opinion is stated within a reasonable degree of medical certainty. See, e.g., Com. v. Floyd, 499 Pa. 316, 453 A.2d 326, 328 (1982); Com. v. Hart, 348 Pa.Super. 117, 501 A.2d 675, 677 (1985). In Floyd, the medical examiner testified that, within a reasonable degree of medical certainty, the manner of the victim's death was homicide. 453 A.2d at 327. The Supreme Court of Pennsylvania found that there was "adequate evidence in the record of causation for the finder of fact to conclude beyond a reasonable doubt that the cause of death was a criminal act," and, therefore, the expert's opinion was properly admitted. Floyd, 453 A.2d at 328. The court quoted Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873, 879 (1975), for the proposition that: "[I]t is only necessary that the [medical examiner] entertain a `reasonable degree of medical certainty' for his conclusions." Floyd, 453 A.2d at 328. In Hart, a medical examiner testified that the child's manner of death was homicide based on the extensive injuries to the child's head, buttocks, and thighs. 501 A.2d at 676-77. The court concluded that this testimony, stated within a reasonable degree of medical certainty, "established far more than a probability that [the child's] death was caused by a criminal act." Hart, 501 A.2d at 677. Our opinion today that Dr. Smialek's testimony was properly admitted is, thus, consistent with case law in other jurisdictions.
III.
The second issue on appeal involves the introduction of character evidence regarding *879 Sippio's character for truthfulness. Before Sippio testified at trial, Sippio called Michael Martin as a character witness to testify that Sippio had a good character for truthfulness. The State objected, and the trial court sustained the objection. Sippio was subsequently called as the last witness for the defense.
Sahin v. State, supra, is the seminal Maryland case on this issue. In Sahin, this Court held that "a criminal defendant on trial for a veracity impeaching offense[8] may, after testifying, offer evidence of his or her good character for truthfulness." 337 Md. at 307, 653 A.2d at 453 (emphasis added). Sippio urges this Court to interpret our previous holding in Sahin to allow a criminal defendant to present evidence of his or her good character for truthfulness before that defendant testifies at trial. We decline to do so.
Prior to Sahin, the rule in Maryland and the majority of jurisdictions was that character evidence for truthfulness would be allowed only after a defendant's character for truthfulness had been sufficiently attacked. See Sahin, 337 Md. at 313, 653 A.2d at 457.[9] The fact that a defendant had been charged with a crime or that the State's witnesses contradicted the defendant's testimony did not constitute an attack sufficient to allow such character testimony, according to the majority position. See Sahin, 337 Md. at 316, 653 A.2d at 458. The decision in Sahin, on the other hand, permits a criminal defendant to present character evidence for truthfulness merely by testifying, thus branding the State's bringing of criminal charges and presentation of evidence as a sufficient attack on a defendant's character for truthfulness. See Sahin, 337 Md. at 314, 653 A.2d at 457.[10]
In Sahin, we explained the reasoning for our departure from the majority position. 337 Md. at 316-22, 653 A.2d at 458-61. We concluded that the charging document and prosecutor's evidence that the defendant committed a veracity impeaching offense is an attack on the defendant's character for truthfulness. Sahin, 337 Md. at 314, 653 A.2d at 457. Thus, just as a defendant is entitled to introduce evidence of good character as a defense to a charge, see Md. Rule 5-404(a)(1)(A)("Evidence of a pertinent trait of character of an accused offered by the accused, or by the prosecution to rebut the same [is admissible]."), a criminal defendant on trial for a veracity impeaching offense who testifies should be able to present favorable evidence of his or her character for truthfulness. See Sahin, 337 Md. at 322, 653 A.2d at 461. The thrust of the Sahin decision, however, is that a criminal defendant must testify to present such evidence. Absent this testimony, a defendant's character for truthfulness is not relevant because that defendant has not placed his or her veracity in question.
Yet Sippio would urge us to stretch the bounds of our minority position even further by removing altogether the requirement that a criminal defendant must testify before presenting evidence of his or her good character for truthfulness. To do so would enable a criminal defendant to bolster his or her character for veracity without placing that character trait at issue. Had Sippio not testified and had the trial court allowed Michael Martin to testify to Sippio's good character for *880 truthfulness, the jury would be left to wonder, "Truthful to what? The defendant didn't say anything!" We must therefore adhere to the requirement in Sahin that a criminal defendant on trial for a veracity impeaching offense must testify before[11] presenting evidence of his or her good character for truthfulness.
We also reject Sippio's contention that the likelihood that a defendant will testify is sufficient to warrant the introduction of that defendant's good character for truthfulness. Sippio claims that his counsel, in opening statement to the jury, "promised" that Sippio would testify that the shooting death of Branch was accidental. Sippio's defense was predicated on the theory of accident, which, Sippio contends, cannot be proven in most cases unless the defendant takes the witness stand. Thus, according to Sippio, these factors made him a testifying defendant within the meaning of Sahin and Md. Rule 5-608. We disagree. Although the nature of the State's charge and the defense theory may contribute to the heightened probability that a criminal defendant will testify at trial, the well-established protection remains that a criminal defendant is not bound in any fashion to testify in his own defense. See U.S. CONSTITUTION amend. V; MARYLAND CONSTITUTION, DECLARATION OF RIGHTS, Art. 22. Similarly, Sippio's "promise" to testify during opening argument was not binding on Sippio. See McLhinney v. Lansdell Corp. of Md., 254 Md. 7, 13, 254 A.2d 177, 180 (1969)(noting that assertions made during opening statement are not admissible to establish the attorney's theory of the case, but may fall under the category of admissions made by an attorney, acting as his client's agent within the scope of his or her authority). Although Sippio did testify at trial, he was not bound to do so. We therefore find that Sippio was not a testifying defendant within the meaning of Sahin or Md. Rule 5-608.[12]
The mere announcement by a criminal defendant that he or she will testify, absent a formal proffer to the court that the defendant will testify in conjunction with permission of the court to vary the order of proof, is clearly insufficient to warrant evidence of a defendant's good character for truthfulness. While trial judges may vary the order of proof based on a proffer or condition, the judge is not required to do so. See Md. Rules 5-104(b) and 5-611(a). The trial court, therefore, did not err by refusing to permit Michael Martin to testify that Sippio possessed a good character for truthfulness prior to Sippio's actual testimony.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
NOTES
[1] Unless otherwise indicated, hereinafter all references are to Maryland Code (1982, 1994 Repl. Vol.), Health-General Article.
[2] Article 22 and the portions of Article 43 concerning Postmortem Examiners were repealed in 1982 and incorporated into the newly-formed Health-General Article, § 5-301 et seq. Chapter 21 of the Acts of 1982.
[3] Interestingly, when Benjamin v. Woodring, 268 Md. 593, 303 A.2d 779 (1973), was decided, line 22a of the Maryland death certificate form specifically called for the medical examiner's "opinion" as to manner of death. In Benjamin, this Court found that the intentional use of the word "opinion" supported a distinction between the manner of death and the other "facts" contained in the death certificate. 268 Md. at 608-09, 303 A.2d at 788. The Maryland death certificate form, however, no longer contains the word "opinion" in the section calling for manner of death. This change is significant because our decision in Benjamin relied to some extent on the intentional use of this word.
[4] In 1939, the Maryland legislature created the Department of Post Mortem Examiners. See Md. Code (1939, 1951 Repl.Vol.), Art. 22, § 1. The medical examiner replaced the office of the coroner. See Benjamin, 268 Md. at 608, 303 A.2d at 788. The coroners' power to summon a jury of inquisition, however, did not transfer to the office of the medical examiner. See id. Compare Md.Code (1939, 1951 Repl.Vol.), Art. 22, § 9 with Md.Code (1982, 1994 Repl.Vol.), Health-General Art., § 5-312. As a result, according to Benjamin, the legislature evidently relegated all non-medical investigative duties formerly held by coroners to the Office of the State's Attorney for Baltimore City and each respective county in Maryland.
[5] Record "[m]eans the result of a view or examination of or an autopsy on a body" but "[d]oes not include a statement of a witness or other individual." § 5-311(d).
[6] See supra note 3.
[7] Section 5-311(a)(2)(iii) also requires the medical examiner to record the date and cause of death.
[8] A veracity impeaching offense is defined as one that is "so relevant to credibility that convictions of the crime may be used to attack the credibility of a witness." Sahin v. State, 337 Md. 304, 307 n. 1, 653 A.2d 452, 453 n. 1 (1995). An offense qualifies as such if it meets the test set out in Maryland Rule 5-609, which shall include "an infamous crime [e.g., treason, crimen falsi, and felonies under the common law] or other crime relevant to the witness's credibility." Id.
[9] Federal Rule 608 reads in pertinent part:
"(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." (Emphasis added).
[10] Maryland Rule 5-608, adopted by the Court of Appeals in 1994, differs slightly from its federal counterpart mainly in style and organization, but not in substance. Although this rule was not in effect at the time of the trial court's decision in Sahin, it remains consistent with this Court's ruling in Sahin.
[11] Of course, this requirement does not prohibit a judge from exercising discretion under Md. Rules 5-104(b) and 5-611(a) to vary the order of proof upon the defendant's request and upon assurances that the defendant will testify. A request to vary the order of proof was not made in the instant case, and the judge did not err in refusing to exercise discretion to allow the veracity character testimony before the defendant testified.
[12] Sippio contends that requiring a criminal defendant to first testify before presenting character evidence for truthfulness exalts form over substance. As we noted earlier, however, Md. Rules 5-104(b) and 5-611 afford the trial court discretion over the mode and order of interrogating witnesses and presenting evidence. Thus, a criminal defendant, by way of formal proffer, may request that a trial court hear the testimony of a character witness, including evidence of the defendant's character for truthfulness, before the defendant testifies. The trial court's discretion to change the order of testifying witnesses is consistent with this Court's ruling in Sahin because the trial court still adheres to the condition in Sahin that a criminal defendant must testify in order to present evidence of his or her character for truthfulness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399865/ | 714 A.2d 603 (1998)
Donald TRAVERS
v.
Pedro G. VAZ et al.
No. 97-56-Appeal.
Supreme Court, of Rhode Island.
March 13, 1998.
Melody A. Alger, Dennis S. Baluch, Providence.
Michael J. Reed, Jr., Bellingham, MA, Jeanne E. LaFazia, Providence, Jeffrey D. Sowa.
ORDER
This case came before the Court on March 9, 1998, pursuant to an order directing the parties to appear and show cause why the issues raised in this case should not be summarily decided. The plaintiff, Donald Travers, has appealed the entry of a summary judgment in the Superior Court in favor of the defendants, William and Nancy Gosselin.
After hearing the arguments of counsel and reviewing the memoranda submitted by the parties, we are of the opinion that cause has not been shown. Therefore, the case will be decided at this time.
On January 10, 1992, at approximately 6:30 in the morning, Zenaide Torres (Torres) was traveling northbound on Route 146 in Lincoln, Rhode Island, when the vehicle she was driving spun around and struck a guardrail apparently because of black ice that had accumulated on the pavement. The Torres vehicle came to rest in the left northbound high speed passing lane facing in the opposite southerly direction. Sometime thereafter, William Gosselin (Gosselin), a defendant in this action, while operating a vehicle owned by Nancy Gosselin, approached the Torres vehicle as he drove north on Route 146. Gosselin stopped his vehicle in the left high-speed passing lane directly behind the Torres vehicle, but still facing north, and allegedly turned on his hazard lights to warn approaching drivers. He exited his vehicle so that he could assist the driver of the Torres vehicle. After observing that Torres was shaken but not seriously injured, Gosselin told her to exit her vehicle, and he helped her to the side of the road. He then drove the Torres vehicle to the right breakdown lane out of the lanes of travel. Almost immediately thereafter, Gosselin's vehicle was hit by a vehicle driven by Kenneth Armstrong (Armstrong), who has unsuccessfully, attempted to brake after coming upon Gosselin's vehicle over the crest of a hill. After Armstrong struck Gosselin's parked car, plaintiff collided with the Armstrong vehicle. The plaintiff, who suffered personal injuries as a result of the impact with the' Armstrong vehicle, filed a civil action in the Superior Court.
Gosselin moved for summary judgment based on the "Good Samaritan" statute. The Superior Court trial justice granted that motion and entered final judgment in favor of *604 the Gosselins. The plaintiff has appealed from that judgment.
Section 9-1-27.1 of the General Laws, the so-called Good Samaritan statute, provides that:
"No person who voluntarily and gratuitously renders emergency assistance to a person in need thereof shall be liable or civil damages which result from acts or omissions by such person rendering the emergency care, which may constitute ordinary negligence. This immunity does not apply to acts or omissions constituting gross, willful or wanton negligence."
The plaintiff has asserted that no emergency care or assistance was required and that Gosselin's acts constituted more than ordinary negligence. Therefore, plaintiff argued, the Good Samaritan statute is inapplicable here, and Gosselin is liable for injuries caused by his actions.
It is our opinion that the question of whether Gosselin exhibited ordinary or gross negligence was one for the jury to determine and thus should not have been decided on a summary judgment motion, given our holding that "[i]n Rhode Island the general rule is that negligence is a question for the jury unless the facts warrant only one conclusion." DeNardo v. Fairmount Foundries Crans., Inc., 121 R.I. 440, 448, 399 A.2d 1229, 1234 (1979) (citing Nelson v. Grilli, 117 R.I. 538, 368 A.2d 1234 (1977)). Here, the parties disagreed on whether Gosselin acted negligently when he moved his vehicle to the left passing lane and kept it there until after he had moved the Torres vehicle to the breakdown lane.
Additionally, whether there existed an emergency situation that warranted the application of the Good Samaritan statute is also an issue of fact if it was clearly apparent when Gosselin stopped his vehicle that Torres was not in imminent danger. See, e.g., Buck v. Greyhound Lines, 105 Nev. 756, 783 P.2d 437 (1989). Moreover, this Court has not addressed the significant issue of whether the Good Samaritan statute can be construed to apply to a third party who is injured in the course of a Good Samaritan's assistance to the original party in need.
Accordingly, for these reasons, the plaintiffs appeal is sustained. The final judgment appealed from is vacated, and the papers in this case are remanded to the Superior Court for a determination by the trial justice on whether the Good Samaritan statute should be extended to third parties and for a determination of the factual questions presented in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2399868/ | 714 A.2d 837 (1998)
1998 ME 193
Greg BURKE
v.
PORT RESORT REALTY CORP., et al.
Supreme Judicial Court of Maine.
Submitted on Briefs June 29, 1998.
Decided July 29, 1998.
*838 Jens-Peter W. Bergen, Kennebunk, for plaintiff.
Defendants did not file a brief.
Before WATHEN, C.J., and ROBERTS, RUDMAN, and DANA, JJ.
RUDMAN, Justice.
[¶ 1] Greg Burke appeals from the summary judgment entered in his favor by the Superior Court (York County, Fritzsche, J.). Burke contends that the court (i) erroneously interpreted a provision in his employment contract with Port Resort Realty Corp., operator of The Shawmut Inn, governing the payment of wages to Burke following his resignation, and (ii) erroneously determined that Port Resort did not violate 26 M.R.S.A. § 626 (Supp.1997), and thereby deprived him of the exemplary damages to which he is entitled pursuant to section 626. Because a material issue of fact exists precluding a summary judgment on the issue of whether Port Resort violated section 626, we vacate the judgment.
[¶ 2] In October of 1994, Burke was hired by Port Resort to serve as The Shawmut Inn's general manager and director of marketing and sales. The terms and conditions of Burke's employment were contained in an employment agreement, subsequently modified by a written addendum signed by Burke and the president of Port Resort, Ralph Bruno, that added a number of performance incentives and increased Burke's base salary. The agreement as amended provided for Burke to receive a 1% commission based on revenue received from all groups visiting The Shawmut Inn and a 3% commission based on revenue received from those groups for which Burke was the sales person responsible for the account. The amended agreement addressed the payment of Burke's commissions upon the cessation of his employment with Port Resort, stating:
It should be noted that should Greg [Burke] be laid off or terminated for any reason, with or without cause, all group commissions for business "on the books" going forward is to be estimated and paid upon departure. Otherwise, all group commissions are to be paid in full the pay period following payment in full by the group.
[¶ 3] Thirteen months to the day after his hiring, Burke submitted his resignation, effective that day. At the time of his resignation, Burke demanded an immediate lump sum payment reflecting commissions for groups booked for dates subsequent to the date of his resignation, and the cash value of the three weeks vacation to which he claimed he was entitled. Port Resort refused Burke's demand and instead allegedly offered to pay Burke as the income from the booked events was realized. Port Resort also allegedly offered Burke 1/12 of the cash *839 value of his vacation time because Burke had only worked one month into his second year at the Inn. Aside from two checks paid in December of 1995 totaling $79.46, Burke was not paid commissions due from events at The Shawmut Inn from 1995 through 1996.
[¶ 4] Burke commenced this suit and subsequently moved for a summary judgment against Port Resort. The Superior Court entered a summary judgment awarding Burke his earned commissions and 1/12 of the cash value of his vacation time.[1] The court specifically declined to find that Port Resort violated section 626, reasoning that "[a]ny attempt to pay the commissions through a series of smaller checks would have been pointless as [Burke] wanted all his estimated commissions in advance."
I.
[¶ 5] The employment agreement, not section 626, governs how wages are earned and, if specified, when wages are to be paid. See Purdy v. Community Telecomm. Corp., 663 A.2d 25, 28-29 (Me.1995) (wages due to employee determined by reference to employee agreement); cf. Rowell v. Jones & Vining, Inc., 524 A.2d 1208, 1210-11 (Me.1987) ("the conditions for earning vacation and the amount of vacation earned are governed by the terms of employment, not by [section 626]"). In this case, Burke was not owed wages subsequent to his resignation until his commissions were earned pursuant to his employment agreement with Port Resort. Burke's employment agreement unambiguously specifies how Burke's future commissions would be paid if Burke was "laid off or terminated for any reason with or without cause," and how Burke's commissions would be paid if his employment "otherwise" ended. Burke was not laid off or terminated and thus the trial court correctly determined that, pursuant to the employment agreement, Burke's commissions were due "in full the pay period following payment in full by the group."
II.
[¶ 6] Burke contends that, regardless of whether his employment contract required the immediate or incremental payment of his commissions, Port Resort violated section 626 because Port Resort failed to pay him in a timely manner[2] under either interpretation. Burke thus argues that he is entitled to recover exemplary damages[3] pursuant to section 626. In reviewing the motion court's determination that Port Resort did not violate section 626, we examine the evidence supporting the motion court's conclusion that Burke refused incremental payment of wages as they became wages earned.
[¶ 7] A party is entitled to a summary judgment if no genuine issue of material fact exists and if the party on the undisputed facts is entitled to a judgment as a matter of law. See Seashore Performing Arts Ctr., Inc. v. Town of Old Orchard Beach, 676 A.2d 482, 484 (Me.1996). We review the grant of a summary judgment for an error of law, viewing the evidence in the light most favorable *840 to the party against whom the judgment has been granted. See Key Trust Co. of Maine v. Nasson College, 1997 ME 145, ¶ 9, 697 A.2d 408, 409. In ruling on a motion for a summary judgment, "`the court is to consider only the portions of the record referred to, and the material facts set forth, in the Rule 7(d) statements.'" Handy Boat Serv., Inc. v. Professional Servs., Inc., 1998 ME 134, ¶ 16, 711 A.2d 1306 (Me.1998) (quoting Gerrity Co. v. Lake Arrowhead Corp., 609 A.2d 293, 295 (Me.1992)).
[¶ 8] Our review of the parties' respective statements of material fact reveals that a genuine issue of material fact exists as to whether Burke refused to accept Port Resort's incremental tender of wages pursuant to his employment agreement with Port Resort. Burke, in his statement of material facts, states that, as of March 11, 1997, Port Resort had not "paid or unconditionally tendered to Burke the amount of commissions admittedly owed to him." In contrast, Port Resort, in its statement of material facts, states that Burke, "through his attorney, refused to accept commissions to be paid in full the pay period following payment in full by the group." Port Resort also relates that Burke was offered, and refused, 1/12 of the cash value of his vacation time. Because the record reveals a material fact in dispute regarding whether Burke refused to accept a tender of wages by Port Resort, the motion court erred in entering a summary judgment. See Roy v. Buckley, 1997 ME 155, ¶ 9, 698 A.2d 497, 501 ("At the summary judgment stage of the proceeding, the court's task is not to decide any disputed factual questions, but to determine whether the record before the court generates a genuine issue of material fact.").
The entry is:
Judgment vacated. Remanded for proceedings consistent with this opinion.
NOTES
[1] After a hearing the parties stipulated to $8,911.24 in damages, which represented $8,680.76 in owed commissions and $230.48 for owed vacation time. This stipulation was incorporated into the judgment entered in favor of Burke. The parties expressly preserved their right to appeal the summary judgment, despite the stipulation as to damages.
[2] Section 626 provides:
An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer where payrolls are kept and wages are paid.... Whenever the terms of employment include provisions for paid vacations, vacation pay on cessation of employment has the same status as wages earned.
26 M.R.S.A. § 626 (Supp.1997). The statute defines "a reasonable time" as "the earlier of either the next day on which employees would regularly be paid or a day not more than 2 weeks after the day on which the demand is made." Id.
[3] If an employer fails to pay due wages within a reasonable time, the employer:
is liable for the amount of unpaid wages and, in addition, the judgment rendered in favor of the employee or employees must include a reasonable rate of interest, an additional amount equal to twice the amount of those wages as liquidated damages and costs of suit, including a reasonable attorney's fee.
26 M.R.S.A. § 626 (Supp.1997). Additionally, an employer who violates section 626 "is subject to a forfeiture of not less than $100 nor more than $500 for each violation." Id. § 626-A. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2400578/ | 434 S.W.2d 140 (1968)
Billy Ray MAYS, Appellant,
v.
The STATE of Texas, Appellee.
No. 41511.
Court of Criminal Appeals of Texas.
October 30, 1968.
Rehearing Denied December 11, 1968.
Vincent W. Perini, Dallas, for appellant.
Henry Wade, Dist. Atty., Charles Caperton, Arch Pardue, Malcolm Dade, Camille Elliott and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is robbery with firearms; the punishment, fifty years.
The indictment charged Andrew Harris and Billy Ray Jackson with robbing L. O. Anderton on or about February 14, 1967. Upon his having suggested that his true name was Billy Ray Mays, the court ordered that the indictment and all other papers in the case where the defendant's name appeared as Billy Ray Jackson be changed to Billy Ray Mays.
Trial was before a jury on a plea of not guilty.
*141 The state did not seek the death penalty and appellant elected to have the jury assess the punishment.
The sole ground of error set forth in appellant's brief filed in the trial court complains that the court erred in not granting a mistrial when the following occurred after the court, at appellant's request, had instructed counsel for the state to refrain from mentioning, referring to or alluding to, directly or indirectly, "facts and circumstances tending to connect said defendant with any other extraneous crimes other than the specific offense for which he stands charged in this cause."
On direct examination State's Witness Pat Albair, who had identified appellant and his co-defendant as the robbers, testified:
"Q. * * * Then did you later that same night, go down to the police department to a lineup?
"A. Yes.
"Q. All right. Was one of these Defendants in the lineup?
"A. Yes, he was.
"Q. All right. I'll ask you did you go down aboutwell, let's see. The next night then, to another lineup?
"A. Well, it was either the next night or I forget just exactly.
"Q. Was another one of the Defendants in that lineup?
"A. That's correct.
"Q. All right. I'll ask you then if you also came down here and testified at another time?
"A. That's true.
"Q. Did you see them then in the Courtroom at that time?
"Mr. REESE: I object to that.
"THE COURT: Sustain the objection.
"Q. Have you seen them then twice since you have seen them in your store the night they robbed you?
"A. I have.
"Q. Okay, * * *
"MR. REESE: Your Honor, in view of the testimony we ask that the court instruct the jury to disregard that.
"THE COURT: Disregard that testimony, Ladies and Gentlemen.
"MR. REESE: Your Honor, I appreciate your instructions, but in view of the highly prejudicial nature of the answer, we ask for a mistrial.
"THE COURT: Denied, proceed.
"MR. REESE: The same for Andrew Harris here.
"THE COURT: Denied."
As we view the record it does not sustain the contention that the questions above quoted were improper or were propounded in bad faith, or that the rulings and instructions given by the court were not sufficient to cure the error, if any, in the asking of the questions.
The fact that the witness who identified the defendants as the robbers recognized one or both of them subsequent to the robbery was admissible. Cline v. State, 150 Tex.Cr.R. 586, 204 S.W.2d 512.
It is well established law that the error in propounding improper questions or in admitting improper testimony may be generally cured by a withdrawal of such testimony and an instruction to disregard the same, except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. 5 Tex. *142 Jur.2d, Sec. 437; Harris v. State, Tex.Cr. App., 375 S.W.2d 310; Wheeler v. State, Tex.Cr.App., 413 S.W.2d 705.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2400628/ | 693 F. Supp. 2d 958 (2010)
SIERRA CLUB NORTH STAR CHAPTER, Plaintiff,
v.
Ray LaHOOD, Secretary of Transportation; Victor Mendez, Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis, Director of the National Park Service, Defendants, and
Minnesota Department of Transportation and Wisconsin Department of Transportation, Intervenors.
Civil No. 07-2593 (MJD/SRN).
United States District Court, D. Minnesota.
March 11, 2010.
*962 Brian B. O'Neill, Elizabeth H. Schmiesing, Michelle E. Weinberg, and Richard A. Duncan, Faegre & Benson, LLP; and Michael C. Soules, Environmental Law & Policy Center, for Plaintiff.
Friedrich A.P. Siekert, Assistant United States Attorney, for Defendants Ray LaHood, Secretary of Transportation; Victor Mendez[1], Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis[2], Director of the National Park Service.
Patrick Whiting, Minnesota Attorney General's Office, for Defendant Minnesota Department of Transportation.
Richard Briles Moriarty, Wisconsin Department of Justice, for Wisconsin Department of Transportation.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
I. INTRODUCTION
This matter is before the Court on Federal Defendants' Motion for Summary Judgment [Docket No. 70], Motion for Summary Judgment of Intervenor Wisconsin Department of Transportation [Docket No. 73], Plaintiff's Motion for Summary Judgment [Docket No. 78], and Intervenor State of Minnesota Department of Transportation's Motion for Summary Judgment [Docket No. 87]. The Court heard oral argument on September 14, 2009.
II. SUMMARY OF THE COURT'S OPINION
The Court concludes that the National Park Service's 2005 Section 7 Evaluation was arbitrary and capricious because the National Park Service ignored its contrary position in the 1996 Section 7 Evaluation. The 2005 Section 7 Evaluation is vacated.
In 1996, the National Park Service concluded that a "massive" proposed four-lane bridge connecting TH 36 and STH 64 across the Lower St. Croix approximately *963 one mile south of the Stillwater Lift Bridge would directly and adversely affect the Lower St. Croix's outstandingly remarkable scenic and recreational values with its "dramatic and disruptive" visual impact. This Section 7 Evaluation prevented federal authorization for the 1995 proposed bridge.
In 2005, the National Park Service performed a Section 7 Evaluation for a longer and taller proposed four-lane bridge connecting TH 36 and STH 64 across the Lower St. Croix approximately one mile south of the Stillwater Lift Bridge and again characterized the bridge's visual effect as "dramatic and disruptive." The National Park Service then inexplicably concluded that the new bridge would not directly and adversely affect the Lower St. Croix's outstandingly remarkable scenic and recreational values. In the 2005 Section 7 Evaluation, the National Park Service wholly failed to mention, let alone distinguish, the 1995 proposed bridge or the contrary 1996 Section 7 Evaluation.
While there are some differences between the two bridges, common sense provides that they are generally similarin purpose, location, and physical characteristics. The new proposed bridge includes minimization measures, which the National Park Service concluded could not reduce the visual impact of the proposed bridge to an acceptable level. It also includes a handful of new mitigation measures aimed at offsetting the bridge's visual impact. However, the National Park Service fails to explain how combining a group of apparently ineffective measures, all of which relate to shoreline actions, can create an effective mitigation package, when, in 1996, it concluded that no available mitigation measures could significantly reduce the negative visual impact of a similar bridge. In 1996, the National Park Service concluded that the visual impacts of shoreline development were simply "not comparable" to the visual impacts of the bridge. Yet, in 2005, the National Park Service abruptly changed course and concluded that visual mitigation based solely on shoreline actions, when combined with minimization measures, could adequately offset the bridge's negative visual impact.
In the 1996 Section 7 Evaluation, the National Park Service's main concern for visual impact was based on the massiveness of a bridge spanning the Lower St. Croix in that basic locationa concern it concluded could not be effectively mitigated or minimized. In the 2005 Section 7 Evaluation, the National Park Service failed to explain why that concern has evaporated.
A federal agency may reevaluate previous determinations and change its mind, but the agency must explain its reasons for changing its position. Because the 2005 Section 7 Evaluation completely omitted reference to the 1995 proposed bridge and the 1996 Section 7 Evaluation, the Court must conclude that the National Park Service gave no thought to its change in position. The National Park Service's failure to acknowledge its previous contrary position, let alone explain why, in its opinion, a change is justified, is the hallmark of an arbitrary and capricious decision.
III. BACKGROUND
A. Statutory Framework
1. National Environmental Policy Act ("NEPA")
The NEPA is a procedural statute that requires federal agencies to prepare a detailed environmental impact statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An agency's EIS should "[r]igorously explore and objectively evaluate all reasonable alternatives," but need only "briefly *964 discuss" the reasons why other alternatives were eliminated from more detailed study. 40 C.F.R. § 1502.14. Additionally, an EIS should identify the direct, indirect, and cumulative impacts of each alternative that is studied and consider mitigation measures to reduce any impacts on the environment. 40 C.F.R. §§ 1502.14, 1502.16, 1508.7.
"NEPA mandates that a federal agency take a hard look at the environmental consequences of a major federal action before taking that action." Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 533 (8th Cir. 2003) (citation and internal quotations omitted).
2. Section 4(f) of the Department of Transportation Act of 1966
Generally, under Section 4(f),
the Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance... only if
(1) there is no prudent and feasible alternative to using that land;
and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
49 U.S.C. § 303(c).
Federal Highway Administration ("FHWA") regulations require that, for projects subject to the section 4(f) requirement, the 4(f) evaluation shall document why there is no "feasible and prudent" alternative and the planning measures taken to "minimize harm" to the property resulting from the use. 49 C.F.R. § 266.19(b)(4). Additionally, a final EIS or Finding of No Significant Impact ("FONSI") should document compliance with applicable requirements, including section 4(f). 23 C.F.R. § 771.133.
3. Wild and Scenic Rivers Act ("WSRA")
The WSRA was enacted in 1968 to preserve the free-flowing condition of certain rivers. 16 U.S.C. § 1271. The WSRA created a national Wild and Scenic Rivers System and developed a process so that other rivers with "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values, shall be preserved in free-flowing condition." Id. The WSRA identifies the rivers in the System, sets forth a procedure by which additional rivers may be added, and provides guidance on how the designated rivers should be managed. 16 U.S.C. §§ 1271-87.
Under Section 10(a), the administering agency must manage each designated river segment "in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values." 16 U.S.C. § 1281(a).
The upper stretch of the St. Croix River was one of the rivers originally included in the Wild and Scenic River System. 16 U.S.C. § 1274(a)(6). The Lower St. Croix was later added. 16 U.S.C. § 1274(a)(9).
Under the WSRA, rivers are classified as "wild," "scenic," or "recreational." 16 U.S.C. § 1273(b). Recreational rivers are the most developed category and are "[t]hose rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past." § 1273(b)(3). The uppermost 10.3 miles of the Lower St. Croix are *965 scenic, while the downstream 42 miles of the Lower St. Croix, including the portion at issue here, are classified as recreational. (2005 Section 7 Evaluation, National Park Service Administrative Record ("NPS") 467.)
Section 7 of the WSRA provides that "no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration." 16 U.S.C. § 1278(a). Thus, Section 7 requires the National Park Service ("NPS") to evaluate whether a "water resources project ... would have a direct and adverse effect" on a river's values. When a water resources project is found to have a "direct and adverse effect" on a wild and scenic river, the project cannot be authorized or funded absent congressional intervention. Id.
4. Organic Act and General Authorities Act
The National Park Service Organic Act of 1916 ("Organic Act") established NPS and created its authority over the maintenance of national parks. 16 U.S.C. §§ 1-18f-3. The Organic Act provides that NPS must "regulate the use" of national parks by means that conform to their "fundamental purpose," namely:
to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
16 U.S.C. § 1.
Congress later passed an amendment to the Organic Act, known as the General Authorities Act, which provides:
The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.
16 U.S.C. § 1a-1. NPS has construed the "derogation" standard in the General Authorities Act as a reiteration of the non-impairment standard set forth in the Organic Actthat is, a duty to prohibit the impairment of the integrity of park resources and values. NPS Management Policies § 1.4.2 (2006); Record of Decision, 66 Fed.Reg. 56848, 56850 (Nov. 13, 2001).
Under NPS policy, NPS must "examine the duration, severity, and magnitude of the impact; the resources and values affected; and direct, indirect, and cumulative effects of the action." 66 Fed.Reg. 56848, 56850. "If there would be an impairment, the action may not be approved." NPS Management Policies § 1.4.7 (2006).
5. Comprehensive Management Plan
The WSRA requires governing agencies to develop comprehensive management plans ("CMPs") to provide for the protection of wild and scenic rivers' values:
For rivers designated on or after January 1, 1986, the Federal agency charged with the administration of each component of the National Wild and Scenic Rivers System shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values. The plan shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of this chapter. The plan shall be coordinated with and may be incorporated into resource management planning for affected adjacent Federal lands. The plan *966 shall be prepared, after consultation with State and local governments and the interested public within 3 full fiscal years after the date of designation. Notice of the completion and availability of such plans shall be published in the Federal Register.
16 U.S.C. § 1274(d)(1). "Management plans for any such component [of a wild and scenic river] may establish varying degrees of intensity for its protection and development, based on the special attributes of the area." 16 U.S.C. § 1281(a).
Minnesota, Wisconsin, and NPS entered into a new CMP for the Lower St. Croix in 2001. Record of Decision, 66 Fed.Reg. 56,848 (Nov. 13, 2001).
B. Factual Background
1. The Parties and the River
Plaintiff is the Sierra Club North Star Chapter ("Sierra Club"). The Federal Defendants are Ray LaHood, Secretary of Transportation; Victor Mendez, the Federal Highway Administrator; Ken Salazar, Secretary of the Interior; and Jonathan B. Jarvis, Director of the NPS. Intervenor-Defendants are the Minnesota Department of Transportation ("MnDOT") and the Wisconsin Department of Transportation ("WisDOT"). ("Defendants" shall collectively refer to the Federal Defendants and the Intervenor-Defendants.) This case relates to a proposed bridge that would cross the Lower St. Croix River near Oak Park Heights, Minnesota.
The Lower St. Croix runs along the Minnesota-Wisconsin border. The Lower St. Croix has many wildlife species, including federally-protected bald eagles and peregrine falcons. It contains one of the world's richest freshwater mussel communities and is home to forty species of mussels, including two federally-endangered species: the Higgins' eye pearlymussel and the winged mapleleaf mussel.
Currently, ten bridges traverse the St. Croix, including the Stillwater Lift Bridge ("Lift Bridge"), between Stillwater, Minnesota, and Houlton, Wisconsin. Sierra Club N. Star Chapter v. Pena, 1 F. Supp. 2d 971, 974 (D.Minn.1998). The Lift Bridge connects Minnesota Trunk Highway 36 ("TH 36") to Wisconsin State Trunk Highway 64 ("STH 64"). Id.
2. 1995 Bridge Proposal
FHWA, MnDOT, and WisDOT have long sought to construct a new bridge over the river. These efforts resulted in a final EIS in April 1995, and a record of that decision in July 1995. Sierra Club N. Star Chapter, 1 F.Supp.2d at 974.
The highway departments' preferred alternative was a four-lane bridge that would cross the river about one mile south of Stillwater, Minnesota ("1995 Proposal"). The total length of the bridge would be 6 miles; it would be 104 feet wide with a total height of 72 feet on the Minnesota side of the river and 128 feet on the Wisconsin side of the river; and 8 of the 25 bridge piers would be located in the riverbed. (Section 7(a) Evaluation; Wild and Scenic Rivers Act; Proposed New St. Croix River Crossing ("1996 Section 7 Evaluation"), NPS 386-87.)
Because the 1995 Proposal would have required extensive dredge and fill, the Clean Water Act required the transportation agencies to obtain a "dredge and fill" permit from the Corps of Engineers. 33 U.S.C. § 1344; Sierra Club N. Star Chapter, 1 F.Supp.2d at 975.
In June 1996, the Sierra Club and another conservation group filed suit to enjoin construction of the project. Among other claims, Sierra Club alleged that the Department of the Interior failed to discharge its obligation under the WSRA to analyze whether the 1995 Proposal satisfied the standards of Section 7 of the *967 WSRA. Sierra Club N. Star Chapter, 1 F.Supp.2d at 975.
After Sierra Club filed suit, NPS conducted the necessary Section 7 evaluation on the 1995 Proposal. FHWA suspended its authorization of the 1995 Proposal pending the outcome of the Section 7 process. Id.
On December 27, 1996, NPS issued its WSRA Section 7 evaluation, which concluded that the 1995 Proposal would have a direct and adverse impact on the Lower St. Croix's scenic and recreational values. (See 1996 Section 7 Evaluation.) The evaluation particularly criticized the potential visual impact of the proposed bridge. (NPS 435-36.) In particular, NPS found, "Placing a massive bridge where there previously was not one results in a fundamental change in the scenic qualities that existed in this portion of the Riverway at the time of designation." (NPS 435.) It opined, "The severity and magnitude of the visual impacts related to the proposed project are so great that they cannot be significantly reduced by the available mitigation measures." (NPS 436.) NPS also concluded that the 1995 Proposal would negatively affect the Lower St. Croix's recreational values and its mussel populations, which "should be protected to the same extent as the outstandingly remarkable scenic and recreational values." (NPS 410.)
After the Section 7 evaluation was released, the federal government withdrew its authorization and financial support for the 1995 Proposal. In an effort to save the project, MnDOT and WisDOT ("state DOTs") intervened in Sierra Club's lawsuit and directly challenged the Section 7 evaluation.
On April 13, 1998, the Court rejected the state DOTs' claims and upheld the NPS determination. Pena, 1 F.Supp.2d at 983.
3. Current Bridge Proposal
After the 1998 court decision, FHWA and the state DOTs began working to revive the project. During the process, FHWA and the state DOTs consulted a Stakeholders Group, which included Sierra Club. (FHWA 4094.) The Stakeholders Group was permitted to comment on the process but did not have decision-making authority. (Id.) In March 2004, FHWA and the state DOTs issued an Amended Final Scoping Decision Document identifying five build alternatives and one no-build alternative for the project. (FHWA 2906.) The alternatives were:
Alternative A, which involved renovating the existing Stillwater Lift Bridge and using a combination of transportation techniques, including mass transit and attempting to redirect more traffic to the I-94 river crossing. (FHWA 2923.)
Alternative B, which was the 1995 Proposal. This proposal included construction of a four-lane highway bridge with a bicycle/pedestrian trail approximately a mile south of the Lift Bridge. (FHWA 2923.)
Alternative B-1, which eventually became the Proposed Bridge, included construction of a four-lane highway bridge slightly south of the 1995 Proposal. (FHWA 2924, 9023.) (A number of other variations on Alternatives B were also studied, including the option to convert the Lift Bridge into a pedestrian and bicycle bridge, the option to retain the Lift Bridge for limited vehicle use by banning large trucks, and the option to install park-and-ride facilities in Wisconsin and Minnesota. (FHWA 2924.))
Alternative C, which included construction of a four-lane highway bridge three-quarters of a mile south of the Lift Bridge. (FHWA 2924.)
*968 Alternative D, which called for construction of a four-lane bridge less than half a mile south of the Lift Bridge on the Minnesota side and 160 feet south on the Wisconsin side. (FHWA 2925.)
Alternative E, which included construction of a two-lane bridge less than half a mile south of the Lift Bridge on the Minnesota side and 200 feet south of the Lift Bridge on the Wisconsin side. The new bridge would handle eastbound traffic and the converted Lift Bridge would handle westbound traffic. (FHWA 2926.)
In August 2004, FHWA and the state DOTs issued a supplemental draft EIS ("SDEIS"). (FHWA 4019 et seq.) Alternative A, the transit option, was not studied because it did not meet the need and purpose of the project because it would not alleviate congestion, would shift congestion to I-94, and would not address reliability problems associated with the Lift Bridge. (FHWA AR 2966-67.) Also, Alternative B was eliminated from further study because of the 1996 Section 7 Evaluation determination that it would have direct and adverse effects on the outstandingly remarkable values of the Lower St. Croix. (Id. 2967.) Alternative B-1, with a different alignment, was instead considered. (Id.)
Alternative B-1 contained two sub-alternatives: Alternative B-1a proposed closing the Lift Bridge to vehicular traffic and converting it into a non-motorized pathway, while Alternative B-1b would leave the Lift Bridge open to local traffic. (FHWA 4132.)
In October 2005, NPS issued a draft Section 7 evaluation of the project. (Draft Section 7(a) Evaluation; Wild and Scenic Rivers Act; St. Croix River Crossing Project (October 2005) ("2005 Section 7 Evaluation"), NPS 462 et seq.) The 2005 Section 7 Evaluation studied the impact of Alternative B-1a on the Riverway. (Id. at 468-78.) NPS admitted that Alternative B-1a would have a direct adverse effect on the scenic and recreational values of the Lower St. Croix. (NPS 517-18.) However, NPS concluded that, given the proposed mitigation package, the Proposed Bridge's adverse effect on the scenic and recreational values of the Lower St. Croix would be adequately offset. (Id.) The 2005 Section 7 Evaluation did not mention the 1996 Section 7 Evaluation.
In June 2006, when the transportation agencies released the Supplemental Final EIS ("SFEIS"), they chose Alternative B-1a as the Preferred Alternative. (FHWA 7791-92.) This proposal ("Proposed Bridge") became the Selected Alternative when FHWA issued its November 2006 Record of Decision ("ROD"). (FHWA 9023.)
The Proposed Bridge would be located between TH 36 in Stillwater and Oak Park Heights, Minnesota, and STH 64 in St. Joseph, Wisconsin. (NPS 464.)
C. Procedural Background
On June 5, 2007, Sierra Club filed a Complaint against Defendants in this Court. The Complaint alleges
Count I, Violations of WSRA and the [Administrative Procedure Act] ["]APA["] by NPS and FHWA based on the claim that the Proposed Bridge project creates a new transportation corridor without restoring the existing corridor to natural conditions in violation of the CMP;
Count II, Violations of the WSRA and the APA against NPS based on the claim that NPS's 2005 Section 7 Evaluation wrongly concluded that the Proposed Bridge project would not have a direct and adverse effect on the Lower St. Croix's scenic, recreational, wildlife, and other natural values;
Count III, Violations of the WSRA and the APA by NPS, in the alternative to *969 Count II, based on the claim that if NPS's 2005 Section 7 Evaluation was not final agency action, NPS's failure to issue a Section 7 determination represents "agency action unlawfully withheld or unreasonably delayed;"
Count IV, Violations of the WSRA, Organic Act, General Authorities Act, and the APA by NPS based on the claim that NPS's approval of the Proposed Bridge is contrary to the non-degradation and nonimpairment policies promulgated under those statutes;
Count V, Violations of the WSRA and the APA by NPS based on the claim that NPS's grant of a new right-of-way for the Proposed Bridge does not protect the qualities for which the Lower St. Croix was designated a wild and scenic river;
Count VI, Violations of the Transportation Act and the APA by FHWA, based on the claim that FHWA violated Section 4(f) of the Transportation Act by approving the Proposed Bridge without adequately considering alternatives that could have avoided use of the Lower St. Croix Riverway and approving a project that does not minimize harm to the Riverway; and
Count VII, Violations of NEPA and the APA by FHWA based on the claim that FHWA violated the NEPA due to inadequacies in the EISs and ROD.
Defendants moved to dismiss this case based on lack of subject matter jurisdiction because 1) as to the claims against FHWA, Plaintiff failed to file its Complaint within the statutory 180-day limitations period; and 2) as to claims against NPS, the Complaint does not challenge a final agency action. On May 15, 2008, the Court granted in part and denied in part the motion to dismiss. Sierra Club North Star Chapter v. Peters, Civil No. 07-2593 (MJD/SRN), 2008 WL 2152199 (D.Minn. May 15, 2008). The Court dismissed Count III, but permitted the other Counts to remain.
On July 8, 2008, Magistrate Judge Nelson issued an Order, based on the parties' stipulation, permitting MnDOT and WisDOT to intervene as Defendants in this matter. [Docket No. 38]
Currently before the Court are motions for summary judgment by all parties.
IV. DISCUSSION
A. Summary Judgment Standard
1. General Summary Judgment Standard
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. 2548. Summary judgment is only appropriate when "there is no dispute of fact and where there exists only one conclusion." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citation omitted).
2. APA Standard
Sierra Club's claims are all brought pursuant to the APA. Under the APA, a court will set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational *970 connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983) (citation and internal quotations omitted). Generally, an agency's action is arbitrary and capricious if it
has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given.
Id. (citation and internal quotations omitted). Also, a decision is arbitrary and capricious if the agency "fail[s] to apply the relevant statutory authority in making its decision." Sokol v. Kennedy, 210 F.3d 876, 878 (8th Cir.2000).
B. Whether NPS's 2005 Section 7 Evaluation Is Arbitrary and Capricious
Sierra Club claims that the 2005 Section 7 Evaluation was unlawful for six main reasons: 1) by approving construction of the Proposed Bridge, NPS arbitrarily reversed its earlier position on the 1995 Proposal without explanation; 2) in the alternative, even if NPS did not arbitrarily reverse its position, NPS's mitigation conclusions are counter to the evidence in the record; 3) NPS failed to consider the Proposed Bridge's impact on the mussel communities; 4) NPS's authorization of the project violated the Lower St. Croix CMP; 5) NPS failed to apply the "protect and enhance" requirement of Section 10(a) of the WSRA; and 6) NPS failed to consider whether the Proposed Bridge would violate the non-impairment requirement of the Organic Act and General Authorities Act.
1. Whether the 2005 Section 7 Evaluation Is Judicially Reviewable
The Court rejects defense claims that the Section 7 Evaluation is not judicially reviewable. As previously noted, under the APA, a court may set aside an agency action if that action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). However, APA review does not apply when "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). This "very narrow exception" applies when "statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971) (citation omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).
"[T]here is a strong presumption that Congress intends judicial review of administrative action." Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir.1996) (citation omitted). There must be "clear and convincing evidence of Congress's intent to preclude judicial review." Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 354 (8th Cir.1984) (citation omitted).
In this case, the Section 7 Evaluation is subject to APA review. The relevant statutory test sets forth the applicable standard: NPS must decide whether a water resources project, such as the Proposed Bridge, "would have a direct and adverse effect on the values for which [the wild and scenic] river was established." 16 U.S.C. § 1278(a). In this case, NPS is required to consider whether the Proposed Bridge would have a direct and adverse effect on the Riverway's scenic, recreational, and *971 geologic values. (See NPS 4, 14.) This statutory requirement provides a meaningful standard of review. Cf. Sokol v. Kennedy, 210 F.3d 876, 879 (8th Cir.2000) (rejecting "the defendants' contention that the Wild and Scenic Rivers Act provided no meaningful standard for the selection of detailed boundaries," because Section 1281(a) "clearly set out" a duty to "identify and seek to protect" the river's outstandingly remarkable values). See also Sierra Club North Star Chapter v. Pena, 1 F.Supp.2d at 981-83 (reviewing 1996 Section 7 Evaluation under APA).
2. Significance of the Lower St. Croix's State-Administered Designation
The parties assert various arguments regarding the Section 7 Evaluation that depend upon whether the portion of the Lower St. Croix at issue in this lawsuit the lower section of the Lower St. Croix is considered to be state-administered. Sierra Club argues that the relevant section of the Lower St Croix is not strictly a state-administered river. The Court disagrees. Therefore, the Court begins its discussion with an explanation of why the relevant section of the Lower St. Croix is a state-administered river under the WSRA.
a. Designation Process for the Lower St. Croix
A river can be added to the Wild and Scenic Rivers System in one of two ways: through an Act of Congress or through a state application for WSRA designation, approved by the Secretary of the Interior. 16 U.S.C. § 1273(a)(i), (ii). Rivers designated under the second provision, which must be administered by the state "without expense to the United States other than for administration and management of federally owned lands," are referred to as state-administered rivers. Id. § 1273(a).
The Lower St. Croix River Act of 1972 designated the upper stretch of the Lower St. Croix as a wild and scenic river, to be administered by the Secretary of the Interior. (Pub.L. 92-560, NPS 71.) The Act further authorized designation of the lower stretch upon application by the Governors of Minnesota and Wisconsin. (Id.) It further provided that the Secretary of Interior was to jointly act with the states to create a development plan that "shall provide for State administration of the lower twenty-five miles of the Lower St. Croix River segment." (Id.) In 1976, upon application by the Governors of Minnesota and Wisconsin, the Secretary of the Interior approved the lower stretch of the Lower St. Croix for inclusion "in the National Wild and Scenic Rivers System as a State Administered Area of the National Scenic Riverway." 41 Fed.Reg. 26236 (June 25, 1976). This lower segment, which begins at the northern limits of the City of Stillwater and stretches south to Prescott, Wisconsin, was "designated a State administered recreational river area in the National Wild and Scenic Rivers System." Id.
Both the existing Lift Bridge and the Proposed Bridge are within the state-administered portion of the Wild and Scenic Rivers System because the Governors of Minnesota and Wisconsin applied for and received that designation for the lower 25 miles of the St. Croix under 16 U.S.C. § 1273(a)(11). See 16 U.S.C. § 1274(a)(9). Therefore, the portion of the Lower St. Croix at issue here is "permanently administered" by "an agency or political subdivision of the State or States concerned." 16 U.S.C. §§ 1273(a)(ii), 1274(a)(9). See FitzGerald v. Harris, 549 F.3d 46, 48-49 (1st Cir.2008) ("State-administered rivers are those rivers designated after a state applies to the federal Secretary of the Interior under section 2(a)(ii). Federally-administered rivers are those established by Congress under section 2(a)(i).... A single river may have zones that are state-administered *972 and others that are federally-administered. E.g., id. § 1274(a)(9) (designating a section of the Lower St. Croix River as federally-administered and providing that the governors of Wisconsin and Minnesota may apply to have another segment designated as state-administered)."); Kiernat v. Chisago County, 564 F. Supp. 1089, 1091 (D.Minn.1983) ("An additional 25 mile segment [of the Lower St. Croix River] immediately south of this federal segment was to be included upon application of the states of Wisconsin and Minnesota and jointly administered by those states."); State v. St. Croix County, 266 Wis. 2d 498, 668 N.W.2d 743, 745 (Wis.Ct. App.2003) ("The lower 25-mile segment [of the Lower St. Croix] is to be administered by the states of Minnesota and Wisconsin and is referred to as the `state zone.'").
Sierra Club argues that, despite the clear statutory language, the lower stretch of the Lower St. Croix is not state-administered based on NPS's joint management responsibility under the CMP and the federal government's expenditure of resources to manage this portion of the river. Sierra Club asserts that NPS shares management responsibility with the states over the 25-mile state-administered zone.
NPS's participation in cooperative management under the CMP does not change the state-administered designation of the lower portion of the Lower St. Croix. The WSRA explicitly provides that NPS shall cooperate with and assist states in managing their rivers, whether or not the rivers are state- or federally-administered:
The Secretary of the Interior ... shall assist, advise, and cooperate with States... to plan, protect, and manage river resources. Such assistance, advice, and cooperation may be through written agreements or otherwise. This authority applies within or outside a federally administered area and applies to rivers which are components of the National Wild and Scenic Rivers System and to other rivers. Any agreement under this subsection may include provisions for limited financial or other assistance to encourage participation in the acquisition, protection, and management of river resources.
16 U.S.C. § 1282(b)(1).
It is true that, as Sierra Club points out, the 2001 ROD regarding the CMP provides that "[t]he states and the federal government jointly conduct planning for the riverway." 66 Fed.Reg. 56848, 56848-89 (Nov. 13, 2001). However, the ROD also provides that "[t]he states of Minnesota and Wisconsin administer the lower 25 miles." Id. The ROD reflects that the federal government and the Minnesota and Wisconsin governments cooperate regarding the management of the entire lower St. Croix Riverway, which consists of both federally- and state-administered segments. In any case, the proclamations in the ROD have effect only to the extent that they are consistent with applicable statutory language.
b. Effect of the State-Designation on NPS's Section 7 Duty
WisDOT argues that the Court should defer to the states' joint decision on how best to administer the state-administered recreational portion of the wild and scenic river at issue here. Regardless of the WSRA's deference to state decisions regarding state-administered rivers, NPS has the same duty to comply with Section 7 when a water resources project is at issue. Here, Sierra Club is challenging NPS action, not state action. Cf. FitzGerald v. Harris, 549 F.3d 46, 56, 57 n. 5 (1st Cir.2008) (discussing deference to state action regarding state-administered Wild and Scenic River but not addressing level of scrutiny for review of federal agency decisions because plaintiff "could have *973 challenged the [Army Corps of Engineers] ACE permit under the APA but did not").
3. Whether NPS Arbitrarily Reversed Its Position in the 2005 Section 7 Evaluation
Sierra Club argues that NPS has reversed its policy regarding the permissibility of a four-lane bridge, approximately one mile south of the Lift Bridge over the lower portion of the Lower St. Croix. In the 1996 Section 7 Evaluation, NPS concluded that the 1995 Proposal would directly and adversely affect the Lower St. Croix's outstandingly remarkable scenic and recreational values and that no available mitigation package could adequately offset the negative effect. Sierra Club argues that in 2005, with no explanation for its reversal in position, NPS concluded that the substantially similar Proposed Bridge would not directly and adversely affect the scenic or recreational values.
Defendants retort that the 1996 Section 7 Evaluation was not a general rule or policy regarding bridges across the lower portion of the Lower St. Croix, but was, instead, a narrow, fact-specific evaluation of the 1995 Proposal, which is factually distinguishable from the current Proposed Bridge.
While the 1995 Proposal and the Proposed Bridge are substantially similar i.e., two large, four-lane bridges connecting TH 36 and STH 64 across the Lower St. Croix approximately one mile south of the Lift Bridgethere are some differences between the projects. And, undoubtedly, federal agencies generally have discretion to change their positions on issues. However, because the 2005 Section 7 Evaluation completely omitted reference to the 1995 Proposal and the 1996 Section 7 Evaluation, the Court must conclude that NPS gave no thought to its change in position. A failure to acknowledge NPS's previous position, let alone explain why, in NPS's opinion, a change is justified, is the hallmark of an arbitrary and capricious decision.
a. Applicable Standard of Review
"[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance." State Farm, 463 U.S. at 42, 103 S. Ct. 2856. "An agency's view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored...." Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (footnotes omitted), quoted in State Farm, 463 U.S. at 57, 103 S. Ct. 2856.
The requirement that an agency explain a change in position is not only applicable to rescission of rules. See, e.g., N. Y. Pub. Interest Research Group, Inc. v. Johnson, 427 F.3d 172, 182-83 (2d Cir. 2005) (requiring that EPA provide a "reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored" when it reversed its policy position regarding circumstances in which an operating permit should be issued); Springfield, Inc. v. Buckles, 292 F.3d 813, 819-20 (D.C.Cir. 2002) (applying State Farm "reasoned analysis" standard to review Bureau of Alcohol, Tobacco and Firearms decision to reverse its policy that "a rifle's ability to accept a large, military-style magazine did not automatically disqualify it for importation" and, therefore, revoke import permits for firearms it had allowed in the past).
Put another way, "when an agency treats two similar transactions differently, an explanation for the agency's actions *974 must be forthcoming." Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d 1408,-1418 (4th Cir.1985), cited with approval in Duncan Energy Co. v. U.S. Forest Serv., 50 F.3d 584, 591 (8th Cir.1995). "Patently inconsistent application of agency standards to similar situations lacks rationality and is arbitrary." Contractors Transp. Corp. v. United States, 537 F.2d 1160, 1162 (4th Cir.1976) (citation omitted). See also id. ("[T]he grounds for an agency's disparate treatment of similarly situated applicants must be reasonably discernible from its report and order.") (citations omitted).
The Supreme Court has "frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner." State Farm, 463 U.S. at 48, 103 S. Ct. 2856. Therefore, NPS could not simply ignore its prior policy in issuing the 2005 Section 7 Evaluation. Although it did not need to provide better or stronger reasons for its new position than for its 1996 position, it was required to acknowledge its previous position and provide a reasoned explanation for its change:
To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio.... And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it mustwhen, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.
F.C.C. v. Fox Television Stations, Inc., ___ U.S. ___, 129 S. Ct. 1800, 1811, 173 L. Ed. 2d 738 (2009) (citations omitted).
The Court reiterates that NPS was not bound by its 1996 Section 7 Evaluation when it evaluated the Proposed Bridge. NPS clearly has the power to reevaluate its prior determination. See, e.g., High Country Resources v. FERC, 255 F.3d 741, 748 (9th Cir.2001) (holding that Forest Service had discretion to reevaluate its 1986 Section 7 decision regarding hydroelectric projects on the Skagit River because res judicata did not apply and "the existence of new information gave the Forest Service good reason to reevaluate the 1986 determination"). But, the agency must explain its reasons for changing its policy; the Court cannot provide that basis during APA review: The Court may not accept "counsel's post hoc rationalizations for agency action. It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." State Farm, 463 U.S. at 50, 103 S. Ct. 2856 (citations omitted).
b. Whether the Proposed Bridge and the 1995 Proposal Are Substantially Similar
i. Introduction
Defendants argue that the 1996 and 2005 Section 7 Evaluations addressed *975 wholly different projects; therefore, NPS's conclusion that the 1995 Proposal did have a direct and adverse effect on the Lower St. Croix's outstandingly remarkable values is not in conflict with its conclusion in the 2005 Section 7 Evaluation. Defendants claim that the Proposed Bridge incorporates various new minimization and mitigation measures, which are adequate to offset the adverse effect on scenic and recreational values.
In the 2005 Section 7 Evaluation, NPS concluded that "the preferred crossing, when taken along with its mitigation package would not have a direct and adverse effect on the scenic and recreational values for which the Riverway was included in the System." (NPS 518.)
In its 1996 Section 7 Evaluation, NPS found that construction of the 1995 Proposal would have a direct and adverse effect on the scenic and recreational values of the Lower St. Croix National Scenic Riverway, which could not be adequately mitigated. (NPS 436, 440.) The main basis for finding a negative impact on the recreational value was that the 1995 Proposal would "negatively impact recreationists['] enjoyment of the natural and history scene." (NPS 440.) It is NPS's conflicting analyses of the scenic impact in the 1996 and 2005 Section 7 Evaluations that are at the heart Sierra Club's claim of arbitrariness.
Sierra Club asserts that the 1995 Proposal is identical to the Proposed Bridge in all relevant respects. Therefore, Sierra Club concludes that NPS's 2005 Section 7 Evaluation conclusionthat construction of a similar large bridge over the Lower St. Croix would not have a direct and adverse effect on the Riverway's scenic value with sufficient mitigationwritten with no explanation for the reversal or citation to the 1996 Evaluation, was an arbitrary and capricious reversal in policy. Sierra Club asserts that NPS was required and failedto supply a reasoned analysis for its change in policy.
ii. Comparison of the Two Bridges
The Proposed Bridge and the 1995 Proposal both call for a four-lane highway bridge to be built on nearly the same location and rise more than 100 feet above the Lower St. Croix with widths of more than 100 feet. (NPS 386-87, 469.) The 1995 Proposal would be located approximately 1 mile downstream of the Lift Bridge. (NPS 386.) The Proposed Bridge would be located 7,550 feet south of the Lift Bridge on the Minnesota shoreline and 6,450 feet south of the Lift Bridge on the Wisconsin shoreline. (NPS 468.) Thus, although the locations are slightly different, they are close by one another.
The Proposed Bridge is longer and taller than the 1995 Proposal. The Proposed Bridge is approximately 1,000 feet longer than the 1995 Proposal: 3,930 feet for the 1995 Proposal versus 4,953 feet for the Proposed Bridge, including 2,840 feet over the river. (NPS 386, 469.) The height of the 1995 Proposal, not including lighting, would be 128 feet, while the deck height of the Proposed Bridge would be 159 feet, not including the 70-foot high towers. (NPS 387, 469; FHWA 7871.) However, the Proposed Bridge does have a perpendicular alignment, versus the more diagonal alignment of the 1995 Proposal. (NPS 1586.) Defendants also note that the portion of the Proposed Bridge over the river is minimally shorter that the portion of the 1995 Proposal over the river.
Defendants argue that an important difference is that the 1995 Proposal required 8 of the 25 piers to be placed in the riverbed, while the Proposed Bridge calls for only 4 to 6 piers in the riverbed. (NPS 387, 481.) NPS concluded that the impact on the free-flowing character of the river would be "minor" with the 1995 Proposal *976 and "negligible" with the Proposed Bridge. (NPS 392, 483.)
The 1996 Section 7 Evaluation's determination of a direct and adverse impact on scenic value was not based on individual components of the 1995 Proposalsuch as the number of piers, but, rather, was based on the overall impact of a "massive bridge" with a "dramatic and disruptive" visual impact based on many factors, including its "length and height" and both vertical and horizontal visual impact. (NPS 435-36.) Similarly, in the 2005 Section 7 Evaluation, NPS characterized the Proposed Bridge as "highly disruptive;" concluded that "[t]he length, height, mass and position of the bridge (crossing the river) would make it more visually intrusive to river and riverbank users than other developments in the affected area;" stated that the bridge's horizontal visual impact would be "dramatic and disruptive to the view;" and concluded that the project "would dramatically change and adversely affect the visual character of the river." (NPS 503-04.) In both evaluations, NPS concluded that placing a "bridge where there previously was not one results in a fundamental change in the scenic qualities that existed in this portion of the Riverway at the time of designation." (NPS 435, 503.) Although both evaluations cited the particularly negative visual impact created by the respective bridges' heights, lengths, location, and both horizontal and vertical impacts, and the Proposed Bridge is both taller and longer than the 1995 Proposal and is located in almost the same location, NPS made no attempt to distinguish the massive Proposed Bridge from the massive 1995 Proposal.
iii. Minimization Measures
Defendants retort that the minimization and mitigation measures in the Proposed Bridge differentiate it from the 1995 Proposal, although this point was not made anywhere in the 2005 Section 7 Evaluation.
In the 1996 Section 7 Evaluation, NPS concluded that there was no opportunity to reduce the negative visual impact through "location, site and layout." (NPS 434.) It further stated that no use of color, materials, or planting would be effective in lessening the visual impact. (NPS 435.)
In the 2005 Section 7 Evaluation, NPS concluded that the mostly perpendicular alignment of the Proposed Bridge minimized bridge length and bluff view impacts, and the extradosed bridge design would reduce apparent mass by minimizing the number of piers set in the river and the height. (NPS 504.) NPS admitted that "the use of color as a minimization method [would be] difficult to apply." (NPS 505.) It vaguely mentioned that "[o]ther strategies that may be effective in minimizing visual impacts would be to use treatments on the piers and abutments to provide an obvious connection to the historic materials found in structures in nearby downtown Stillwater and the natural materials that make up the river bluffs." (Id.) But those "treatments are being developed." (Id.)
Combining all minimization techniques, NPS concluded,
These strategies minimize the impact of the proposed bridge to the extent possible. However, the construction of a bridge of this size would introduce a massive constructed feature that fundamentally alters the scenic qualities of this segment of the Riverway. Minimization strategies alone cannot reduce the impact of the proposed bridge on the scenic values of the Riverway to an acceptable level.
(NPS 505.) It concluded that, by combining minimization and mitigation measures, the negative impact could be appropriately reduced. (Id.)
*977 iv. Mitigation Measures
Defendants further argue that the Proposed Bridge includes new mitigation items, such as the removal of a shoreline barge facility and industrial building, removal of the Buckhorn sign, bluffland purchases and restoration, and the conversion of the Lift Bridge to pedestrian and bike traffic. (NPS 505-08.) The 2005 Evaluation only identifies a handful of mitigation measures within the viewshed that would directly offset the visual impacts of the Proposed Bridge: removal of the Xcel barge facility, the Buckhorn sign, and the Terra Terminal Building, and bluffland restoration. (NPS 506.) NPS acknowledged the limited effect of removing the Xcel Energy barge facility because its structures "are lower in height and positioned parallel to the Minnesota riverbank" and "do not obstruct views to [the] same degree as would the [Proposed Bridge]." (NPS 508.) Removing the Buckhorn sign "provides very little in the way of restoring scenic values" because its visibility "is very limited due to its position and vegetation cover." (Id.) NPS did conclude that removal of the Terra Terminal Building would be positive because it is visible for long distances, but also noted that the mitigation would only be effective if the City of Stillwater allowed the site's shoreline to be naturalized. (Id.) NPS noted that purchase of blufflands "would not have the same scenic or wildlife value as that impacted by the [Proposed Bridge]." (Id.) Finally, while other mitigation measures, such as the removal of vehicular traffic from the Lift Bridge and the increased recreational facilities have a positive impact on the noise levels and recreational values of the Lower St. Croix, they do not mitigate the visual impact of the Proposed Bridge.
In the 2005 Section 7 Evaluation, NPS concluded that although "[t]here is no one mitigation measure that completely offsets the impact" to scenic resources, "the mitigation package minimizes the impact to the Riverway by using the extrados bridge type, removes a number of existing visual intrusions to restore scenic values, and provides means to help prevent future visual impacts." (NPS 517.) NPS failed to explain how combining this group of apparently ineffective measures can create an effective mitigation package, when, in 1996, NPS concluded that no available mitigation measures could significantly reduce the negative visual impact of a similar bridge.
All of the proposed visual mitigation measures in the 2005 Section 7 Evaluation relate to shoreland actions. In the 1996 Section 7 Evaluation, NPS concluded that "[t]he visual impacts of the existing shoreline development, which interrupts the vegetative cover, is not comparable to visual impacts which would occur if the [1995] proposed bridge is constructed. A bridge cutting across the river is fundamentally different in terms of its visual impacts than the impacts of shore and bank development." (NPS 436.) It followed that adequate mitigation cannot be achieved through restoration action on the shoreline. (See NPS 436 ("The severity and magnitude of the visual impacts related to the proposed project are so great that they cannot be significantly reduced by the available mitigation measures.").)
In the 2005 Section 7 Evaluation, NPS similarly concluded, "The length, height, mass and position of the bridge (crossing the river) would make it more visually intrusive to river and riverbank users than other developments in the affected area. A bridge cutting across the river is fundamentally different in terms of its visual impacts than the impacts of shore and bank development." (NPS 503-04.) As NPS had stated in the 1996 Section 7 Evaluation, in the new evaluation it noted *978 that "[t]he placement of a visual obstruction horizontally across the river makes the visual impact far more dramatic and disruptive to the viewer." (NPS 436, 504.)
Despite proclaiming the same concern that the bridge's visual impact was simply not in the same category as the visual impact of shoreline development, NPS abruptly changed course in the 2005 Section 7 Evaluation and concluded that visual mitigation based on shoreline actions, when combined with minimization measures, adequately offset the bridge's negative visual impact.
v. Conclusion
In this litigation, Defendants attempt to distinguish the 1995 Proposal from the current Proposed Bridge. They argue that, while the Proposed Bridge is longer and taller than the 1995 Proposal, it has a less serious visual impact due to the extradosed design, altered alignment and location, and fewer riverbed piers. They point to new mitigation measures included in the newer plan. While there are, indeed, differences between the two bridges, common sense provides that they are generally similar in purpose, location, and physical characteristics. In the 1996 Section 7 Evaluation, NPS's main concern for visual impact was based on the massiveness of a bridge spanning the Lower St. Croix in that basic locationa concern it concluded could not be effectively mitigated or minimized. In the 2005 Section 7 Evaluation, NPS failed to explain why that concern has evaporated.
The Court is not concluding that NPS's attempt to distinguish the two bridges was inadequate; rather, the Court concludes that NPS wholly failed to mention, let alone distinguish, the 1995 Proposal and 1996 Section 7 Evaluation in the 2005 Section 7 Evaluation.
Because NPS failed to acknowledge the 1996 Section 7 Evaluation in its 2005 Section 7 Evaluation, Defendants cannot demonstrate that the "prior policies and standards are being deliberately changed, not casually ignored." Greater Boston Television Corp., 444 F.2d at 852. NPS's attempts to explain its current position, as set forth in this litigation, cannot correct this fundamental flaw in the 2005 Section 7 Evaluation, because the Court may not accept "counsel's post hoc rationalizations for agency action. It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." State Farm, 463 U.S. at 50, 103 S. Ct. 2856 (citations omitted).
4. NPS's Consideration of Mussels
Sierra Club asserts that, irrespective of NPS's reversal of its previous policy, the 2005 Section 7 Evaluation is arbitrary and capricious because it fails to assess the impact of the Proposed Bridge on the Lower St. Croix's mussel population. The 2005 Section 7 Evaluation does not evaluate the effect of the Proposed Bridge on any of the Lower St. Croix's mussel communities. It merely mentions potential adverse effects on mussels in passing. (NPS 487-88.)
In the 1996 Section 7 Evaluation, NPS professed its belief that the river's mussel populations "should be protected to the same extent as the outstandingly remarkable scenic and recreational values." (NPS 410.) NPS concluded that the 1995 Proposal would "negatively impact native mussels," and "has the very real potential of irreversibly altering the world class mussel community of the St. Croix River as a whole due to habitat fragmentation and the threat of zebra mussel infestations." (NPS 420-21.)
The Lower St. Croix was added to the Wild and Scenic System based on its outstanding scenic, recreational, and geological values, not its mussel populationor any of its fish and wildlife population. (NPS 378, 466.) Therefore, NPS had no *979 obligation under the WSRA to evaluate the Proposed Bridge's effects on the mussel population. The fact that NPS discussed mussels in the 1996 Section 7 Evaluation does not change NPS's legal obligation under Section 7.
However, NPS's complete about-face in policyfrom stating that the mussels should be protected to the same extent as the river's outstandingly remarkable values and including an in-depth chapter devoted to the mussels to, in 2005, only mentioning the negative effect on the mussels in passing represents an abrupt change in position with no explanation whatsoever. This further highlights NPS's failure to acknowledge that its 2005 Section 7 Evaluation represented a 180-degree change in position from its 1996 Section 7 Evaluation. NPS's reasons for its current decision do not need to be any more convincing than its reasons for its 1996 decision. However, NPS may not simply ignore the 1996 Section 7 Evaluation.
5. Whether NPS's Authorization of the Proposed Bridge Violated the Lower St. Croix's Cooperative Management Plan
a. Introduction
Pursuant to the WSRA's requirement for development of a CMP, the Cooperative Management Plan for the Lower St. Croix was adopted in 2001. 66 Fed.Reg. 56,848 (Nov. 13, 2001). "The purpose of this plan is to describe the direction the managing agencies intend to follow in managing the lower riverway for the next 15 to 20 years while meeting the riverway's stated purpose. This plan provides a framework for proactive decision making..." (NPS 9.)
Sierra Club focuses on the portion of the CMP related to river crossings. "The [CMP's] long-term goal will be to reduce the number and size of visible river crossings." (NPS 53.) The CMP notes: "Crossings come in three forms: bridges for roads, railroads, pedestrians; overhead wires for communications and electrical energy; and under-river crossings (often called sub-marine crossings) for communications, electrical energy, and material such as fuel or natural gas." (Id.)
The CMP further states:
There will be no net increase in the number of transportation corridors. In general, transportation corridors will be replaced in or adjacent to the existing corridor. Existing transportation corridors will be relocated only if all of the following are true: 1) the need for the project is clearly justified, 2) the project is consistent with state and regional transportation plans, 3) there is no feasible and prudent alternative to relocating the corridor, and 4) all built elements of the existing corridor are removed, and the corridor is restored to natural conditions. Existing corridors are defined as being roughly equivalent to the existing approach rights-of-way. Existing bridges may be replaced with new bridges provided that existing structures are removed.
(NPS 53.)
Sierra Club claims that NPS's approval of the Proposed Bridge, along with failing to remove the Lift Bridge, was unlawful because it violated the directives of the CMP by increasing the number of river crossings, by increasing the number of transportation corridors, and by violating the four-part test for relocating transportation corridors.
b. Increase in the Number of River Crossings
The CMP broadly defines "crossings" to include pedestrian bridges as well as road bridges. There is no question that construction of the Proposed Bridge will increase the numbers of crossings over the Lower St. Croixthe Lift Bridge will continue to be a crossing because it will be used as a pedestrian and bicycle bridge *980 and the Proposed Bridge will constitute an additional crossing because it will be a road bridge. However, the CMP does not provide a mandatory duty to avoid increasing the number of crossings. Rather, it expresses "a long-term goal" to reduce the number of crossings. Because the language of the CMP does not provide a mandatory duty, Sierra Club cannot assert a claim against NPS based on an increase in the number of crossings.
c. Whether NPS Violated the Policy Regarding Transportation Corridors
i. Whether the Converted Lift Bridge Will Continue to Qualify as a Transportation Corridor
Sierra Club asserts that the "no net increase in the number of transportation corridors" requirement is violated because the Proposed Bridge will exist alongside the existing Lift Bridge. Sierra Club argues that the CMP applies equally to "bridges for roads, railroads, [and] pedestrians." (NPS 53.) However, this quotation defines "crossings," not "transportation corridors." "Crossings" is a broader term than "transportation corridors," because it includes overhead wires and under-river crossings for electricity and gas, which are indisputably not transportation corridors. Sierra Club also refers to a set of handwritten NPS notes which acknowledges one of the "weaknesses" of the 2005 Evaluation is its "[c]ompromise to non-proliferation policy." (NPS 2121.) This handwritten note is of little value to the Court, and it is not apparent if the note writer was addressing the CMP goal of not increasing crossings or the CMP directive to not increase transportation corridors.
In contrast, NPS has interpreted the term "transportation corridor" to not include non-vehicular bridges. In the 2005 Section 7 Evaluation, NPS concluded that removing vehicular traffic from the Lift Bridge "[h]elps meet CMP policy of no net increase in number of transportation corridors by eliminating motorized vehicles." (NPS 507. See also NPS 508-09 ("Removing vehicular traffic from the Lift Bridge... would maintain the current number of vehicular transportation crossings of the Riverway.").) (In an earlier July 2004 review, NPS specifically stated how converting the Lift Bridge to eliminate vehicular traffic would allow the Proposed Bridge to satisfy the CMP's requirement that there be "no net increase in the number of transportation corridors crossing the Riverway." (NPS 1587.))
The Court concludes that, in context, a "transportation corridor," at a minimum, requires motorized traffic or moving goods or persons for non-recreational purposes. The proposed pedestrian and bicycle bridge does not meet the definition of transportation corridor, when the Lift Bridge will be for non-motorized, recreational use. The CMP defines crossings to include pedestrian and bicycle bridges, but "crossings" is a far broader term, including underground gas lines and power lines. Additionally, the CMP's four-part test for relocated "transportation corridors" addresses whether the project is "consistent with state and regional transportation plans." (NPS 53.) A recreational pedestrian and bicycle path is not typically part of a regional transportation plan. In any case, in the view of the lack of guidance in the CMP, NPS's interpretation of the term "transportation corridor" to require motorized traffic is, at a minimum, reasonable. The Court concludes that the Proposed Bridge will not violate the CMP's statement that there "will be no net increase in the number of transportation corridors."
ii. Whether NPS Addressed the CMP Factors for Relocating the Transportation Corridor
Sierra Club asserts that NPS did not abide by the CMP's four-factor test for *981 relocation of a transportation corridor. Specifically, Sierra Club argues that the Proposed Bridge plan fails to comply with the fourth requirement, that "all built elements of the existing corridor are removed, and the corridor is restored to natural conditions." (NPS 53.)
Defendants note that closing the Lift Bridge to vehicular traffic and converting it to a pedestrian and bicycle trail will enhance the recreational values of the river while still preserving the scenic, historic Lift Bridge structure. The CMP envisions expansion of trails within the Riverway. (NPS 49.) Additionally, the CMP emphasizes preserving and protecting the historic cultural values and structures in the Lower St. Croix, particularly those listed on the National Register of Historic Places, and promoting "adaptive reuse of existing historic structures." (NPS 31, 55-57.) Therefore, the CMP, itself, contains competing direction to, on the one hand, eliminate all built elements of the Lift Bridge and, on the other hand, preserve the Lift Bridge and adapt it for reuse.
Additionally, the Department of Interior has a competing legal responsibility to preserve the historic value of the Lift Bridge, which is on the National Register of Historic Places, administered by NPS. (NPS 79-101.) Because the Lift Bridge has historic value and is listed on the National Register of Historic Places, NPS was required to consider the Lift Bridge's historical value when deciding whether to approve the Proposed Bridge plan. 16 U.S.C. § 470f.
The 2005 Section 7 Evaluation demonstrates that NPS attempted to balance the historic value of the Lift Bridge, adaptive reuse to increase recreational value, and preservation of the natural scenery when NPS stated: "Closure of the Lift Bridge to motorized traffic would allow for partial restoration of the Wisconsin bluff at the approach to the Lift Bridge and improve the aesthetics of the area by removing traffic noise, while preserving a historic bridge." (NPS 509.) NPS further recognized, however, that allowing the Lift Bridge to remain would "create an increased urban nature" in this portion of the river. (Id.) NPS also explained that conversion of the Lift Bridge and creation of the connected trail would increase recreational value. (NPS 515.)
Although the Lift Bridge will no longer constitute a transportation corridor, Sierra Club is correct that, technically, not all built elements of the Lift Bridge will be removed and it will not be restored to its natural conditions. While NPS's 2005 Section 7 Evaluation does not rigidly comport with the fourth factor for relocating existing transportation corridors, the Court concludes that this conflict does not provide a viable cause of action for violation of the WSRA or an independent cause of action for violation of the CMP.
First, as to the integrity of the Section 7 Evaluation, NPS's decision to not completely remove the Lift Bridge from the Lower St. Croix was not an arbitrary or capricious decision violating Section 7. NPS faces competing interests with regard to the Lift Bridgethe interest in the preservation of the natural conditions of the Lower St. Croix under the WSRA and the interest in preserving the Lift Bridge itself as a National Historic site. Additionally, the Lift Bridge was in existence long before the relevant portion of the Lower St. Croix became part of the Wild and Scenic River system. The Lift Bridge is a unique bridge in that it does provide scenic and recreational value as a National Historic site and a revamped recreational trail. Moreover, under the Proposed Bridge plan, some of the Lift Bridge's built elements will be removed insofar as the approaches to the Lift Bridge will be restored to a more natural condition. (See *982 NPS 474 (providing that "[t]he existing approach roads to the Lift Bridge would be restored" and the areas would be "revegetated").) In context of the entire CMP, the Court does not read the fourth factor to be a clear mandatory duty. NPS has not violated the WSRA simply because the decision to keep the Lift Bridge's structure in place conflicts with a factor listed in the CMP, when complete removal would conflict with other CMP provisions. Moreover, this CMP is merely a general framework to give direction in management of the river, not a statutory mandate. (See ROD, 66 Fed.Reg. 56848, 56851 (Nov. 13, 2001) (providing that the CMP was implemented to provide a "policy-level management framework for the riverway"); CMP, NPS 9 (providing that CMP's purpose is to "describe the direction the managing agencies intend to follow in managing the lower riverway for the next 15 to 20 years while meeting the riverway's stated purpose" and that it "provides a framework for proactive decision making"); 2005 Section 7 Evaluation, NPS 468 ("The Cooperative Management Plan (CMP) was finalized in January 2002 and provides general direction for managing the Riverway over the next 15-20 years.") (citation omitted).)
The Court further concludes that there is no basis for determining that, as to the portion of the CMP at issue here, the CMP creates mandatory duties, enforceable by Sierra Club in this action. NPS is statutorily required to prepare a CMP in accordance with the WSRA, and, in the Secretarial Guidelines, NPS has professed that it will use CMPs in managing Wild and Scenic Rivers. See 16 U.S.C. § 1274(d)(1); Secretarial Guidelines, 47 Fed.Reg. 39,454, 39,458 (Sept. 7, 1982) ("Wild and scenic rivers shall be managed with plans prepared in accordance with the requirements of the [WSRA]...."); id. ("Management plans will state ... specific management measures which will be used to implement the management objectives for each of the various river segments and protect esthetic, scenic, historic, archeologic and scientific features."). However, NPS is not statutorily required to implement every line in the CMP. See, e.g., Riverhawks v. Zepeda, 228 F. Supp. 2d 1173, 1186 (D.Or.2002) (holding that "plaintiffs provide no persuasive authority that the [CMP's] requirement [that "[a] recreation plan will be prepared for the river area"] is enforceable").
In this case, in which the CMP provides a general, long-term policy framework; the action that is a technical violation of the CMPthe failure to remove all built elements of the historic Lift Bridgedoes not otherwise conflict with NPS's Section 7 mandate; there are competing statutory considerations regarding removal of the Lift Bridge; and removal of all built elements would conflict with other provisions of the CMP, the Court holds that Defendants are entitled to summary judgment on Count I.
6. Whether NPS Applied the "Protect and Enhance" Requirement of the WSRA, Section 10(a)
Section 10(a) of the WSRA requires that each wild and scenic river be "administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values." 16 U.S.C. § 1281(a). The 1982 Secretarial Guidelines interpret Section 10(a) "as stating a nondegradation and enhancement policy for all designated river areas, regardless of classification." 47 Fed.Reg. 39,454, 39,458. Sierra Club argues that NPS failed to address Section 10(a)'s non-degradation policy; therefore the 2005 Section 7 Evaluation is contrary to law.
*983 The Court concludes that the obligations of Section 10(a) do not apply to NPS's Section 7 evaluation when the Proposed Bridge is located within the state-administered portion of the Lower St. Croix. See Fitzgerald v. Harris, Civil No. 07-16-B-W, 2007 WL 2409679, at *4 (D.Me. Aug. 20, 2007) (noting that Section 10 "addresses primarily administrative responsibilities vis-à-vis federally owned components of the system"), adopted Civil No. 07-16-B-W, 2008 WL 375252 (D.Me. Feb. 11, 2008), aff'd 549 F.3d 46 (1st Cir.2008). The states, not NPS, administer the lower portion of the Lower St. Croix. By conducting a Section 7 evaluation, NPS does not convert a state-administered river into an NPS-administered river.
Sierra Club's reliance on Sokol for the proposition that NPS's Section 7 Evaluation of a project within the state-administered zone was an "administrative act" subject to Section 10(a) is misplaced. In Sokol, the Eighth Circuit held that Section 10(a) applied to NPS's action of selecting the boundaries of a federally-administered river component that, at Congress's direction, was "administered by the Secretary of the Interior." Sokol, 210 F.3d at 877;16 U.S.C. § 1274(a)(117). Section 10(a) does not apply to NPS's Section 7 evaluation of a water resources project located within a state-administered component of a wild and scenic river.
7. Whether NPS Violated the Organic Act and General Authorities Act
Sierra Club asserts that the 2005 Section 7 Evaluation is arbitrary and capricious because NPS approved the Proposed Bridge without considering the non-impairment requirement of the Organic Act and General Authorities Act.
The 2005 Section 7 Evaluation provided:
Section 7(a) of the Wild and Scenic Rivers Act directs the administering official to evaluate the `direct and adverse impacts' of a water resource project. It does not authorize the administering official to examine indirect impacts. The NPS has commented on those indirect impacts through the NEPA process, but it cannot focus on them during its Section 7(a) evaluation.
(NPS 490.) Sierra Club asserts that NPS failed to apply the relevant statutory authority by ignoring indirect effects relevant under the Organic Act and General Authorities Act.
By their own terms, the Organic and General Authorities Acts apply to the administration of the national park system. Because the Proposed Bridge would be located in the state zone of the Riverway, the Organic Act and General Authorities Act do not apply. Under the WSRA, any part of the Wild and Scenic River System administered by NPS becomes part of the National Park System. 16 U.S.C. § 1281(c). As the Court has already concluded, the lower segment of the Lower St. Croix is state-administered. Therefore, the southern segment of the Lower St. Croix is not part of the national park system.
Additionally, Plaintiffs have failed to point to evidence in the record that the Proposed Bridge will have a scenic impact within the federal zone. The parties note that the 2005 Section 7 Evaluation states that a site visit to locations on the Minnesota bank approximately 17,400 feet north of the preferred crossing indicated that "the preferred crossing would not likely be visible from these locations." (NPS 498-499.) "Because of a bend in the river, the preferred crossing would be blocked from view by the Wisconsin bluff and the vegetative cover on it." (NPS 499.) The Proposed Bridge would not become visible until further downstream. (Id.) Similarly, the Proposed Bridge would not be visible on the Wisconsin side of the river at this distance. (Id.) NPS specifically found that *984 "[t]he preferred crossing would not be visible from the Wisconsin side of the river between Boomsite Landing [north of the Lift Bridge] and the Lift Bridge." (Id.)
However, the parties do not point the Court to evidence that the Proposed Bridge would be seen from within the federal zone. There is no evidence sufficient to support Sierra Club's argument that the Proposed Bridge will negatively impact the scenery in the federal zone; therefore, the Court cannot conclude that the Organic and General Authorities Acts might apply based on a possible scenic impact to the portion of the Lower St. Croix within the national park system.
Finally, the Court rejects Sierra Club's claim that, in a 1990 letter from the Department of Interior, NPS previously acknowledged that the Organic Act applies to this portion of the Riverway. (See FHWA 337 (citing 1990 letter from Department of Interior opining that NPS's recommendation regarding a Stillwater-Houlton bridge will depend, in part, on its "interpretation of its mandates under the Wild and Scenic Rivers Act and the National Park Service's 1916 Organic Act.")). This excerpt from the 1990 letter does not state a position that the Organic Act applies, but rather, provides that NPS must interpret its mandateif anyunder the Organic Act in order to form its recommendation on the bridge.
The Court grants summary judgment for Defendants on Count IV.
8. Whether NPS Granted an Unlawful Right of Way
Sierra Club has abandoned Count V, alleging that NPS granted an unlawful right of way over the Lower St. Croix. Therefore, the Court dismisses Count V.
C. Whether FHWA Violated NEPA
1. Introduction
Sierra Club asserts that FHWA violated NEPA by failing to consider the following reasonable alternatives to the Proposed Bridge: a new two-lane crossing replacing the Lift Bridge; cumulative alternatives, such as a two-lane bridge combined with Transportation System Management/Transportation Demand Management ("TSM/TDM") strategies; Sierra Club's reversible lane proposal for Alternative E; Alternative E1, a slower and lower version of Alternative E; and expanding capacity at 1-94. "[W]hile the EIS need not be exhaustive, the existence of a viable but unexamined alternative renders an [EIS] inadequate." Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999) (citation omitted).
Sierra Club also claims that FHWA violated NEPA by failing to adequately address the indirect and cumulative impacts of the Proposed Bridge.
2. Standard
NEPA requires that a federal agency prepare an FEIS whenever it recommends a `major federal action[]' that will `significantly affect[] the quality of the human environment.' 42 U.S.C. § 4332(C). NEPA's requirements are more procedural than substantive. Preparation of an FEIS forces the agency to take a `hard look' at environmental consequences and to inform the public that environmental concerns have in fact been considered. But NEPA does not mandate particular agency decisions, and accordingly judicial review under NEPA is limited to ensuring that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. The reviewing court is not empowered to substitute [its] judgment for that of the agency.
City of Bridgeton v. FAA, 212 F.3d 448, 455 (8th Cir.2000) (citations omitted).
*985 Adequate agency consideration is evidenced through the EIS's form, content, and preparation. We need not `fly speck' an EIS for inconsequential or technical deficiencies. Instead, we consider whether the agency's actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to environmental values.
Dombeck, 164 F.3d at 1128 (citations omitted).
3. Whether FHWA Failed to Address a Reasonable Range of Alternatives
a. Waiver
Defendants argue that Sierra Club cannot challenge the EIS based on alternatives that Sierra Club, itself, did not raise administratively. Defendants note that "[p]ersons challenging an agency's compliance with NEPA must structure their participation so that it ... alerts the agency to the [parties'] position and contentions in order to allow the agency to give the issue meaningful consideration." Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S. Ct. 2204, 159 L. Ed. 2d 60 (2004) (citation omitted).
Public Citizen "did not limit who could bring actions under NEPA based on participation in the administrative process; rather, it limited what could be raised in those actions." Choate v. U.S. Army Corps of Eng'rs, No. 4:07-CV-01170-WRW, 2008 WL 4833113, at *5 (E.D.Ark. Nov. 5, 2008) (footnote omitted). Therefore, "[a] party that did not participate in the administrative process may challenge the agency's decision in court so long as the party raises issues that were submitted by others during the administrative process." Id. (footnote omitted). Public Citizen addressed situations in which an agency had no notice of an alternative, because, in those cases, the agency would be deprived of "any opportunity to consider the issue that the challenger later sought to raise in litigation." Sierra Club v. Kimbell, 595 F. Supp. 2d 1021, 1031 (D.Minn.2009).
In this case, the Court does not find waiver because all of the alternatives Sierra Club now puts forth were brought to FHWA's attention at some point during the administrative process. (See Nov. 30, 2001, U.S. Institute for Environmental Conflict Resolution Assessment, NPS 1447 (noting that some stakeholders favored consideration of a two-lane bridge and recommending that the alternative be addressed in the EIS); Jan. 6, 2004, Stakeholder Meeting Summary, FHWA 2758 ("There was agreement that mass transit should be included, as well as any feasible/reasonable elements of Alternative A."); July 19, 2005 Email to stakeholders, FHWA 7522 (explaining that, at the beginning of the Stakeholder process, transportation agencies were asked to study "a `smaller scale' system (size of structures, lane widths, design speed, etc.)"); Jan. 4, 2004, memorandum summarizing agency and stakeholder comments to 2003 Amended Scoping Document, FHWA 31575-76 (noting that Sierra Club proposed detailed consideration of reversible lanes for Alternative E and emphasizing that mass transit and TSM/TDM should be studied with all alternatives); SFEIS, Responses to Comments on the Supplemental Draft EIS, FHWA 8357-58 (addressing and rejecting possibility of increasing capacity at I-94); Jan 9, 2004 Email to stakeholders from stakeholder, FHWA Doc. 2774 (proposing Alternative E-1)).
b. Whether FHWA Should Have Considered a Two-Lane Replacement Bridge Option
Sierra Club argues that FHWA failed to consider a new two-lane replacement for the existing Lift Bridge. Sierra Club argues that the two-lane alternative *986 should have been considered because such a smaller-scale crossing would have reduced impacts to the Riverway's scenic and recreational values. See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 784 (9th Cir.1980) (finding consideration of two-lane road alternative "was both reasonable and obvious" and failure to analyze it rendered EIS inadequate).
The Court holds that FHWA had no duty to consider a two-lane option because that option would not meet the need and purpose of the project.
According to the SFEIS,
The project purpose is to improve Minnesota Trunk Highway 36 and Wisconsin State Trunk Highway 64 between Trunk Highway 5/County State Aid Highway (CSAH) 5 in Oak Park Heights and Stillwater, Minnesota, and 150th Avenue in the Town of St. Joseph, Wisconsin, to provide a safe, reliable, and efficient transportation corridor by reducing congestion, improving roadway safety, and providing an adequate level of service for forecasted year 2030 traffic volumes. Transportation needs for this project fall into two primary categories:
Transportation mobility on a safe and efficient facility;
A reliable crossing of the St. Croix River.
(FHWA 7840 (footnote omitted).)
NEPA does not require an agency to consider, in an EIS, "unreasonable" alternatives that do not meet a project's purpose and need. City of Richfield, Minn. v. F.A.A., 152 F.3d 905, 907 (8th Cir.1998) ("Under NEPA, an EIS must examine `reasonable alternatives' to a project.... An alternative is unreasonable if it does not fulfill the purpose of the project.") (citations omitted). The SDEIS noted that construction of a two-lane bridge was studied in the 1999 Amended Scoping Decision process. (FHWA 4163.) The SDEIS stated, "After consideration of travel forecasts and information related to safety and roadway design it was concluded [in 1999] that a two-lane alternative was not a reasonable and prudent alternative to meet the project need and travel forecasts and would not be studied further." (Id.)
c. Whether FHWA Should Have Considered a Variation of Alternative E that Would Accommodate Lift Bridge Closures: Reversible Lane Alternative
Sierra Club argues that the concept of a reversible lane should have been considered. Instead, only Alternative Ea combination of one-way bridges, with no reversible lanewas considered in the EIS. Sierra Club concludes that dismissal of this alternative "in a conclusory and perfunctory manner" was arbitrary and capricious because FHWA failed to "[r]igorously explore and objectively evaluate" the reversible lane option as a reasonable alternative. 40 C.F.R. § 1502.14(a); Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir. 2002).
The SFEIS explained in detail why Alternative E was not identified as the Preferred Alternative in the SFEIS. Whether Alternative E was designed to include reversible lanes or not, the same factors that caused FHWA to make its decision would have existed. NEPA does not require an agency to "undertake a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered or which have substantially similar consequences." Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853, 868 (9th Cir.2004) (citation omitted).
In this case, FHWA rejected Alternative E for multiple reasons such as:
*987 Regional Vehicle Hours Traveled (VHT) would decrease with Alternative E compared to the No-Build Alternative; however, this decrease is less than with Alternative B-1.
Regional Daily Vehicle Miles Traveled (VMT) would increase with Alternative E compared to the No-Build Alternative. Regional Daily VMT would decrease with Alternative B-1.
More local intersections operating at unacceptable Level of Services ("LOS") (LOS E or F) than with Alternative B-1.
* * *
More residential and commercial properties would be acquired under Alternative E than with Alternative B-1.
* * *
Close proximity of Alternative E river crossing to downtown Stillwater would result in visual impacts to Lowell Park (a Section 4(f) resource).
Land would be acquired from Kolliner Park (a Section 4(f) resource) to accommodate the Alternative E river crossing and new STH 64 whereas Alternative B-1 will not acquire land from Kolliner Park.
* * *
Seven NRHP-listed, determined eligible, or potentially-eligible historic properties would be adversely affected by Alternative E, compared to six properties for Alternative B-1.
The likelihood of receiving a positive Section 7(a) Evaluation from the NPS with Alternative E, similar to Alternative D, was unknown and contributed to the elimination of the alternative from further consideration. In a preliminary review of the Build Alternatives for the SDEIS, the NPS had indicated that Alternative E may not be able to receive a favorable Section 7(a) Evaluation, even with a strong mitigation package.
(FHWA 7862-7864.) While the reversible lane variation would address a few of the reasons for rejecting Alternative E, such as the fact that Lift Bridge closures would halt all westbound traffic, it does not resolve the multitude of reasons listed above.
Additionally, Alternative Eand the reversible lane variationrelied on the Lift Bridge to remain a viable crossing, although "the Lift Bridge cannot provide reliable service" due to deck lifts, elevation, and physical condition. (FHWA 7848.) "[T]he Lift Bridge is already beyond the normal operational life of a bridge structure. Studies have raised substantial structural concerns regarding the Lift Bridge's machinery, structure, and substructure. The condition of these components and recent operational experience suggest that the Lift Bridge is nearing the end of its `useful service.'" (FHWA 7849 (footnote omitted).) The SFEIS opined that, by 2020, a major rehabilitation would be needed "and would result in closing the bridge to traffic for approximately two years." (Id.) According to the SDEIS, this would leave the new Alternative E bridge as the sole two-way bridge, with one lane in each direction, which would not meet traffic needs and would require a new river crossing option. (FHWA 4158)
FHWA and the Stakeholders Group evaluated multiple alternatives, including an alternative utilizing the Lift Bridge in conjunction with a new two-lane bridge. Although FHWA did not discuss each variation of Alternative E, such as the reversible lane option, the Court concludes that FHWA's selection of alternatives to discuss in the SFEIS met the "rule of reason." City of Bridgeton, 212 F.3d at 455.
d. Whether FHWA Should Have Considered Alternative E1
Alternative E1 was a lower, slower version of Alternative E, with fewer environmental impacts. (FHWA 2774.) Sierra Club asserts that Alternative E1 could *988 have reduced the environmental impacts associated with Alternative E.
For the same reasons that FHWA did not violate the law by rejecting the reversible lane alternative, it did not do so by rejecting Alternative E1. Alternative E1 was not significantly distinguishable from Alternative E.
e. Whether FHWA Should Have Considered Expansion of the I-94 Corridor
Sierra Clubs asserts that the EIS should have considered expanding capacity at the existing I-94 crossing in Hudson. Citing to comments by the Minnesota Center for Environmental Advocacy, Sierra Club argues that traffic diverted from I-94 may be increasing congestion on the Lift Bridge. (Oct. 6, 2004, Minnesota Center for Environmental Advocacy, Comments on SDEIS, FHWA 32821 (noting that approximately half of trips are work-related and suggesting diverting regional work-related trips to I-94 through tolling and asserting that, because I-94 is nearing capacity, limited capacity may be diverting traffic to the Lift Bridge, a result which might be ameliorated with improvements to I-94).) Sierra Club asserts that expansion of the I-94 crossing might have addressed the project's goals of reducing congestion, improving safety, and providing adequate service for 2030 traffic volumes, while avoiding "impacts to the Riverway's channel, shoreline, bluffs, air quality and water quality." (See FHWA 7840, 7843.)
FHWA determined that expanding capacity on the existing I-94 corridor would not have addressed the purpose of the project. The purpose of the project is to improve the TH36/STH64 corridor. There is already an existing transportation corridor over the Lower St. Croix between TH 36 and STH 64. However, the corridor is currently served by a failing Lift Bridge that no longer effectively serves Minnesota and Wisconsin's transportation systems. Beyond brief questions by the Minnesota Center for Environmental Advocacy, Sierra Club points to no evidence in the record that expanding a different transportation corridor might effectively address the problems in the TH 34/STH 64 corridor. Although the Minnesota Center for Environmental Advocacy questioned whether redirecting work-related traffic might reduce Lift Bridge traffic, there is no evidence of the possible effectiveness of this idea, nor any suggestion that enough traffic could be redirected to address the problems caused by the Lift Bridge's frequent closure or need to be shut down entirely for major renovation in the near future. Therefore, this solution was unreasonable because it did not fulfill the project's purpose. See City of Richfield, 152 F.3d at 907. See Mayo Found v. Surface Transp. Bd., 472 F.3d 545, 550-51 (8th Cir.2006) (upholding agency failure to "consider [an] alternative because that route is simply inconsistent with the project's purposes" and therefore is not a "reasonable alternative").
f. Whether FHWA Should Have Considered a Cumulative Alternative
Sierra Club asserts that FHWA's failure to consider the cumulative alternatives including TSM/TDM rendered the EIS arbitrary and capricious. Instead, FHWA only considered mass transit and TSM/TDM strategies as a stand-alone option with the existing Lift Bridge, which the agency had already decided was unreliable. (FHWA 7849-52.) Sierra Club argues that, by only considering TSM/TDM separately, FHWA failed to analyze whether these strategies could satisfy the project's purpose and need when combined with a new, smaller-scale bridge.
FHWA analyzed Alternative A, which included TSM/TDM strategies with the no-build *989 alternative, but rejected it because it did not meet the purpose of the project. FHWA concluded that implementing all possible TSM/TDM strategies would have an imperceptible effect on peak traffic volumes and congestion in the project area. (See, e.g., FHWA 7851 (concluding that an extensive TSM/TDM program implementing all possible TSM/TDM strategies would cause a 5.2 percent decrease in bridge traffic per day; however, due to "back filling" of trips, peak period reductions "would likely not be perceptible to motorists, would not meet broader regional travel needs, and would not reduce the number of vehicles per lane in the peak hour from existing congested levels").) However, inquiry into this area did spark a transit feasibility study by the state DOTs.
The Court cannot say that FHWA acted arbitrarily and capriciously by failing to study the combination of other build alternatives along with a TSM/TDM alternative that would have an imperceptible effect and would not reduce the number of vehicles per lane in the peak hour. This is not an instance of FHWA only addressing two alternatives overall or failing to consider the combined effect of other alternatives with a TSM/TDM strategy when the record demonstrated that the TSM/TDM strategy "could significantly contribute to traffic management in the area." Cf. Davis v. Mineta, 302 F.3d 1104, 1121-22 (10th Cir.2002) (holding FHWA violated NEPA by rejecting "Transportation System Management (TSM) and mass transit... because, standing alone, they would not meet the purpose and need of the Project" and considering only two alternatives the no-build alternative and the preferred alternativeand holding, instead, FHWA should have considered TSM and mass transit together with other alternatives when "[a]ccording to the various reports in the record, TSM could significantly contribute to traffic management in the area and mass transit in any number of iterations is apparently under active consideration in this area by a number of jurisdictions involved").
Overall, while Sierra Club "points to some alternatives that might have been considered or discussed more fully, the `detailed statement of alternatives cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable.'" Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 528 (9th Cir.1994) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978)). The SFEIS discusses an appropriate range of reasonable alternatives sufficient to satisfy NEPA.
4. Whether FHWA Adequately Addressed Indirect Impacts
Indirect effects
are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
40 C.F.R. § 1508.8(b). Sierra Club asserts that FHWA failed to seriously analyze the effect of increased land development caused by the Proposed Bridge.
Sierra Club asserts that the EIS lacks any meaningful analysis of the Proposed Bridge's indirect effects on Wisconsin's natural and cultural resources, such as water quality, wetlands, and wildlife habitat. While FHWA recognized that the project could cause increased growth, FHWA failed to analyze the environmental ramifications of that growth "on air and water and other natural systems, including ecosystems."
40 C.F.R. § 1508.8(b). Sierra *990 Club claims that the discussion of indirect impacts to natural resources in the SFEIS is simply a laundry list of other agencies' concerns. (FHWA 8154-56.) It concludes that these concerns were not "thoroughly investigated and forthrightly acknowledged." Nat'l Audubon Soc'y v. Dept. of Navy, 422 F.3d 174, 199 (4th Cir.2005).
Sierra Club notes that, during the circulation of a "cooperating agency draft" of the Final EIS in June 2005, various Stakeholders mentioned that the indirect effects analysis was inadequate. (See, e.g., August 1, 2005 Letter from NPS commenting on Draft SFEIS, FHWA 34924 (concluding that draft "indirect impacts analysis lacks substance" and requesting that FHWA "evaluate the potential impacts to natural resources, especially water quality, that are predictable with the known population growth and development pressure that will result from the preferred alternative").) Sierra Club argues that FHWA made only a few changes in response to these comments. See Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 537 (8th Cir.2003) (finding EIS inadequate because agency failed to satisfy "minimum requirement" of assessing, considering, and responding to all comments) (citing 40 C.F.R. 1503.4(a)). Sierra Club admits, however, that all of the agencies who criticized the indirect effects analysis in the cooperating agency draft of the Final EIS dropped their objections or signed mitigation agreements. See Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. U.S. Dept. of Transp., 524 F. Supp. 2d 642, 664 (D.Md.2007) ("It is also worth noting that the agencies Plaintiffs referred to, who initially gave negative comments ... concurred that their comments had been addressed in the version that ultimately appeared in the EIS.").
Sierra Club also argues that FHWA's conclusory statements regarding indirect effects lacked supporting data. See Friends of the Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 822 (8th Cir.2006) (noting that "agency must provide a satisfactory explanation for its actions based on relevant data") (citation omitted).
The Court holds that FHWA's indirect effect analysis was sufficient. (See SFEIS Chapter 13, FHWA 8141-63.) It identified indirect effects and mitigation measures to minimize those effects. FHWA analyzed existing and future land use, existing and future population estimates, growth management strategies from local plans, and land use regulation and ordinances such as zoning. Local planning documents, such as the St. Croix County Development and Management Plan, plan for construction of a new river crossing. (FHWA 8149.) FHWA also held discussions with local government and planning officials on land use trends. (FHWA 8146.) This analysis and reliance on local land use plans and planners was sufficient. See, e.g., Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1174 (10th Cir.2002) (upholding similar indirect effects analysis and noting authority for EIS to rely on local planning documents and consultations with local planners), modified, 319 F.3d 1207 (10th Cir.2003); City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142, 1162-63 (9th Cir.1997) (holding EIS sufficient even though proposed freeway would "induce[]" development because FEIS "admits that development may result from the freeway project" and "[t]his development is nonetheless planned for in the Carmel Valley Master Plan; it has been accounted for and properly analyzed. No further analysis is warranted.") (citations omitted).
5. Whether FHWA Adequately Addressed Cumulative Impacts
Cumulative impact is the impact on the environment which results from the incremental *991 impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7.
Sierra Club argues that the Final EIS's cumulative impacts chapter lacks any quantified or detailed information about the impact of the Proposed Bridge and other projects on multiple natural resources. Sierra Club argues that an adequate EIS would include scientific studies, methodologies, and data. "General statements that merely catalog environmental facts are legally inadequate in light of the relevant standard; rather, some quantified or detailed information is required." Sierra Club v. Bosworth, 352 F. Supp. 2d 909, 926 (D.Minn.2005) (citation omitted). "NEPA requires more than a mere acknowledgment of impacts on adjacent lands; rather, the statute requires an analysis of those cumulative impacts." Id. at 927. Sierra Club asserts that, here, the cumulative impacts chapter simply lists various impacts that "could" occur, without detailing the magnitude of those effects. (See, e.g., SFEIS, FHWA 8185 ("Water quality can be impaired from development related activities, raising the concern for potential cumulative impacts. However, the regulatory structures currently in place reduce the potential for significant adverse impact to water quality resulting from the proposed action in combination with other public and private actions.").)
When read as a whole, FHWA's cumulative impacts analysis is a reasonable assessment, considering the relevant factors, which satisfies the "hard look" requirement under NEPA. The certainty expressed by FHWA whether an impact that could occur, is unlikely to occur, or will occur varies with the specific impact discussed. (FHWA 8164-94.) Similarly, the specificity and quantitative nature of FHWA's analysis varies depending on the particular subject. While, as Sierra Club points out, FHWA provides general analysis of cumulative water quality impact because there is no specific information of type and density of development anticipated and Wisconsin local government agencies are still developing stormwater management policies (FHWA 8184), it provides more specific analysis of impacts, such as noise, where precise decibel amounts are estimated for the Proposed Bridge and specific recommendations are made for keeping residential areas 200 feet from the roadway centerline if mitigation measures are not incorporated (FHWA 8179-80).
The analysis sets the geographic and time boundaries of the cumulative impacts assessment. It then summarizes the existing condition of each potentially affected resource. The analysis summarizes the impacts from the Proposed Bridge on each potentially affected resource and identifies other current and reasonably foreseeable future actions and their possible impacts on those resources. Finally, the analysis discusses the potential for cumulative impacts on the resources and mitigation or minimization measures. This approach constitutes a "meaningful cumulative impact analysis." Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C.Cir.2002).
The analysis was performed for 1) land development, 2) prime agricultural land, 3) social (neighborhoods and communities), 4) regional economy, 5) air quality, 6) noise, 7) wetlands, 8) water quality and quantity, 9) aquatic resources, 10) vegetation, 11) wildlife, 12) parks and recreational lands, 13) aesthetics, and 14) archeological and historic resources. In the areas where cumulative impacts were likely, FHWA *992 concluded that these impacts could be avoided or minimized through land use controls, other development controls, and roadway access restrictions. (FHWA 8194.) This analysis was thorough enough to meet NEPA's hard look requirement.
D. Whether FHWA Violated Section 4(f) of the Transportation Act
1. Introduction
Sierra Club asserts that FHWA violated § 4(f)(1) because it failed to evaluate a reasonable range of alternatives and violated § 4(f)(2) because it failed to provide a meaningful comparison of the degree of harm caused by each of the four build alternatives in order to meet the least-harm requirement. Section 4(f) governs FHWA's approval of "a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State or local significance." 49 U.S.C. § 303(c). Approval is permitted only if
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
Id.
The § 4(f) standard is substantive, while NEPA's requirements are procedural. Friends of Marolt Park v. U.S. Dept. of Transp., 382 F.3d 1088, 1095 (10th Cir. 2004).
2. Whether FHWA Considered a Reasonable Range of Alternatives in the EIS
The Secretary of Transportation cannot approve a project on § 4(f) property, such as the Lower St. Croix National Scenic Riverway, unless "there is no prudent and feasible alternative to using that land." 49 U.S.C. § 303(c)(1). The Court "must determine whether the Secretary "reasonably believed that ... there are no feasible alternatives or that alternatives do involve unique problems." City of Bridgeton, 212 F.3d at 461 (citation omitted). "[A]n alternative is imprudent under section 4(f)(1) if it does not meet the transportation needs of a project ... [and] an alternative that does not effectuate the project's purposes is, by definition, unreasonable, and need not be evaluated in detail under § 4(f)." Id. (citation omitted).
Sierra Club does not clearly identify a reasonable alternative that FHWA should have considered that would not have used § 4(f) resources. As previously explained, FHWA did not need to consider unreasonable alternatives that did not meet the purpose of the project, such as the two-lane replacement bridge option. As for the no-build and transit alternative the only apparent alternative that would avoid use of § 4(f) resources FHWA adequately explained why this alternative was not a feasible and prudent alternative because it would not meet the transportation needs of the project.
FHWA identified the § 4(f) resources, determined if a "use" of those resources would occur, described the impacts on the Lower St. Croix, including constructive use such as impairment of visual qualities, and applied that analysis to all build alternatives. It further considered whether there were any feasible and prudent avoidance alternatives. Concluding that there were not, it evaluated minimization measures. FHWA complied with § 4(f)(1).
3. Whether FHWA Minimized Harm to § 4(f) Resources
If the Secretary of Transportation must use § 4(f) resources, the project must include "all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuse, or historic site resulting *993 from the use." 49 U.S.C. § 303(c)(2). Sierra Club asserts that § 4(f)(2) requires FHWA to select the least-harm alternative from among the prudent alternatives and that FHWA failed to do so.
Sierra Club argues that FHWA failed to satisfy the least-harm standard because it failed to meaningfully compare the impacts of each of the build alternatives and then choose the alternative with the least overall harm. Sierra Club particularly asserts that the Lower St. Croix merits special consideration above other § 4(f) resources because of its WSRA designation. As the most substantial § 4(f) resource involved in this project, the Lower St. Croix merits particular attention. However, FHWA carries a statutory obligation to analyze and balance the effects on all § 4(f) resources. See 49 U.S.C. § 303(c)(2) (requiring "all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use"); City of Bridgeton, 212 F.3d at 462 (upholding agency's decision to choose alternative with greater effect on historic § 4(f) resources than on § 4(f) neighborhood parks when agency thoroughly discussed the choice and sought to mitigate adverse impacts on historic resources).
Sierra Club claims that, here, FHWA failed to compare visual impacts or the amount of roadway over the river. Sierra Club acknowledges that FHWA does discuss visual impacts, but asserts that it does not explicitly compare the magnitude of visual impacts resulting from each build alternative. Sierra Club concludes that, in fact, the Proposed Bridge has the greatest visual impact of any of the build alternatives.
Sierra Club also asserts that the comparisons FHWA did make were incorrect. For instance, FHWA stated that the Proposed Bridge and Alternative C would have less impact on the Wisconsin bluff than Alternatives D or E because the bridge abutment is higher. (FHWA 9307.) Sierra Club counters that the Proposed Bridge and Alternative C have a greater impact because they impact undeveloped Wisconsin bluff, while Alternatives D and E impact more developed bluff. (FHWA 4476.) FHWA acknowledged the differing impacts of the alternatives on the Wisconsin bluff. The Court cannot say FHWA abused its discretion by concluding that the Proposed Bridge caused less harm than Alternatives D and E. The fact that the bluff sites for Alternatives D and E are more developed is only one factor in deciding the overall harm caused to the Wisconsin bluffs by the various alternatives. FHWA did not ignore that fact, but weighed multiple factors within its discretion. See, e.g., City of Bridgeton, 212 F.3d at 462 ("In reviewing an agency's choice among feasible and prudent alternatives, we again apply the arbitrary and capricious standard of review.") (citation omitted); Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 702 (3d Cir.1999) (concluding agency did not abuse its discretion under § 4f(2) decision when agency studied "the various ways in which the alternatives would impact the [resource] and adequately weighed the results of the studies in selecting the preferred alternative [and] also considered the more intangible benefits and harms to [the resources] under the competing alternatives").
FHWA identified the impacts to § 4(f) resources by the various alternatives. It then concluded that there was no feasible and prudent avoidance alternative and that all alternatives would have greater impacts on Section 4(f) resources that the Proposed Bridge. (FHWA 9320-21.) Finally, FHWA engaged in extensive planning to minimize harm to § 4(f) resources and selected the alternative that would cause the least harm to those resources. For example, *994 it used bridge alignement to minimize crossing distance, bridge design to minimize visual impact, and confined construction to a site previously disrupted by construction.
FHWA discussed the visual impact to the Lower St. Croix Riverway in the Final Section 4(f) Evaluation and also referred to the detailed discussion in the SDEIS, which analyzed the visual impact of each alternative from different views and discussed minimization and mitigation techniques for each, and in the SFEIS, which analyzed the visual impact of the Proposed Bridge in detail. (See Final Section 4(f) Evaluation, FHWA 9312.) Multiple minimization measures to minimize harm were studied for each alternative. (See, e.g., FHWA 9317.) For the Proposed Bridge, these measures included choosing a more perpendicular bridge crossing, using an existing ravine for bridge approach location, and choosing an extradosed bridge type. (See, e.g., FHWA 9317-19.) FHWA also weighed the impact on competing § 4(f)resources such as the historic Lift Bridge and local parks. (See Final Section 4(f) Evaluation, FHWA 9320 (incorporating discussion in SFEIS Chapter 3.3.8, FHWA 7874-77).)
FHWA "catalogued in detail the nature of each" affected 4(f) resources and "discussed each site's location, its size, its function, its significance, the activities associated with it, and the degree to which it would be adversely affected." City of Bridgeton, 212 F.3d at 462. Additionally, "most significantly," FHWA provided "plans to avoid, reduce, or mitigate" the adverse impacts on the § 4(f) resources. Id. After conducting an "extensive § 4(f) analysis," id., FHWA determined that the Proposed Bridge "will result in the least impacts to Section 4(f) properties in the project area." (FHWA 9320.) FHWA did not abuse its discretion.
E. Whether Sierra Club Has Met the Injunction Standard
Sierra Club requests a permanent injunction barring the federal government from funding or authorizing the Proposed Bridge.
To determine whether permanent injunctive relief is warranted, [the Court] balance[s] three factors: (1) the threat of irreparable harm to the moving party; (2) the balance of harm between this harm and the harm suffered by the nonmoving party if the injunction is granted; and (3) the public interest.
Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir.2005) (citation omitted). The Court concludes that injunctive relief is warranted here.
First, there is a clear threat of irreparable harm to Sierra Club. The Court concludes that irreparable injury is likely in the absent an injunction. "Environment injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987). In this specific case, NPS has previously found that a substantially similar bridge would fundamentally, permanently, and negatively impact the Lower St. Croix's outstandingly remarkable values. NPS also previously found that no mitigation attempts would be effective. This is the definition of irreparable harm. Of course, the Court has held that NPS is not bound by its previous determination. But, because NPS completely ignored its previous finding and, with no explanation, reversed course, the Court has found that the 2005 Section 7 Evaluation was arbitrary and capricious. The Court cannot predict what NPS's ultimate Section 7 determination would be if it properly took into consideration its 1996 Section 7 Evaluation. *995 But given the magnitude of irreparable harm predicted by NPS in its valid 1996 Section 7 Evaluation, weighed against a contrary opinion in the vacated and arbitrary 2005 Section 7 Evaluation, the Court concludes that this factor weighs heavily in favor of an injunction.
Second, the balance of the harms weighs towards granting the injunction. There is no cognizable harm to NPS from being enjoined from taking an action that is against the law. Without an injunction, NPS will set in motion construction that is likely to cause irreparable injury to the Lower St. Croix and Sierra Club.
Third, the public interest weighs in favor of granting the injunction. The Court acknowledges that there is a public interest alleviating the serious traffic and safety problems associated with the Lift Bridge. However, the WSRA expresses a strong public interest that Wild and Scenic Rivers "and their immediate environments shall be protected for the benefit and enjoyment of present and future generations." 16 U.S.C. § 1271. Moreover, both the State of Minnesota and the State of Wisconsin affirmatively requested that the relevant portion of the Lower St. Croix be included in the Wild and Scenic River System for protection. The overriding public interest is in protecting the outstandingly remarkable values of the Lower St. Croix, particularly when the significant possibility for indefinite damage to those values is created by the Proposed Bridge. The 2005 Section 7 Evaluation recognizes that "[p]lacing a bridge where there previously was not one results in a fundamental change in the scenic qualities that existed in this portion of the Riverway at the time of designation." In 1996, NPS opined that the negative impact of a similar bridge could not be significantly mitigated. In this case, there is no evidence before the Court that any work on the Proposed Bridge has begun, so an injunction will effectively prevent irreparable harm. Therefore, the Court concludes that entry of a permanent injunction is warranted. No bond is required for this permanent injunction. Forest Park II v. Hadley, 336 F.3d 724, 734 (8th Cir.2003).
Accordingly, based upon the files, records, and proceedings herein, IT IS HEREBY ORDERED:
1. Federal Defendants' Motion for Summary Judgment [Docket No. 70] is GRANTED IN PART and DENIED IN PART as set forth in section 5 below.
2. Motion for Summary Judgment of Intervenor Wisconsin Department of Transportation [Docket No. 73] is GRANTED IN PART and DENIED IN PART as set forth in section 5 below.
3. Plaintiff's Motion for Summary Judgment [Docket No. 78] is GRANTED IN PART and DENIED IN PART as set forth in section 5 below.
4. Intervenor State of Minnesota Department of Transportation's Motion for Summary Judgment [Docket No. 87] is GRANTED IN PART and DENIED IN PART as set forth in section 5 below.
5. a. Count I, Violations of WSRA and the APA by NPS and FHWA based on the claim that the Proposed Bridge project creates a new transportation corridor without restoring the existing corridor to natural conditions in violation of the CMP, is DISMISSED.
b. Judgment is entered in favor of Plaintiff on Count II, Violations of the WSRA and the APA against NPS based on the claim that NPS's 2005 Section 7 Evaluation wrongly concluded that the Proposed Bridge project would not have a direct and adverse effect on the Lower St. *996 Croix's scenic, recreational, wildlife, and other natural values.
c. Count IV, Violations of the WSRA, Organic Act, General Authorities Act, and the APA by NPS based on the claim that NPS's approval of the Proposed Bridge is contrary to the non-degradation and non-impairment policies promulgated under those statutes, is DISMISSED.
d. Count V, Violations of the WSRA and the APA by NPS based on the claim that NPS's grant of a new right-of-way for the Proposed Bridge does not protect the qualities for which the Lower St. Croix was designated a wild and scenic river, is DISMISSED.
e. Count VI, Violations of the Transportation Act and the APA by FHWA, based on the claim that FHWA violated Section 4(f) of the Transportation Act by approving the Proposed Bridge without adequately considering alternatives that could have avoided use of the Lower St. Croix Riverway and approving a project that does not minimize harm to the Riverway, is DISMISSED.
f. Count VII, Violations of NEPA and the APA by FHWA based on the claim that FHWA violated the NEPA due to inadequacies in the EISs and ROD is DISMISSED.
6. Defendants Ken Salazar, Secretary of the Interior, and Jonathan B. Jarvis, Director of the National Park Service, are declared to have violated the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq.; and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), in issuing a Section 7 Evaluation in October 2005 ("2005 Section 7 Evaluation") approving construction of a four-lane highway bridge (the "Proposed Bridge") over the Lower St. Croix River.
7. The 2005 Section 7 Evaluation is VACATED.
8. Defendants Ken Salazar, Secretary of the Interior, and Jonathan B. Jarvis, Director of the National Park Service, are permanently enjoined from authorizing, funding, or otherwise assisting in the construction of the Proposed Bridge unless and until a new Section 7 Evaluation is issued that complies with the dictates of this Memorandum of Law and Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] Pursuant to Federal Rule of Civil Procedure 25(d), Victor Mendez is automatically substituted for former Acting Deputy Administrator Jeffrey F. Paniati.
[2] Pursuant to Federal Rule of Civil Procedure 25(d), Jonathan B. Jarvis is automatically substituted for former Acting National Park Service Director Daniel N. Wenk. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2405209/ | 551 F.Supp.2d 320 (2008)
SECURITIES and EXCHANGE COMMISSION, Plaintiff,
v.
Moises Saba MASRI, Defendant.
No. 04 Civ. 1584(RJH).
United States District Court, S.D. New York.
April 30, 2008.
*321 Alan M. Lieberman, Nina B. Finston, Paul R. Berger, Ryan Farney, U.S. Securities and Exchange Commission, Washington, DC, for Plaintiff.
Roger Ryan Crane, Jr., Nixon Peabody LLP, New York, NY, for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD J. HOLWELL, District Judge.
Defendant Moises Saba Masri ("Defendant") has moved to withdraw his demand for a jury trial pursuant to Rule 39 of the Federal Rules of Civil Procedure. Plaintiff, the Securities and Exchange Commission ("SEC"), opposes the motion, arguing that it has justifiably relied on the Defendant's initial demand for a jury trial. (Pl.'s Mem. 1.) Defendant maintains that the SEC has not relied upon defendants' demand, as evidenced by scheduling orders drafted by the SEC that specifically note that the request for a jury trial was made by the defendants as well as "at least one" expression of dissatisfaction allegedly made by the SEC regarding the fact that this case was scheduled for a jury trial. (Def.'s Mem. 2-3.)
DISCUSSION
It is well established that the right to a jury trial is a fundamental right and that purported waivers are to be "scrutinized with the utmost care." Heyman v. Kline, 456 F.2d 123, 129 (2d Cir.1972) (citations omitted); see also Gargiulo v. Delsole, 769 F.2d 77, 79 (2d Cir.1985) ("[W]aiver is not lightly to be inferred."). Thus, a party may withdraw its demand for a jury trial "only if the parties consent." Fed R. Civ. P. 38(d). This requirement permits a party to rely on a jury demand originally made by an adversary. See DeU'Orfano v. Romano, 962 F.2d 199, 202 (2d Cir.1992) ("A [party] is entitled to rely on [another party's] jury demand to preserve his own right to a jury trial ..."); Rosen v. Dick, 639 F.2d 82, 87 (2d Cir. 1980) ("Undoubtedly, Rule 38 embodies the equitable principles of reasonable reliance..."). In limited circumstances, however, some courts have rejected a party's *322 claims of reasonable reliance in light of conduct indicating strong and clear opposition to a jury trial. See, e.g., Glaxo Wellcome, Inc. v. Genpharm, Inc., No. 96 Civ. 6719,1997 WL 381939, at *1 (S.D.N.Y. July 9, 1997) (allowing withdrawal of jury demand where non-demanding party had "consistently objected to Defendant's demand for a jury trial" by "strongly arguing against any right to a jury trial"); Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1304-05 (9th Cir.1983) (allowing withdrawal where non-demanding party had previously filed motion to strike plaintiffs jury demand).
The SEC's conduct here does not preclude a finding that it reasonably relied on Defendant's jury demand. Defendant cites two examples of conduct that allegedly demonstrate the SEC's lack of reliance. First, Defendant emphasizes the language used in scheduling orders drafted, at least in part, by the SEC; these orders stated "defendants have requested a jury trial" and "Sutton requests a jury trial."' (Def.'s Mem. 2-3.) The Court does not interpret the SEC's practice of noting the origin of the request for a jury trial in this case as indicative of the SEC's reliance or nonreliance on that request. Second, Defendant alleges that, at a December 10, 2004 scheduling conference, the SEC's counsel expressed "unhappiness and dissatisfaction" with the fact that this case was scheduled for trial. (Id. at 3, 6.) The SEC disputes making any statement indicating unhappiness or dissatisfaction with Defendant's jury trial request. (Pl.'s Mem. 3.) There is no such statement in the record, nor does the Court have any independent recollection thereof. See Tray-Wrap, Inc. v. Six L's Packing Co., Inc., 984 F.2d 65, 68 (2d Cir.1993) (declining to rely on statements made during conference call, without a court reporter present, as evidence that party had waived its right to trial).
Even accepting Defendant's assertion, the SEC's conduct would not support a finding that it did not reasonably rely on Defendant's jury demand. The cases in which courts have rejected a party's claims of reliance involve explicit, forceful opposition as evidenced by consistent resistance, on the record, to a jury trial, for example, motions to strike the jury demand. See Glaxo Wellcome, Inc., 1997 WL 381939, at *l-2 (finding no reliance where non-demanding party consistently objected to, and strongly argued against, jury trial); Reid Bros. Logging Co., 699 F.2d at 1304-05 (finding no reliance where non-demanding party moved to strike opposing party's jury demand). Here, the SEC has engaged in no such opposition, and is therefore found to have relied on Defendant's jury demand.
Defendant's motion to withdraw his demand for a jury trial [56] is DENIED.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2356076/ | 940 F. Supp. 566 (1996)
Gary A. WILLIAMS, Plaintiff,
v.
John P. KEANE, Superintendent, Dr. S. Kapoor, Medical Director, Dr. Shapiro, Staff Physician (Podiatrist), and Dr. Dyett, Staff Physician, Defendants.
91 Civ. 6072(JES).
United States District Court, S.D. New York.
September 13, 1996.
*567 Gary A. Williams, Auburn, NY, Pro Se.
*568 Robert Abrams, Attorney General of the State of New York, New York City, Robert F. Bacigalupi, Assistant Attorney General, of counsel, for Defendants.
MEMORANDUM OPINION AND ORDER
SPRIZZO, District Judge:
Pursuant to 42 U.S.C. § 1983, plaintiff Gary A. Williams, appearing pro se, brings the above-captioned action against defendants John P. Keane, Superintendent of the Sing Sing Correctional Facility ("Sing Sing"); Dr. S. Kapoor, Sing Sing Medical Director; and Sing Sing staff physicians Drs. Shapiro and Dyett (collectively "defendants"). Williams claims he was deprived of, inter alia, his Eighth Amendment right to be free from cruel and unusual punishment when defendants failed to provide him with a specific type of shoe insert to remedy his foot condition. Pursuant to Federal Rule of Civil Procedure 56, plaintiff moves and defendants cross-move for summary judgment. For the reasons that follow, plaintiff's motion is denied, and defendants' motion is granted.
BACKGROUND
Beginning in 1981 and at all times relevant herein, plaintiff Gary A. Williams was incarcerated at various facilities of the New York State Department of Correctional Services ("DOCS"). During his incarceration, plaintiff sought and received treatment from institutional medical personnel for foot discomfort resulting from fallen arches. Complaint ("Compl.") at 3; Deposition of Gary A. Williams Dated February 4, 1993 ("Williams Dep.") at 5. Plaintiff described this discomfort as a "constant aching in [his] feet" or ankles which is alleviated when he is off his feet. Williams Dep. at 40. Plaintiff's foot condition impairs his ability to play basketball, walk uphill, exercise and withstand cold temperatures for extended periods of time. Id. at 5, 11, 14, 24.
Between 1981 and 1983, plaintiff was incarcerated in Auburn Correctional Facility ("Auburn") where he sought further treatment for his feet. Williams Dep. at 5-6. To remedy his pain, the medical staff at Auburn issued plaintiff three to four pairs of foam rubber "Dr. Scholl's" type arch supports. Id. at 9-10. Plaintiff found these inserts unsatisfactory because they provided only temporary relief. Id. at 12-13.
From 1983 to April 1988, plaintiff was incarcerated at Easton Correctional Facility ("Easton"). At Easton, plaintiff was treated by a staff physician who issued plaintiff a pair of soft-foam orthotic shoe inserts to be worn inside special soft-soled boots. Williams Dep. at 6, 14-15. In addition, plaintiff was provided with a backboard for his bed designed to alleviate his back pain by relieving back and hip pressure. Id. at 14. Plaintiff concedes that the backboard "relieved some of the pain," Compl. at 4, but alleges that these orthotics "didn't work." Williams Dep. at 12. Plaintiff was also granted an exception to Easton dress regulations, permitting him to wear sneakers at his job in the print shop to accommodate his foot problem. Id. at 14. Easton's policy of allowing plaintiff to wear sneakers instead of boots while working in the print shop also helped alleviate his discomfort. Id.
From April 1988 to November 1989, plaintiff was incarcerated at Great Meadows Correctional Facility ("Great Meadows"). Williams Dep. at 8. At Great Meadows, a staff physician issued plaintiff another pair of orthotics. Id. at 12. After these orthotics had worn out, in May 1988 the treating physician provided plaintiff with a new pair of leather and metal bilateral orthotics to wear with special boots. Id. at 11-12. These orthotics were manufactured and fitted by a company named Orthotics Systems, Inc. located in Glens Falls, New York. Id. at 18-20. When plaintiff used these orthotics, his foot "problem disappeared." Id. at 6, 15, 17-18.
By about December 1989, plaintiff had worn out these orthotics. Plaintiff's Letter dated February 26, 1991. Great Meadows physicians then referred plaintiff to a hospital for examination of his feet. Williams Dep. at 41. During this visit, the examining physician indicated that surgery could remedy his pain. Id. However, after discussing the possibility of surgery with the physician, plaintiff refused to undergo the procedure on *569 the basis that he "was still kind of young" and that he did not want to suffer any resulting loss of mobility. Id.
Thereafter, in late 1989 plaintiff was transferred to Sing Sing where he began to experience pain again. Williams Dep. at 8, 18, 20. Plaintiff was seen by a Sing Sing nurse, who referred him to a Sing Sing physician, who referred plaintiff to Sing Sing podiatrist Dr. Shapiro. Id. at 21. On April 2, 1990, Dr. Shapiro treated plaintiff's foot pain with a customized shoe insert constructed by augmenting a leather and cushion orthotic with adhesive cotton padding supporting the arch. Id. at 21-25. On May 21 and 22, June 7 and July 2, 1990, plaintiff complained that the orthotics were not satisfactory. Id. at 23. Plaintiff alleges that in September and again in November 1990, Dr. Shapiro examined plaintiff and ordered special orthotics which plaintiff never received. Id. Plaintiff learned that those orders were not filled because the previous vender, EM Orthotics, had ceased supplying Sing Sing, which was seeking to find a replacement vendor. Plaintiff's Memorandum of Law filed January 6, 1992 (unpaginated) ("Pltff.Mem.") at 7. Thereafter, Dr. Shapiro treated plaintiff on May 13, 1991 and again on June 17, 1991. Williams Dep. at 26.
On September 13, 1990, Williams sent a letter to the Chief Administrator for Medical Services at Sing Sing, copied to defendant Keane, detailing his foot problems and his inability to secure orthotics from EM Orthotics. Pltff. Mem. at 7. Plaintiff requested transfer to Great Meadows, the only facility which provided complete treatment for his foot problem. Id. By letter dated October 3, 1990, a DOCS official responded that an appointment was being scheduled to fit Williams with custom orthotics. Id. at 8.
On October 11, 1990, Williams filed an Inmate Grievance Complaint alleging that the Sing Sing medical staff had failed to treat his symptoms. Plaintiff requested immediate treatment, or in the alternative, transfer to Great Meadow. Pltff. Mem. at 9.
On January 10, 1991, Superintendent Keane resolved the grievance, noting plaintiff had failed to appear for the shoe fitting scheduled for October 30, 1990, and rescheduling the fitting.[1] Pltff. Mem. at 11. Thereafter, plaintiff was measured on November 9 and December 7, 1990 by Sing Sing orthopedist Dr. S. Sarnochie and issued orthopedic shoes on December 7, 1990. Id.; Williams Dep. at 28. On February 6, 1991, plaintiff returned to Dr. Sarnochie to receive inserts for the shoes. Williams Dep. at 29. At that time, plaintiff complained that the shoes and the inserts were a size too large. Id. Dr. Sarnochie took back the shoes and inserts which did not fit. Id.
On January 31, 1991, Williams filed a second Inmate Grievance Complaint alleging that he had been issued a pair of boots which were too large and lacked the support or corrective features of his previous pair of boots. Pltff.Mem. at 12. Plaintiff sought the immediate issuance of medically prescribed boots with arch supports. Id. Thereafter, on February 20, 1991, Superintendent Keane resolved the second grievance, noting that plaintiff's February 6, 1991 appointment had been unsuccessful because plaintiff had failed to wear socks. Id. at 13. As a result, Keane scheduled another fitting in order to resolve the problem. Id.
On May 13, 1991 and June 17, 1991, Dr. Shapiro again treated plaintiff for foot pain. Williams Dep. at 26. According to plaintiff, Dr. Shapiro failed to provide substitute orthotics or to prescribe any medication for plaintiff's condition. Id. In addition, plaintiff alleges that on August 7, 1991, Sing Sing staff physician Dr. Dyett refused plaintiff's request for a special permit for a metal bed to alleviate his back pain. Plaintiff's Notice of Motion filed July 2, 1993 ("Pltff.Not.Mot.") at 2. Plaintiff asserts that Dr. Dyett made this decision based upon an a 1986 X-ray indicating no abnormalities of plaintiff's spine. Id.
On September 10, 1991, plaintiff filed the instant Complaint claiming that his rights under the Eighth Amendment had been violated. Plaintiff alleges that defendants' failure to provide him with a specific combination *570 of arch supports and boots violated his Eighth Amendment rights and forced his family to "take on the burden of providing [his] medical needs at their expense" in May 1991.[2] Plaintiff requests that the Court direct defendants to supply him with arch supports and boots made by Orthotics Systems, Inc. Compl. at 4-5. In addition, plaintiff seeks compensation to his family for their expense in providing him footwear and arch supports from January 1991 until he receives medically prescribed arch supports and boots. Id. at 5. Plaintiff also seeks $250,000 in punitive damages, and court costs.[3]See id.; Plaintiff's Response to First Defense and Answer filed February 25, 1992 (unpaginated) ("Pltff.Resp.") at 5.
Thereafter, on November 4, 1991, plaintiff was transferred to Auburn. Pltff.Resp. at 11. At Auburn in September or October of 1992, plaintiff was fitted with a pair of orthotics and was issued a pair of special "new balance" shoes. Williams Dep. at 37. Plaintiff admits that he is satisfied with these orthotics which improve his condition and alleviate his pain, enabling him to perform his job laminating desks and to stand up to an hour at a time. Id. at 30, 36. Plaintiff asserts that he is receiving regular treatment at Auburn, and as a result "I don't have those, that severe problem anymore." Id. at 32.[4]
DISCUSSION
Summary judgment is appropriate where "there is no genuine issue as to any fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 106 S. Ct. 2505, 2509-12, 91 L. Ed. 2d 202 (1986). On a motion for summary judgment, the moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). On the other hand, a party opposing a motion for summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Rather, the party must enumerate "specific facts and circumstances supported by depositions, affidavits based on personal knowledge, and admissions," and cannot rely upon conclusory allegations or denials. General Elec. v. New York State Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir.1991).
To succeed in asserting his Eighth Amendment claim, plaintiff must establish that defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). Deliberate indifference must have both a subjective and an objective component. See Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).
In this case, however, there is no rational basis for an inference of deliberate indifference. Plaintiff does not even allege that defendants acted in bad faith or that they intentionally deprived him of, or delayed his access to, effective medical treatment, and there is no evidence rationally supporting such a finding. On the contrary, it is clear, and indeed undisputed, that since the beginning of his incarceration in 1981, plaintiff was afforded consistent, attentive medical care on a regular basis in an effort to remedy his foot pain. Thus, plaintiff was provided with, inter alia, four pairs of arch supports at Auburn between 1981 and 1982, Williams Dep. at 6, 10; a pair of soft-foam orthotics to *571 use inside special issue soft-soled boots at Easton between 1983 and 1988, id. at 6, 14; a special bed backboard at Easton which relieved back and hip pressure, id. at 14; leather and metal orthotics at Great Meadow in or about 1988, id.; leather and cushion orthotics constructed by a podiatrist at Sing Sing in 1990, id. at 26; special boots ordered by an orthopedist at Sing Sing in 1990, id. at 26; and "new balance" sneakers specifically designed for plaintiff as well as a pair of orthotics at Auburn. Id. at 26, 37. In addition, plaintiff was taken to an outside hospital for consultation and offered the option of surgery to alleviate his symptoms, which he refused.[5]Id. at 41.
It is clear that, even given the most generous reading, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (1972), plaintiff has failed to come forward with any evidence supporting a finding of cruel and unusual punishment, establishing that defendants' conduct was "repugnant to the conscience of mankind" or incompatible with the "evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 102, 106, 97 S. Ct. at 290, 292 (citations and internal quotations omitted). It follows that defendants are entitled to summary judgment.
That conclusion is further supported by the fact that plaintiff has no constitutional interest in being treated at a particular facility or by a specific physician. See Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir.1988); c.f. Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992) (the constitution does not contemplate that prisoners receive unfettered access to medical care). Nor is plaintiff's disagreement as to the appropriate course of treatment sufficient to establish an Eighth Amendment claim. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986); Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir.1981); Arce v. Banks, 913 F. Supp. 307, 310 (S.D.N.Y.1996); Ross v. Kelly, 784 F. Supp. 35, 44-45 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040, 113 S. Ct. 828, 121 L. Ed. 2d 698 (1992). By claiming that defendants failed to satisfy his request for a specific type of orthotics, plaintiff is at best complaining that he was not given the particular type of shoe he wanted. That Dr. Dyett did not order a recent X-ray prior to denying his request for a special bed permit is in essence a dispute about a medical decision. These are at best malpractice claims which are clearly not sufficient.[6]See Estelle, 429 U.S. at 107, 97 S. Ct. at 292 ("medical decision not to order an X-ray, or like measure, does not represent cruel and unusual punishment"); Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y.1984), aff'd, 762 F.2d 990 (2d Cir.1985).[7]
The claim that plaintiff had to wait several months before his orthotics were supplied due to administrative delay in securing a vendor likewise do not implicate plaintiff's constitutional rights, especially since plaintiff concedes that a significant portion of the delay in receiving the orthotics was caused by the withdrawal of the prison vendor EM Orthotics and the search for a replacement vendor. See Bryant v. Maffucci, 923 F.2d 979, 983-85 (2d Cir.), cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991) (administrative delay in scheduling a medical procedure caused by negligence does not constitute deliberate indifference). Nor were plaintiff's due process rights violated when he was arguably deprived of prompt treatment for his medical complaints. Such delay does not and cannot implicate plaintiff's procedural due process rights where, as here, plaintiff pursued the prison grievance procedure *572 and received two prompt responses scheduling two orthopedic fittings.[8]
In any event, even assuming, arguendo, a constitutional violation occurred, plaintiff's request for injunctive relief must be rejected as moot since plaintiff has been issued orthotics which he concedes adequately alleviated his pain and discomfort. In addition, plaintiff's request for money damages in connection with defendants' actions taken in their official capacities is barred by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 663-75, 94 S. Ct. 1347, 1355-62, 39 L. Ed. 2d 662 (1974); Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993).
Furthermore, qualified immunity protects defendants from liability for damages in their individual capacity. Qualified immunity shields government employees from liability for conduct which is objectively reasonable and "does not violate clearly established ... constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987) (citations omitted).
Here, defendants' conduct in attempting to remedy plaintiff's foot discomfort was objectively reasonable. Plaintiff was seen by Dr. Shapiro on at least five different occasions. Moreover, Keane responded promptly to plaintiff's complaints by scheduling appointments to fit orthotics, and both orthotics and special boots were in fact requisitioned and fitted on numerous occasions for plaintiff. As set forth above, plaintiff has not alleged that defendants acted with bad faith. Nor has plaintiff set forth any case even now recognizing a § 1983 claim on similar facts. Indeed, at the relevant time, the law recognized that decisions as to the appropriate course of medical treatment, even if negligent, did not implicate a prisoner's constitutional rights. See Estelle, 429 U.S. at 107, 97 S. Ct. at 292. It follows that all defendants are at the very least entitled to qualified immunity.
CONCLUSION
For the reasons stated above, plaintiff's motion is denied, and defendants' cross-motion is granted. The Clerk of Court is directed to enter judgment accordingly and close the above-captioned action.
It is SO ORDERED.
NOTES
[1] Plaintiff indicates that he did not attend the October 30, 1990 appointment because he had not been informed of the appointment until after the fact. Pltff.Resp. at 10.
[2] Plaintiff does not specify in what way his family provided for his medical needs or at what expense.
[3] Because plaintiff proceeded in forma pauperis, see Order dated September 10, 1991, his request that the Court award him court costs is without merit.
[4] In his complaint, plaintiff alleged that he has "recently noticed a growth or lump on the bottom of my right foot where the arch should be." Compl. at 5. However, plaintiff later admitted that the growth, described as a callus, has disappeared. Williams Dep. at 38.
[5] Dr. Shapiro's failure to prescribe pain medication does not support a finding of cruel and unusual punishment, especially where, as here, plaintiff does not allege that he requested such medicine.
[6] Indeed, plaintiff in his January 31, 1991 Inmate Grievance Complaint describes his complaint as one of "medical negligence." Pltff. Mem. at 12.
[7] In addition to experiencing a recurrence of his leg and back pain, plaintiff also began to experience colds and flu-like symptoms. See Pltff.Resp. at 6-7. The claim that the treatment provided by Sing Sing's medical personnel Tylenol, Corinciden, aspirin, cough syrup and nasal spray were constitutionally deficient is not worthy of serious consideration. See Estelle, 429 U.S. at 106, 97 S. Ct. at 292.
[8] The claims against defendant Dr. S. Kapoor, Sing Sing Medical Director, must also be rejected on the ground that plaintiff has alleged no factual basis affording a rational inference that Dr. Kapoor had any personal involvement in the violation. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Indeed, Dr. Kapoor is named only in the caption of the instant complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2357522/ | 243 P.3d 338 (2010)
STATE of Kansas, Appellee,
v.
Issac DUNCAN, Appellant.
No. 99,463.
Supreme Court of Kansas.
November 19, 2010.
*339 Heather Cessna, of Kansas Appellate Defender Office, argued the cause, and Sarah Morrison, of the same office, was on the brief for appellant.
David Lowden, Assistant District Attorney, argued the cause, and Kristi L. Barton, Assistant District Attorney, Nola Tedesco Foulston, District Attorney, and Steve Six, Attorney General, were on the briefs for appellee.
The opinion of the court was delivered by BILES, J.:
Issac Duncan seeks review of a Court of Appeals decision affirming his upward durational departure sentence ordered after a plea agreement. He argues the departure sentence is illegal because the trial court did not empanel a jury to determine whether aggravating factors existed to justify the upward departure as required by K.S.A. 21-4718 and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The issue is whether Duncan waived the right to have a jury make this determination. The Court of Appeals held Duncan waived this right during the plea hearing, even though he was never informed that he had a right to a jury determination on this issue. We disagree with the Court of Appeals panel. We find Duncan did not make a constitutionally valid waiver because he was not informed of this right in the plea agreement or at the plea hearing. We reverse the Court of Appeals and the district court, vacate Duncan's sentence, and remand the case to the district court for resentencing without an upward durational departure.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Duncan severely beat another bar patron. He was charged with aggravated battery, a severity level 4 offense. After Duncan entered into a plea agreement, the State reduced the charge to a severity level 7 offense to which he pleaded guilty. Duncan had a criminal history score of A, which meant his conviction of the severity level 7 offense would have fallen in block 7-A on the *340 nondrug sentencing guideline grid. The presumptive sentencing range for this block is 34-32-30 months' imprisonment. K.S.A.2003 Supp. 21-4704.
But the plea agreement was based upon a different recommended sentence. Duncan agreed to an underlying upward durational departure to 48 months' imprisonment in exchange for a downward dispositional departure to probation. The terms of the plea agreement did not explicitly state Duncan was waiving his right to have a jury determine whether any aggravating factors existed to permit an upward durational departure. The plea agreement contained the following two waivers regarding jury determinations:
"I have a right to a trial where my guilt or innocence on all of the criminal charges against me would be determined by a jury, or if I choose to waive a jury, by a judge.
. . . .
"At such trial it would be the burden of the State of Kansas to prove my guilt beyond a reasonable doubt on each element of the charge(s) against me before I could be found guilty."
At the plea hearing, the district court informed Duncan that by pleading guilty he was relinquishing the following rights: (1) his right to a trial; (2) his right to raise any defenses to the charge; (3) his right to have the State prove each offense; (4) his right to compel witness testimony; and (5) his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential sentence and that the court was not bound by the agreement. The district court did not state Duncan had a right to a jury determination of the aggravating factors to justify an upward durational departure sentence.
The district court imposed both of the previously agreed-to departure sentences. It held the upward departure recommended in the plea agreement was justified because Duncan's sentence was already significantly reduced by the bargained-for amendment to the charge, making it a severity level 7 offense instead of a severity level 4 offense.
The waiver challenge arose later after Duncan's probation was revoked and he was ordered to serve the 48-month sentence. Duncan timely appealed the probation revocation to the Court of Appeals, challenging whether the previously agreed-to upward durational departure was legal because he did not explicitly waive his right to have a jury determine whether there were aggravating factors to invoke that departure. The panel held Duncan waived this right but did so without distinguishing between Duncan's explicit waiver of his right to have a jury find him guilty as charged beyond a reasonable doubt and the separate right identified in Apprendi to have a jury find the aggravating factors upon which an upward durational departure could be based. State v. Duncan, No. 99,463, 2009 WL 398985, unpublished opinion filed February 13, 2009, slip op. at 2-3. The panel simply held:
"[A]t Duncan's plea hearing, the trial court notified Duncan of his right to a jury trial and determined that Duncan knowingly, willingly, and voluntarily waived his rights, including his right to a jury. At that hearing, Duncan agreed to the recommended upward durational departure sentence of 48 months. Duncan waived his right to have a jury find aggravating factors beyond a reasonable doubt during the plea hearing, and Duncan's sentence is, therefore, not illegal. The trial court did not err in sentencing Duncan to the agreed upon 48-month sentence when it revoked Duncan's probation." (Emphasis added.) Slip op. at 3.
The panel dismissed two remaining issues because Duncan failed to timely appeal the initial sentencing orders. Slip op. at 4-5.
Duncan petitioned this court for review, which was granted on the sole issue of whether Duncan waived his right to a jury determination of the aggravating sentencing factors. Jurisdiction is proper under K.S.A. 20-3018(b) (review of a Court of Appeals decision).
ANALYSIS
Standard of Review
We must determine whether Duncan waived his right to have a jury make the determination of the aggravating factors required *341 to support the 48-month upward durational departure sentence. When the facts are undisputed, whether a defendant knowingly and voluntarily waived his right to a jury trial is a question of law subject to unlimited review. See State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006) (holding that factual underpinnings are reviewed for substantial competent evidence, but the ultimate question of a Miranda waiver's voluntariness is a question of law subject to de novo review); see also State v. Carter, 278 Kan. 74, 77-78, 91 P.3d 1162 (2004) (holding a challenge to the Confrontation Clause is reviewed de novo when the facts are undisputed); State v. Sykes, 35 Kan. App. 2d 517, 522-23, 132 P.3d 485, rev. denied 282 Kan. 795 (2006) (whether a defendant knowingly and voluntarily waived the right to a jury trial is reviewed de novo when facts are undisputed).
Jurisdiction
Before reaching the merits of the issue, we must consider the State's challenge to this court's jurisdiction to consider Duncan's appeal. The State first argues that state law bars review of "any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record." K.S.A. 21-4721(c)(2). But this court has stated in dicta that "[w]here K.S.A. 21-4721 applies, an appellate court's jurisdiction to consider a challenge to a sentence is limited to those grounds authorized by the statute or a claim that the sentence is otherwise illegal." (Emphasis added.) State v. Ware, 262 Kan. 180, Syl. ¶ 2, 938 P.2d 197 (1997). In addition, the Court of Appeals has held that sentences resulting from a plea agreement can be appealed if they are illegal. See, e.g., State v. Boswell, 30 Kan. App. 2d 9, 11, 37 P.3d 40 (2001). We have cited those decisions with approval. See State v. Santos-Garza, 276 Kan. 27, 31-32, 72 P.3d 560 (2003); State v. Cullen, 275 Kan. 56, 58-60, 60 P.3d 933 (2003).
The State further argues Duncan's sentence is not illegal because K.S.A. 21-4718 is not an illegal sentencing scheme, citing Cullen. In Cullen, this court held the previous departure sentence statute, K.S.A.2001 Supp. 21-4716(a), was unconstitutional on its face because it allowed the trial judge to impose an upward departure sentence without empanelling a jury to determine whether any substantial and compelling reasons support a departure. 275 Kan. at 61, 60 P.3d 933. Our decision was based on Apprendi, which held that any factor used to enhance a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490, 120 S. Ct. 2348. To comply with Apprendi, the Kansas Legislature enacted K.S.A. 21-4718. See L.2002, ch. 170, sec. 2(b); Cullen, 275 Kan. at 61, 60 P.3d 933.
As the State points out, the statute is now constitutional in this respect, but that has no bearing on the issue in this case, i.e., whether Duncan waived the right to have a jury determine whether aggravating factors existed to support an upward durational departure sentence. The State's arguments are without merit. We find this court has jurisdiction to review a sentence that is challenged as being illegal.
Jury Trial Waiver
Turning now to the waiver challenge, it must be acknowledged that Duncan has a right to have a jury determine whether aggravating factors exist before the sentencing court may order an upward durational departure sentence. This right was originally established in Apprendi and then codified in K.S.A. 21-4718(b). But it also is undisputed that a defendant can waive this right. K.S.A. 21-4718(b)(4) states the trial judge may conduct the upward departure sentence proceedingif the right to a jury is waived in the manner required by K.S.A. 22-3403. This provision is consistent with the United States Supreme Court's decision recognizing a defendant may waive the right to have a jury determine the upward departure factors. Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see State v. Horn, 291 Kan. ___, Syl. ¶¶ 2-4, 238 P.3d 238 (2010). The question is whether Duncan waived his right to have a jury determine the aggravating sentencing factors that were a necessary element to find before *342 imposing an upward durational departure of 48 months.
In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. State v. Shopteese, 283 Kan. 331, 340-41, 153 P.3d 1208 (2007). Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. See Horn, 291 Kan. at ___- ___, 238 P.3d 238. Duncan needed to understandand the record needs to demonstratewhat specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.
At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.
Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a jury determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant's favor. State v. Patton, 287 Kan. 200, 228, 195 P.3d 753 (2008). Under this standard, the plea agreement's language would not be enough to constitute a waiver as written.
In Horn, we held that "[a] waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure sentence proceeding." 291 Kan. at ___, 238 P.3d 238. Applying Horn to this case, we find Duncan did not make a constitutionally valid waiver of his right to a jury determination of the aggravating sentencing factors.
We also held in Horn that K.S.A. 21-4718(b)(4) does not permit the district court to empanel a jury solely for the purpose of conducting upward durational departure proceedings when the defendant has pleaded guilty or no contest. 291 Kan. at ___- ___, 238 P.3d 238. Accordingly, in Horn we found that the failure to obtain a constitutionally valid waiver of a defendant's right to a jury determination of the aggravating factors necessarily precluded the district court from conducting the upward durational departure proceeding. 291 Kan. at ___, 238 P.3d 238 ("[I]f the defendant has not waived his or her right to a jury for the upward durational departure sentence proceeding, a court-ordered departure proceeding violates... constitutional mandates...."). Further applying Horn to this case, we find Duncan's sentence must be vacated and the case remanded to the district court for resentencing without an upward durational departure because the statute does not permit the district court to empanel a jury solely to consider Duncan's aggravating factors.
We reverse the Court of Appeals and the district court on the issue subject to our review, Duncan's sentence is vacated, and *343 case is remanded to the district court with directions for resentencing.
DAVIS, C.J., not participating.
MICHAEL F. POWERS, District Judge, assigned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2357554/ | 243 P.3d 1014 (2010)
Steven L. CHASE, Appellant,
v.
STATE of Alaska, Appellee.
No. A-10433.
Court of Appeals of Alaska.
December 3, 2010.
Rehearing Denied December 30, 2010.
*1015 Robert John, Law Office of Robert John, Fairbanks, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
OPINION
MANNHEIMER, Judge.
Steven L. Chase was driving in Fairbanks when a state trooper pulled him over because Chase was not wearing his seatbelt. During this traffic stop, the officer discovered that Chase should not have been driving at all; Chase's driver's license was canceled. Chase was subsequently convicted of driving with a canceled driver's license and driving without his seatbelt fastened.[1] He appeals his convictions, arguing three different theories as to why his convictions are unlawful.
Chase first argues that Alaska's seatbelt law is unconstitutional because it is an unjustified infringement of the rights of personal autonomy and liberty guaranteed by Article I, Section 1 of the Alaska Constitution.
Chase next argues that, even if Alaska's seatbelt law is constitutional as a general matter, the police officer in Chase's case engaged in an unreasonable seizure (that is, a seizure in violation of the Fourth Amendment to the federal Constitution and Article I, Section 14 of the Alaska Constitution) when the officer pulled Chase over to give him a citation for failing to wear his seatbelt.
Chase acknowledges that, under AS 12.25.030(a) and AS 12.25.180(b), police officers have the authority to arrest or issue a citation to any person who commits an offense in their presence. Chase nevertheless argues that this authority to arrest or to cite must be exercised "reasonably", because the Constitution forbids unreasonable seizures.
According to Chase, even when a police officer has probable cause to believe that an individual has violated the law, the search-and-seizure provisions of the federal and state constitutions require courts to determine, on a case-by-case basis, whether the police seizure of that individual was "reasonable" by weighing (1) the government's interest in enforcing that particular law against (2) the individual's interest in liberty and privacy. With regard to his particular case, Chase contends that the police officer's decision to stop him was unreasonable because the government had only a negligible interest *1016 in enforcing the seatbelt law, while Chase had a significant personal interest in not being detained by the police.
Finally, Chase argues that even if the seatbelt statute is constitutional as a general matter, and even if the traffic stop of Chase's vehicle was reasonable for purposes of the search-and-seizure clause, the police officer's act of stopping Chase was a "pretext" stop, and thus all evidence obtained during that stop must be suppressed.
For the reasons explained here, we conclude that none of Chase's claims has merit, and we therefore affirm his convictions.
Whether Alaska's seatbelt law infringes the rights of personal liberty, autonomy, and privacy guaranteed by the Alaska Constitution
We first address Chase's argument that the seatbelt law is unconstitutional as a general matter. Chase contends that whatever governmental interest there may be in having people wear seatbelts is outweighed by the rights of personal liberty and autonomy guaranteed by Article I, Section 1 of the Alaska Constitution.
Article I, Section 1 of our state constitution declares that "all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry". In Breese v. Smith, 501 P.2d 159, 168-172 (Alaska 1972), the Alaska Supreme Court interpreted this provision as guaranteeing a certain level of personal autonomy, and as creating a sphere of personal activities and choices that are presumptively immune from government interference or regulation.
Chase argues that Article I, Section 1 protects his right to travel without police interference, his right to personal privacy, and his right to be free from unreasonable seizure.
We are not convinced that Article I, Section 1, standing alone, should necessarily be interpreted to protect all three of the interests that Chase has identified (right to travel, right to privacy, and right to be free of unreasonable seizure) since two of these interests (privacy, and the right to be free from unreasonable seizure) are explicitly covered by other provisions of our state constitution. Article I, Section 22 guarantees a right of privacy, while Article I, Section 14 prohibits unreasonable searches and seizures. But in any event, we acknowledge that Chase has identified three constitutionally protected interests.
Chase contends that a person's decision whether to wear a seatbelt is a personal and private choice akin to a person's choice of hairstyle a choice that the Alaska Supreme Court declared to be protected under Article I, Section 1 in Breese v. Smith. Chase further argues that the government has no significant interest in making people wear seatbelts when they drive (or ride in) motor vehicles. Chase contends that the seatbelt law has not made any discernible improvement in public safety, and he further contends that the Alaska Legislature's main motivation for enacting this law was to make sure that Alaska remained eligible for federal highway funds.
However, the record shows that when the legislature first enacted the seatbelt law, the legislature was presented with ample testimony and documentary evidence indicating that the law would increase seatbelt use, would prevent injuries, and would save lives and money. As a general rule, it is not an appellate court's role to strike down legislation simply because one might reasonably argue that the legislation was misguided, or simply because it appears that legislation may not have accomplished all of its intended goals. As this Court explained in Dancer v. State:
We may not concern ourselves with the wisdom of legislation. Our role is much more modest. We evaluate the legislation to determine whether it contravenes any prohibitions in the constitution. If it does not, we must uphold the legislation. Policy arguments advocating changes to constitutional legislation must be addressed to the legislature, not the courts.
715 P.2d 1174, 1176 (Alaska App.1986).
This leaves Chase's argument that, whatever legitimate government interest there might be in having people wear seatbelts, that interest is outweighed by the individual's interest in personal autonomy and privacy. *1017 But the Alaska Supreme Court rejected a similar "personal privacy" argument in Kingery v. Chapple, 504 P.2d 831, 835-37 (Alaska 1972), a case in which the supreme court upheld the constitutionality of Department of Public Safety regulations that required motorcycles to have various types of safety equipment, and which required motorcycle riders to wear a helmet.
In rejecting this privacy claim, the supreme court distinguished its earlier decision in Breese v. Smith (dealing with the government's attempted regulation of a student's hairstyle choice). The supreme court declared that the challenged motorcycle regulations did not constitute an "invasion of privacy" because those regulations were supported by "compelling state interests in providing for [the] safety of the traveling public". Kingery, 504 P.2d at 835 n. 6.
When the seatbelt law was under consideration by the legislature, several highway safety experts told the legislature that a seatbelt law which authorized police officers to stop motorists for not wearing seatbelts was an effective measure for reducing the number of deaths and serious injuries from highway accidents. Chase has failed to offer a persuasive rebuttal to that testimony.
For these reasons, we reject Chase's argument that Alaska's seatbelt law unlawfully infringes the rights of personal liberty, autonomy, and privacy guaranteed by the Alaska Constitution.
Chase's contention that, even if the seatbelt law is constitutional as a general matter, trial courts are still obliged to determine, on a case-by-case basis, whether a particular traffic stop for an observed seatbelt violation qualifies as "reasonable" for purposes of the search and seizure clauses of the federal and state constitutions
We next turn to Chase's argument that, even if the seatbelt law is constitutional as a general matter, the search and seizure clauses of the federal and state constitutions still require courts to determine, on a case-by-case basis, whether the enforcement of this law by means of a traffic stop (or a full-blown arrest) constitutes an "unreasonable" seizure under the particular circumstances of an individual defendant's case.
Chase acknowledges that in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), the United States Supreme Court held that the Fourth Amendment allows a police officer to arrest a person, even for a minor offense punishable only by a fine, whenever the officer has probable cause to believe that the offense has been committed. In Atwater, the Supreme Court "confirm[ed] ... [that] the standard of probable cause applies to all arrests, without the need to `balance' the interests and circumstances involved in particular situations." Id., 532 U.S. at 354, 121 S. Ct. at 1557.
Chase asserts that his case is different because he was not arrested for the seatbelt violation; rather, he was subjected only to a traffic stop for the seatbelt infraction. (The fact that Chase's driver's license had been canceled was discovered only during this traffic stop.)
In other words, Chase argues that even though the Fourth Amendment allows police officers to arrest drivers for violating the seatbelt law, it does not allow officers to engage in the lesser intrusion of conducting a traffic stop to issue the driver a citation for violating the seatbelt law. We reject this nonsensical construction of the Fourth Amendment.
Chase also argues that the Atwater decision is distinguishable on its facts, because the Texas seatbelt law at issue in Atwater contained an express provision authorizing police officers to arrest any person found violating the seatbelt law. Chase notes that Alaska's seatbelt law does not contain such a provision, and he suggests that, for this reason, Atwater does not support the traffic stop in his case.
But Alaska law contains a general provision AS 12.25.030(a) that authorizes law enforcement officers to arrest a person without a warrant "for [any] crime committed or attempted in the presence of the [officer]". It is true that this authority to conduct a warrantless arrest is limited by AS 12.25.180(b), which declares that when the person's crime is an "infraction" or a "violation" i.e., an offense not punishable by imprisonment the officer must issue a citation *1018 to the offender, in lieu of making an arrest, unless the person fails to provide satisfactory evidence of their identity or unless the person refuses to accept the citation and promise to appear in court. But even so, it is clear that whenever a police officer observes a person breaking the law in their presence, Alaska law authorizes the officer to detain the person either the temporary detention necessary to issue a citation, or the more substantial detention of a full-blown arrest.
Chase argues in the alternative that, even if his traffic stop was lawful under the Fourth Amendment to the federal Constitution, we should apply a stricter test under the search and seizure provision of the Alaska Constitution Article I, Section 14. Chase contends that this provision of our state constitution requires courts to engage in a case-by-case analysis of the reasonableness of any police stop under the particular circumstances presented in an individual defendant's case.
In making this argument, Chase relies primarily on the type of analysis conducted by the Alaska Supreme Court in State v. Miller, 207 P.3d 541 (Alaska 2009). In Miller, the supreme court evaluated the legality of a police stop by applying the rule first announced in Coleman v. State, 553 P.2d 40 (Alaska 1976) the rule that the police are authorized to conduct brief investigative detentions, based on less than probable cause, only when the police have reasonable suspicion that "imminent public danger exists" or that the person being detained had recently "[caused] serious harm" to persons or property. Coleman, 553 P.2d at 46.
But the Coleman line of cases applies only to situations where the police have no probable cause to make an arrest cases where there is some lesser degree of suspicion, and the question is whether the police were justified in temporarily detaining a suspect or witness to further investigate the matter. The Coleman analysis does not apply when the police already have probable cause to make an arrest. See Joseph v. State, 145 P.3d 595, 600 (Alaska App.2006) ("If [the police] had lawful justification for arresting Joseph when [they] began to chase him, this would allow the State to escape the Coleman strictures on investigative stops.").
Thus, Chase is wrong when he asserts that the supreme court's decisions in Miller or Coleman apply to his case. In Chase's case, the police had probable cause: it is undisputed that the officer observed Chase driving without wearing a seatbelt.
Chase's fall-back position, articulated clearly for the first time at oral argument, is that even though the Coleman analysis was intended to apply only to situations where the police lack probable cause to make an arrest, we should nevertheless interpret the search and seizure clause of the Alaska Constitution to require courts to engage in a Coleman-style analysis in all cases including cases where the police have probable cause to make an arrest.
In essence, Chase asks us to interpret Article I, Section 14 of our state constitution as requiring courts to scrutinize every arrest or traffic stop scrutinize them by weighing the government's interest in enforcing that particular statute or regulation against the defendant's interest in privacy and liberty, and then determining, under the particular circumstances of each individual defendant's case, whether the arrest or traffic stop was "reasonable". Chase argues that, for these purposes, an arrest or a traffic stop is "reasonable" only when, under the circumstances of an individual defendant's case, the public interest in enforcing that particular statute or regulation sufficiently outweighed the defendant's interest in being left alone.
Chase has failed to provide any legal authority to support this proposition the proposition that the search and seizure clause of the Alaska Constitution was intended to give courts the equitable power to declare an arrest or a traffic stop invalid, even though it was supported by probable cause, whenever a judge believes that the government lacked a sufficient interest in enforcing that particular law under the particular facts of the defendant's case.
Moreover, Chase's argument misapprehends the interplay between the search and seizure provision of the Alaska Constitution and the legislature's authority to define *1019 crimes. It is the legislature's prerogative to prohibit conduct by enacting a criminal statute such as the seatbelt law when the legislature believes that this will further the public safety or welfare. The legislature's authority to create criminal offenses is circumscribed by various provisions of the constitution. But if a criminal statute is a valid exercise of legislative power, then the normal rule under Alaska law is that a police officer who observes a person violating the statute is authorized to stop the offender and either make an arrest or issue a citation.
Chase would have the courts invalidate arrests and traffic stops on policy grounds, based on a judge's (or a group of judges') opinion as to whether it was socially worthwhile to enforce that particular law against that particular defendant. We reject this proposed interpretation of Article I, Section 14.
Whether Chase was subjected to a "pretext stop"
In his final attack on his convictions, Chase argues that the police officer's stop of Chase's vehicle amounted to a "pretext" stop. In other words, Chase argues that the officer's announced motivation for stopping him the fact that Chase was not wearing a seatbelt was merely a subterfuge for detaining Chase in order to investigate other matters.
This Court has discussed the doctrine of "pretext" stops in a series of cases, most recently in Morgan v. State, 162 P.3d 636, 638-39 (Alaska App.2007), Grohs v. State, 118 P.3d 1080, 1081-82 (Alaska App.2005), and Nease v. State, 105 P.3d 1145, 1148-1150 (Alaska App.2005).
The United States Supreme Court rejected this doctrine in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), and we have not yet decided whether to adopt the doctrine. However, we have clarified that the doctrine does not apply to all instances where a police officer has an ulterior motive for making a traffic stop. Rather, a traffic stop is a "pretext" only if the defendant proves that, because of this ulterior motive, the officer departed from reasonable police practices by making the stop. Morgan, 162 P.3d at 638; Nease, 105 P.3d at 1148 (citing Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), § 1.4, Vol. 1, pp. 117-18).
Although Chase uses the phrase "pretext stop" to describe his claim on appeal, he is not actually talking about the "pretext" stop doctrine that this Court discussed in Morgan, Grohs, and Nease.
The officer who stopped Chase testified that he was on patrol, working overtime as part of a nationwide "click-it-or-ticket" law enforcement campaign in other words, he was looking specifically for drivers who were not wearing their seatbelts. Thus, the officer had no ulterior motive when he stopped Chase for not wearing a seatbelt. The officer's express motive was to look for drivers who were violating the seatbelt law, and to cite these drivers for this offense.
Chase does not dispute the officer's testimony concerning his patrol duties and his purpose for stopping Chase. Rather, Chase argues that the legislature's purpose for enacting the seatbelt law in the first place was to give police officers a "pretext" for stopping citizens for no good reason, with the hope that the officers might then discover evidence of more substantial crimes.
This is not a normal "pretext stop" argument. Chase does not claim that there was something wrong in his particular case; Chase does not argue that the officer who stopped him was using the seatbelt violation as a subterfuge to mask the officer's true purpose of investigating Chase for some other crime. Instead, Chase argues that there is an underlying flaw in the seatbelt law itself.
The flaw, according to Chase, is that the seatbelt law lacks any true governmental purpose. Chase argues that the seatbelt law does not promote the public health or safety in any substantial way, and that the legislature's only real purpose in enacting this law was to give law enforcement officers the authority to spuriously stop citizens and investigate them for other crimes.
This is essentially a rewording of the claim that we addressed in the first section of this *1020 opinion Chase's argument that the public interest supporting the seatbelt law is so negligible that the law can not be justified as a legitimate legislative act, given the rights of autonomy and privacy guaranteed under the Alaska Constitution.
In that first section of our opinion, we concluded that the seatbelt law was supported by a sufficient public interest to justify its enactment and its concomitant limitation of personal autonomy and privacy. Given that conclusion, we reject Chase's argument that the legislature's real purpose in enacting the seatbelt law was to provide the police with a pretext to stop motorists.
Conclusion
The judgement of the district court is AFFIRMED.
NOTES
[1] AS 28.15.291(a) and AS 28.05.095(a), respectively. | 01-03-2023 | 10-30-2013 |