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2013-10-30 06:32:42.432856+00

Blatt

28 Pa. Commw. 13 (1976) Edward J. Kirk and Eva A. Kirk, husband and wife, individuals, and PBS, Inc., Appellants v. Robert Smay, Borough Manager, Borough of Hellertown, Appellee. No. 891 C.D. 1976. Commonwealth Court of Pennsylvania. Argued October 4, 1976. December 22, 1976. Argued October 4, 1976, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three. *14 Cregg E. Mayrosh, with him Cohn & Mayrosh, for appellants. Donald B. Corriere, with him Haber and Corriere, for appellees. OPINION BY JUDGE BLATT, December 22, 1976: The appellants[1] here filed an action in mandamus with the Court of Common Pleas of Northampton County requesting that the court order Robert Smay, zoning officer of the Borough of Hellertown (Borough), to issue a building permit to them. The court sustained the appellee's preliminary objections, dismissed the complaint and this appeal followed. The appellants wanted to build a medical office building on the premises of an existing shopping center, a permitted use under the Borough's zoning ordinance in the general commercial district here involved.[2] Section 64.6(1) of the ordinance provided, *15 however, that site plan approval was required for this permitted use, and Section 63 of the ordinance provided further as follows: Site Plan Approval for Permitted Uses. Where site plan approval is required for a permitted use in nonresidential districts said site plan shall be submitted to the Planning Commission for approval prior to issuing a building permit. (Emphasis added.) It is clear, therefore, that the appellants were required to obtain site plan approval as a prerequisite to a building permit. The lower court believed that the zoning officer's discretion and duty in regard to the issuance of a building permit was the same whether or not the site plan had been approved, and presumed, for the purpose of making its decision here, that the site plan had been approved by the planning commission. It then found that the building permit had been denied by the zoning officer because the proposed facility did not conform with the parking requirements of the zoning ordinance[3] and ruled that an action in mandamus to compel the issuance of a permit would not lie. It is clear from the evidence in the record that the court below was mistaken, and that the zoning officer here denied the building permit because the appellants had not acquired site plan approval.[4] It is also clear, *16 however, that the planning commission disapproved the appellant's site plan because of its failure to provide adequate parking as required by the zoning ordinance, so the mistaken assumption by the lower court is of no consequence here. Mandamus, of course, is an extraordinary writ which can only issue when the plaintiffs have a clear legal right to the performance of a ministerial act by the defendant, and it will not issue to compel the exercise of discretion. Commercial Properties, Inc. v. Peternal, 418 Pa. 304, 211 A.2d 514 (1965). When the legal right to the issuance of a building permit is clear, then mandamus may be used to compel its issuance. Commercial Properties, Inc. v. Peternal, supra. The right to a building permit is not clear, however, where the applicant has not met all of the necessary requirements of a zoning ordinance, Borough of Monroeville v. Effie's Ups and Downs, 12 Pa. Commw. 279, 315 A.2d 342 (1974), and a zoning officer may not issue a permit where there is such noncompliance. Section 614 of the Pennsylvania *17 Municipalities Planning Code[5] (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10614. In this case, because the zoning officer refused to issue the building permit on the basis that the requirements of the zoning ordinance had not been met, i.e., site plan approval was not obtained, the appellants did not have a clear legal right to the permit. Mandamus, therefore, was not a proper action.[6] The lower court, therefore, properly refused to exercise its discretion to issue a writ of mandamus. Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747 (1963). The appellant argued below that its proposed construction constituted land development and that its site plan should be deemed to have been approved by the Borough's planning commission pursuant to Section 508 of the Code, 53 P.S. § 10508, which provides that all applications for approval of a plat shall be acted upon by the planning commission not later than ninety days after such application is filed. "Failure. . . to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . ." Section 508(3) of the Code, 53 P.S. § 10508(3). The appellant then argued further that the parking area requirements of the zoning ordinance were among the criteria to be considered by the planning commission and that, because the site plan was "approved," the question of *18 compliance with the ordinance's parking requirements was thereby foreclosed. There being no other zoning nonconformities in the proposed construction, appellant concluded that its right to a building permit was clear. We believe that the proposed construction of a single medical office building on the grounds of a completed shopping center clearly does not constitute land development or subdivision under Section 508 of the Code[7] and that the zoning officer's denial of the building permit was based properly upon noncompliance with the zoning ordinance. We, therefore, affirm the lower court's refusal to issue a writ of mandamus. ORDER AND NOW, this 22nd day of December, 1976, the order of the Court of Common Pleas of Northampton County, dated April 21, 1976, is affirmed. NOTES [1] Edward J. Kirk, Eva A. Kirk, and PBS, Inc. [2] Section 64.1(3) of the Borough's zoning ordinance provides that professional offices, medical and dental clinics are permitted uses in a general commercial district. [3] It is apparently not contested that the proposed construction would violate Section 83.1(2) of the ordinance, which provided the minimum parking requirements for a medical office building. [4] The zoning officer, on May 28, 1975, sent the appellants the following letter: Your application for a Zoning & Building Permit for the construction of doctor's offices at the Springhill Shopping Center has been denied. My basis for denial is due to the fact that your original application was processed in accordance with the Hellertown Zoning Ordinance under Section 63, that site plan approval must be secured from the Planning Commission. The Planning Commission did review your application, and although various requests for reconsideration of the Planning Commission were made by this office and Boro Council, the Planning Commission did see fit to reject our request which is covered by a letter dated May 16, 1975, a copy of which I am enclosing for your information. The main basis for the Planning Commission denying approval is based on Sec. 83 Parking Requirements for Business Center Development. I am enclosing for your consideration, an Appeal to the Zoning Hearing Board. If it is your desire to follow this route, I would suggest that you return the application with the necessary fee to this office as quickly as possible. Then I will set up a meeting with the Zoning Hearing Board. If you have any questions please feel free to call at this office. (Emphasis added.) [5] Section 614 of the Code provides, inter alia, as follows: The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. [6] The lower court properly noted that in ordinary cases, i.e., where mandamus would not be appropriate, jurisdiction of appeals from the actions of zoning officers is vested exclusively in the zoning hearing board. Suburban Group, Inc. v. Gittings, 22 Pa. Commw. 295, 348 A.2d 490 (1975). [7] Section 107(16) of the Code, 53 P.S. § 10107(16) defines "Plat" as "the map or plan of a subdivision or land development, whether preliminary or final." Section 107(11) of the Code, 53 P.S. § 10107 (11), defines "Land development" as follows: (i) the improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving (a) a group of two or more buildings, or (b) the division or allocation of land or space between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features; (ii) a subdivision of land. Section 107(21) of the Code, 53 P.S. § 10107(21), defines "Subdivision," inter alia, as the division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, transfer of ownership or building or lot development. . . .

2013-10-30 06:32:42.456643+00

Smith

152 F. Supp. 473 (1957) Margaret D. HOPKINS, Plaintiff, v. UNITED STATES of America, Defendant. No. 9661. United States District Court W. D. Missouri, W. D. June 28, 1957. *474 Terry, Jones & Welton, Kansas City, Mo., Byron E. Roche, St. Louis, Mo., for plaintiff. Edward L. Scheufler, U. S. Atty., Paul R. Shy, Asst. U. S. Atty., Kansas City, Mo., for defendant. R. JASPER SMITH, District Judge. This is an action by Margaret D. Hopkins v. United States of America under the provisions of the Tort Claims Act, Title 28 U.S.C.A. § 1346 et seq. Plaintiff served as a member of the enlisted personnel of the United States Women's Army Corps, and was honorably discharged from service on June 27, 1944. Since early childhood she had a disease known as fibrous dysplasia involving the right frontal area of her head. The disease was progressive and caused a marked thickening of the right frontal bone, pressing on the right optic nerve and the right orbit, causing a partial loss of vision. On January 28, 1954, she was admitted to the Veterans' Administration Hospital in Kansas City, and after extensive investigation and examination, it was concluded that surgery was necessary to relieve the pressure on the optic nerve and retard the failing visual acuity of the right eye. Dr. Charles E. Brackett, Jr., an instructor in neurosurgery at the University of Kansas Medical School, with a history of wide specialized training in surgery involving the brain and head, including craniotomies and craniectomies, and who was consultant in neurosurgery with the Veterans' Administration Hospital, was in charge of the operation. It was concluded that the operation was to be a craniectomy, i. e., a piece-meal removal of the affected bone of the frontal area, to relieve pressure on the optic nerve and to remove pressure on the brain. There were to be at least two operations, the first to remove the diseased bone and to make a mold of the defect in the skull, and the second to install a metal plate which would be made from the mold taken during the first operation. The proposed operative procedure was discussed fully with plaintiff, she agreed to the operation, and was operated March 16, 1954. The anesthetist, a Dr. Max Miller, was successful in "intubating" *475 the patient on the first attempt. Extensive bone removal was made during this operation but it was not completed, and after approximately four hours it was Dr. Brackett's decision that it would be in the best interests of plaintiff to discontinue the operation and complete the bone removal during a second operation. During this first operation the dura, covering of the brain, was exposed but not entered, and the supra orbital ridge remained intact. The skin flap was replaced and the plaintiff made a normal recovery from this operation. Shortly after the operation plaintiff complained of soreness of the right jaw but there was no evidence of fracture or dislocation of the mandible. The second operation was performed April 20, 1954, and the original plan was to complete removal of bone, take a plastic mold of the defect and insert a plate at a subsequent operation. On this occasion the anesthetist encountered considerable difficulty in the intubation of the patient, with some forty-seven minutes required to pass the intratracheal tube. Dr. Brackett completed the removal of the diseased bone, removing the roof of the right orbit and the superior aspect of the optic foramen. Although the doctor originally planned to close the wound at this point after taking an impression of the defect, and have a custom made plate for insertion at a later date, it was his best judgment that because of the extreme difficulty of intubation, another operation would endanger plaintiff's life and he concluded to use a preformed plate to cover the defect. Several steel plates of various sizes were available in the operating room. He took one of these, which covered the defect except for a gap in the anterior portion, secured it into position with a steel wire, replaced the skin flap, and the patient made a normal post operative recovery. In the opinion of Dr. Brackett, the plate was about one-sixteenth of an inch too low. Plaintiff was released from the hospital July 8, 1954, as the result of the decision of Dr. Brackett and hospital authorities that maximum hospital benefits had been obtained. Plaintiff again contacted the Veterans' Administration on July 20, 1954, complaining of the results of the two operations. Consulting physicians concluded that the operation was successful for the purpose for which it was intended. She again appeared for further examination October 8, 1954, at which time the edges of the steel plate were discernible and there was some movement of the plate upon pressure. Dr. Brackett was of the opinion that fluid had formed behind the plate or that there had been a progression of the disease that caused the mobility, and plaintiff was requested to wait for a medical conference to determine if further treatment was indicated. Plaintiff left the hospital voluntarily before this conference had ended. Subsequently on November 7, 1954, plaintiff was admitted to the Veterans' Administration Hospital at Wadsworth, Kansas. Plaintiff complained of the facilities of the hospital and on November 8, 1954, she voluntarily left the hospital. There is no persuasive evidence to support the claim that the Veterans' Administration abandoned plaintiff as alleged in her complaint. Two subsequent operations were performed on plaintiff by a Dr. Roland Klemme, of St. Louis, the first to replace the steel plate with a plate of plastic material, and the second to trim and make some adjustments in the plate. Evidence indicates that in operations of this character it is necessary at times to take corrective action for adjustment of plates. Plaintiff predicates her claim for damages on the premise that defendant failed to exercise reasonable caution in providing for proper plating material to cover any reasonably expected skull defect; that defendant failed to make reasonable provisions for intubating plaintiff when it had actual notice of the existence of fibrous dysplasia in the *476 plaintiff's right jaw; that the defendant was negligent in that the operating surgeon placed the metal plate below the right supra orbital ridge causing pressure and inability to close the right eye and thereafter refused to correct it; and finally that the two operations performed on March 16, 1954, and April 20, 1954, were not performed according to accepted medical practices in the general area and that they were not successful for the purposes for which they were intended. As to the first two elements, i. e., the failure to provide adequate materials to cover any reasonably expected skull defect or to make reasonable provision for difficulty in intubating the plaintiff in the face of actual notice of fibrous dysplasia in plaintiff's right jaw, there simply is a failure of proof, and these elements are ruled against plaintiff. The third and fourth elements, i. e., the insertion of the metal plate below the right supra orbital ridge, and the charge that the operations were not performed according to the accepted medical practices in the area, we can only predicate our decision on the fact that charges of that character do not prove themselves. Negligence cannot be inferred simply from the fact that plaintiff is dissatisfied with the results of the operations or from the fact that the metal plate may have required subsequent adjustment. A plaintiff in a malpractice action assumes a very heavy burden where the basis of recovery is predicated on an attack on the technique and skill exercised by an operating surgeon or on a charge that he failed to exercise reasonable judgment. In the absence of most unusual circumstances it is a burden that cannot be discharged in normal course by lay testimony. Plaintiff recognized the severity of this burden and attempted to supply this fatal omission by testimony of Dr. George Hawkins, a neurosurgeon in St. Louis, Missouri. The sum of Dr. Hawkins' testimony was that the choice of types of plates and types of metal was within the discretion of the operating surgeon and that all types were acceptable; that corrective action to adjust the placement and location of plates was not unusual, and by inference at least, that necessity for correction and readjustment of plates was no indication of negligence, or otherwise improper installation. In short, the testimony of Dr. Hawkins was completely negative as to any evidence of negligence or improper conduct on the part of defendant or its surgeons. Plaintiff has cited several cases purporting to be authority for the claim that expert testimony is not required; but none of them are persuasive in a situation of this character. Several of them are cases where the issues were determined on motion to dismiss prior to submission to a jury; and in those cases, following the well known rule of granting all reasonable inferences most favorable to the plaintiff, the courts concluded that the motions to dismiss should not be sustained. That is not true here. "In an action for malpractice a physician or surgeon is entitled to have the treatment of his patient tested by the rules and principles of the school of medicine to which he belongs, * * * and if he performs the treatment with ordinary skill and care in accordance with his system, he is not answerable for bad results." See Mann v. Grim-Smith Hospital and Clinic, 347 Mo. 348, 147 S.W.2d 606, 608. While I am not persuaded that the operations were unsuccessful for the purposes for which they were intended, even an unsuccessful result is not evidence of negligence. See Bailey v. St. Louis-San Francisco Railway Co., Mo. App., 296 S.W. 477, and cases cited. I find no competent evidence in the record that Dr. Brackett failed to use his best judgment throughout both operations or that there was neglect of plaintiff to any degree during the post operative period. There is no persuasive evidence whatever, by expert testimony or otherwise, from which a trier of the facts reasonably can find that Dr. Brackett's activities in this case or his judgment in the actions taken by him were *477 contrary to recognized medical opinion and practice. When plaintiff fails to show by calling an expert that the care given by defendant and its agents falls below the required standard of the school of medicine to which he belongs, and fails to show that Dr. Brackett neglected to use standards of skill and treatment required of others in the area, then plaintiff has failed in her burden. See Rodgers v. Lawson, 83 U.S.App.D.C. 281, 170 F.2d 157; Ayers v. Parry, 3 Cir., 192 F.2d 181. Since in my opinion plaintiff has failed to sustain the burden cast upon her to prove negligence, it follows that judgment must be entered in favor of the defendant and against the plaintiff. Plaintiff prior to trial presented her application and affidavit to proceed in forma pauperis. Insofar as it relates to the trial in this Court, the motion is sustained. This is not intended, however, as authorizing an appeal in forma pauperis. If plaintiff desires that action, it must be by separate motion, considered at that time. It is so ordered.

2013-10-30 06:32:42.472162+00

Kelly

367 A.2d 1311 (1977) FORD MOTOR CREDIT COMPANY, a corporation, Appellant, v. Reginald L. HOLLAND and Jyl C. Holland, Appellees. No. 10023. District of Columbia Court of Appeals. Argued July 20, 1976. Decided January 10, 1977. *1312 Laidler B. Mackall, Washington, D.C., with whom William H. Briggs, Jr., Washington, D.C., was on the brief, for appellant. Solomon L. Margolis, Washington, D.C., with whom Mark J. Wishner, Washington, D.C., was on the brief, for appellees. Before KELLY and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired. KELLY, Associate Judge: In this libel action against appellant Ford Motor Credit Company (Ford Credit), a jury awarded to appellees Reginald L. and Jyl C. Holland the sums of $50,000 in compensatory and $100,000 in punitive damages. At trial, Ford Credit's motions for a directed verdict, made at the close of the Hollands' case and again at the conclusion of its own, were denied. Its post-trial motions for judgment notwithstanding the verdict and for a new trial were also denied. Ford Credit appeals these rulings on a number of grounds, only one of which we address as dispositive of this appeal. I. The undisputed facts are that on April 6, 1970, the Hollands bought a 1970 Ford Maverick from Academy Ford Sales, Inc., an authorized Ford Motor Company dealer in Laurel, Maryland. To finance the car the Hollands arranged through the dealer for a retail installment sales contract, with the car as collateral, calling for payment in *1313 36 monthly installments. The first payment under the contract was due May 16, 1970. On April 14, 1970, the installment sales contract was assigned to appellant Ford Credit. Early in May of 1970 the Hollands were driving the car on the New Jersey Turnpike when the engine "blew up". The car was towed to Reliable Garage, Inc., a Ford Motor Company dealer in Swedesboro, New Jersey, where the Hollands left it. For some months thereafter the Hollands unsuccessfully attempted to have Academy Ford or Ford Motor Company repair or replace the car. Meanwhile, Ford Credit requested payments under the contract, but because of what they considered an unjustified lack of cooperation by Academy Ford and Ford Motor Company the Hollands refused to make any such payments, stating that they no longer had any interest in keeping the car. The Hollands were informed by a notice of repossession dated August 5, 1970 that Ford Credit had repossessed the car through its Camden, New Jersey branch office. The vehicle was sold to a third party and the Hollands received a statement of sale dated September 10, 1970, showing that the car had been sold for $1,600. The Hollands' account was credited with that amount plus appropriate insurance refunds, and the balance remaining under the contract was $1,063.75. Shortly after the repossession, Ford Credit sent the following routine credit report to Credit Bureau, Inc., in Washington, D.C.: Account No. BJ A128 K037; Account opened 04-13-70; High credit—$2,820.00; 36 payments at $78.60; Collateral— 1970 Ford Maverick, Vehicle repossessed—08-05-70. The words "Vehicle repossessed" in this report constitute the alleged libel in this action. Ford Credit continued its attempt to collect the balance of the Holland account and subsequently accepted a settlement offer of $600, payable in six equal monthly installments. The Hollands completed these payments in August 1971. In the interim, on April 30, 1971, the Hollands applied to Commercial Credit Corporation for a $5,500 loan, showing Mr. Victor Kraft, the Commercial Credit representative with whom they dealt, all of their correspondence with Ford Credit. Kraft testified at trial that he made a credit check on the Hollands and refused their application for the loan on the basis of the Credit Bureau report. He also testified under cross-examination that even had he known of the subsequent settlement he would have refused the loan because of the reported repossession. By letter dated June 30, 1971 the Hollands wrote to Ford Credit requesting that their credit record be corrected to show that they had settled their account with Ford. Ford replied in a letter dated August 18, 1971 that it was having its branch office notify the Credit Bureau of the settlement. Ford also gave the Hollands permission to use the August 18 letter in making any further loan applications. Acknowledging the undisputed facts and the favorable inferences to be drawn therefrom for the Hollands, Ford Credit argues, inter alia, that there was insufficient evidence to reach the jury on two separate and crucial elements of the plaintiff's case: (1) a showing that the allegedly libelous words were false, and (2) a showing of the actual malice necessary to overcome the defense of qualified privilege. We hold that there was insufficient evidence of malice to submit the question to the jury.[1] Absent malice, qualified privilege was a complete defense to the libel action and Ford Credit was entitled to the judgment as a matter of law. *1314 II. The parties concede that the credit communication in question is qualifiedly privileged,[2] a complete defense to a charge of libel "unless it is made in bad faith or for an improper purpose." Watwood v. Stone's Mercantile Agency, Inc., 90 U.S.App.D.C. 156, 157, 194 F.2d 160, 161, cert. denied, 344 U.S. 821, 73 S. Ct. 18, 97 L. Ed. 639 (1952). They also recognize that the burden is upon the plaintiff to prove malice whenever it is a necessary element in a defamation action.[3] Moreover, when a communication is privileged, a "defendant will be presumed to have been actuated by pure motives in its publication." Ashford v. Evening Star Newspaper Company, 41 App.D.C. 395, 405 (1914). The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication. In order to rebut this presumption, express malice or malice in fact must be shown. This may appear from the face of the publication or from extrinsic proof. . . . Before the inference of express malice can be indulged, the publication must, in comment, be so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion than that defendant was actuated by express malice. . . . [Ibid.] Accordingly, the question here is whether the Hollands produced sufficient evidence of malice to justify submission of the issue to the jury. With respect to malice as it relates to qualified privilege in the area of libel, "all definitions in substance come down to the equivalent of bad faith." H. E. Crawford Co. v. Dun & Bradstreet, Inc., 241 F.2d 387, 395 (4th Cir. 1957). It is the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will. [Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34, 38 (1961).] A concept of reasonableness is applied, meaning that the existence of the privilege is said to depend on the facts as they reasonably appear to the person whose liability is in question. Watwood v. Stone's Mercantile Agency, Inc., supra. A qualified privilege will exist only if the publisher of the alleged defamation believes his statements to be true and has reasonable grounds for this belief. Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 77, 366 F.2d 649, 656 (1966). It is nevertheless evident that for an act to be unreasonable within this context it must be more than negligent. E. g., H. E. Crawford Co. v. Dun & Bradstreet, Inc., supra. See also Johns v. Associated Aviation Underwriters, 203 F.2d 208 (5th Cir. 1953). The standard to be applied in measuring sufficiency, as stated in May Department Stores Company, Inc. v. Devercelli, D.C.App., 314 A.2d 767 (1973), is that . . . on an occasion of qualified privilege ". . . if the language of the communication, and the circumstances attending its publication by the defendant are as consistent with the non-existence of malice as with its existence, there is no issue for the jury, and it is *1315 the duty of the trial court to direct a verdict for the defendant." . . . [Id. at 774, quoting National Disabled Soldiers' League, Inc. v. Haan, 55 App. D.C. 243, 248-249, 4 F.2d 436, 441-442 (1925).] The alleged slander in May occurred while defendant's agents questioned a suspected shoplifter. The agents were performing in good faith what they reasonably perceived to be their assigned duty, an activity protected by qualified privilege. No evidence of malice was present and this court held that a directed verdict for the defendant on the libel claim was in order. The qualified privilege of fair comment was invoked in Fisher v. Washington Post Company, D.C.App., 212 A.2d 335 (1965), as a defense to a libel charge where the paper had published an article criticizing the plaintiff's art work. While there was some factual basis for the criticism, we held that where the only evidence of malice on the record was innuendo and speculation, a trial court must direct a verdict for the defendant. Appellees rely upon Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F. Supp. 421 (D.D.C.1972), a case in sharp contrast to the one before us. There, the defendant published articles on two consecutive days alleging that the plaintiff's operations were financed by government agencies such as the Pentagon, the CIA, and the State Department. After the first article appeared, but before publication of the second, the editor of the defendant newspaper called the director of the CIA, who emphatically denied the story. Although admittedly shaken in his belief that the story was true, the editor published the second story. These facts led the court to say that a jury could find such reckless disregard of the truth as to imply malice. III. The Hollands' basic argument here is that Ford Credit failed to comply with the proper procedures to insure fair and accurate credit reporting in that the words "Vehicle repossessed" were misleading, particularly in light of Ford Credit's knowledge that the Hollands disputed their obligation on the contract and the reason why they disputed it. They urge that from the failure to include an explanation of the dispute in the credit report the jury could properly find that Ford Credit acted with malice, or so recklessly and with such lack of regard for their rights as to imply malice. Applying the test of reasonableness, the Hollands are saying that a jury could plausibly find that the appellant did not believe the allegedly libelous statement to be true, and did not have reasonable grounds for such belief. Even assuming that the phrase "Vehicle repossessed" when literally true could ever convey libelous connotations, however, there is no evidence in the record to support the Hollands' contention that the report was motivated by malice; thus, there is no issue of fact for resolution by the jury. There is no dispute about what information was before Ford Credit's clerk at the time she made the credit report. The Hollands testified at trial that Ford Credit was aware at all times of their reasons for refusing to make any payments on the car and Ford Credit does not disclaim this knowledge. In addition, the Hollands' evidence proved that the clerk had before her information they had not made and did not intend to make any payments under their contract with Ford Credit; they were in default on their contract; the Camden Office of Ford Credit had been instructed to take possession of the vehicle; a notice of repossession dated August 5, 1970, informing them that the car had been repossessed and of their right to redeem it within fifteen days by making up the delinquent payments; a statement of sale showing that the car had been sold to a third party for $1,600, and that the proceeds of the sale had been applied to the balance due Ford *1316 Credit; and a letter dated August 6, 1970 from Ford Credit advising Academy Ford that the car had been repossessed. There was no evidence that the clerk was in possession of any other information which would lead her to believe or even suspect that all of the foregoing was not true. We fail to see, therefore, how it can be said that the credit report was sent with malice. At trial a Ford Credit employee, Mr. Luis Alonso, testified that it is standard procedure to notify the local credit bureau of a repossession; that it is, in fact, required by Ford Credit's manual. Nothing of record indicates that where the obligor disputes the obligation the clerk has a duty to investigate beyond the information in his or her possession before sending out the report. Furthermore, failure to investigate, by itself, does not establish bad faith. Nor is there anything indicating that when there is a dispute the clerk usually notes it in the report. In short, there is nothing even to show the clerk was inadvertently careless, much less reckless, in sending out the report without including an explanation of the Hollands' refusal to make payments. It is not contended that the installment contract was invalid or unenforceable, or that the assignment to Ford Credit was not a good faith assignment. It is clear from the face of the contract that any claims the Hollands had concerning the property were to be settled with the original seller under appropriate warranties and that any such claims would not excuse their obligation to make the payments under the contract. See Block v. Ford Motor Credit Co., D.C. App., 286 A.2d 228 (1972). Ford Credit notified them of their obligation and despite this the Hollands refused to pay and expressly disclaimed any further interest in the car. It is clear, too, from the face of the contract that if the Hollands did not make their payments, Ford Credit would have the right to repossess the car. In light of all of this, the Hollands could not have reasonably expected that any credit information Ford Credit might provide to interested parties would say anything other than that the car was repossessed. The words do imply that the Hollands did not pay their debt, but they did not, in fact, pay their debt. The consequences were foreseeable. Even had the clerk examined these facts in detail, the credit report would still have been made in the belief that it was true, and with reasonable grounds to believe it was true. We repeat: there is simply no evidence of record in this case to support a finding of malice. Accordingly, it was error for the trial judge to submit the question to the jury. Qualified privilege is a complete defense to this action in libel and the motion for judgment notwithstanding the verdict should have been granted. Reversed with instructions that judgment be entered for the defendant. NOTES [1] It is well settled that truth is a complete defense to libel. Olinger v. American Savings & Loan Association, 133 U.S.App.D.C. 107, 409 F.2d 142 (1969); Clark v. Pearson, 248 F. Supp. 188 (D.D.C.1965). Because we find error on the malice issue, we do not decide whether the words "Vehicle repossessed", when literally true, can reasonably be said to bear such connotations of uncreditworthiness that factual truth would not serve as a defense. [2] Watwood v. Credit Bureau, Inc., D.C.Mun. App., 97 A.2d 460 (1953); Watwood v. Stone's Mercantile Agency, Inc., 90 U.S.App. D.C. 156, 194 F.2d 160, cert. denied, 344 U.S. 821, 73 S. Ct. 18, 97 L. Ed. 639 (1952); Blake v. Trainer, 79 U.S.App.D.C. 360, 148 F.2d 10 (1945). [3] Potts v. Dies, 77 U.S.App.D.C. 92, 132 F.2d 734 (1942), cert. denied, 319 U.S. 762, 63 S. Ct. 1316, 87 L. Ed. 1713 (1943).

2013-10-30 06:32:42.47548+00

Per Curiam

535 S.W.2d 681 (1976) Hubert TRIAL, d/b/a Old Fort Trading Post, Appellant, v. Don McCOY, Appellee. No. M10980. Court of Civil Appeals of Texas, El Paso. February 25, 1976. Rehearing Denied March 17, 1976. Lonnie W. Duke, San Antonio, for appellant. Schwartz & Earp, Larry H. Schwartz, El Paso, for appellee. OPINION PER CURIAM. This is an attempted appeal from an order overruling Appellant's plea of privilege. Appellee has contested the Appellant's request for extension of time to file the transcript and statement of facts. The contest is sustained; the request for extension of time is overruled and the appeal is dismissed. The judgment of the trial Court overruling the plea of privilege was signed and entered on January 5, 1976. Appellant deposited cash in lieu of appeal bond with the District Clerk and the Clerk's certificate showing the deposit on January 26, 1976. This was timely filed under the 20-day requirement of Rule 385(a) Tex.R.Civ.P., as January 25 was a Sunday and the Appellant was permitted the extra day by Rule 4, Tex.R.Civ.P. The Appellant then, on February 2, 1976, filed in this Court of Civil Appeals his Motion for Extension of Time to File Statement of Facts and Transcript. The Appellee contests on the ground that *682 good cause is not shown by the motion and that, in fact, good cause does not exist as required under Rule 385(b). More than the question of good cause is presented. The time limits imposed by Rule 385(b) are mandatory and jurisdictional. State v. Gibson's Distributing Company, 436 S.W.2d 122 (Tex.1968). The rule states "that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record * * *." The twenty-fifth day from the judgment overruling the plea of privilege was Friday, January 30, 1976. The motion requesting extension was three days late. We have no jurisdiction to grant the motion or to consider the appeal. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Cattle Land Oil Co. v. Willis Drilling Company, Inc., 509 S.W.2d 383 (Tex.Civ.App.—Corpus Christi 1974, no writ). Regardless of the above, there is a failure of good cause under the rule. The Appellant's direction to the District Clerk to prepare the transcript was not filed until January 26, 1976. The Appellant was notified on January 27, 1976, that the transcript was ready. Any extension aside, January 26 was the last regular day when it was due for filing in the Court of Civil Appeals. No excuse is shown for this delay in ordering the transcript. Pledger v. Ools, 476 S.W.2d 854 (Tex.Civ.App.—Amarillo 1972, no writ). The court reporter certifies that he was requested on January 21, 1976, to prepare the statement of facts, and he then had only two full working days to complete it before it was due in the Court of Civil Appeals; that he could not complete the statement of facts and perform his other duties as court reporter within the short period of time. Again, there is a failure to answer the preliminary question of whether the request for the record was made within a reasonable time after the entry of judgment appealed from. The purported showing of good cause is defeated. Garza v. State, 503 S.W.2d 415 (Tex.Civ.App.—Corpus Christi 1973, no writ); Pledger v. Ools, supra; Sommer v. Richardson, 420 S.W.2d 742 (Tex.Civ.App.—Eastland 1967, no writ); Reynolds, Texas Rules of Civil Procedure 385 and 386: Whether to Extend the Definitive Time for Filing the Appellate Record, 4 Tex.Tech.L.Rev. 1 at 8. The question is asked if Rule 21c, Tex.R.Civ.P., effective January 1, 1976, has changed the rules relating to the good cause showing under Rule 385. The test under Rule 386 is no longer that of showing good cause why the record could not be timely filed but is now one where the motion must "reasonably explain" the timely failure to file. Rule 21c speaks generally when it refers to the failure of a party to timely file a transcript and statement of facts in the Court of Civil Appeals and Rule 386, as now amended on January 1, 1976, has been changed to conform to Rule 21c. Rule 385(d) has also been changed but in the face of Rule 21c, Rule 385(b) has not been changed. Rule 385(d) in its changes regarding appeals of temporary injunctions specifically refers to the retention of the time for filing transcripts and statement of facts as presently provided in Rule 385(a) & (b). Because of the urgency of the interlocutory order appeals permitted by Rule 385, and the changes noted, it is the holding of this Court that Rule 21c does not apply to transcripts and statement of facts filed under Rule 385, and that the showing of good cause is still mandatory for any reasonable extension of time. The Motion for Extension of Time to File the Transcript and Statement of Facts is denied and the appeal is dismissed.

2013-10-30 06:32:42.578813+00

Weick

152 F. Supp. 216 (1957) UNITED STATES of America v. Dr. Alexander V. SPAETH. Cr. No. 20988. United States District Court N. D. Ohio, E. D. June 14, 1957. *217 Edwin F. Woodle, Cleveland, Ohio, Geo. R. Hewes, Toledo, Ohio, for plaintiff. Sumner Canary, U. S. Atty., James Carroll, James Sennett, Jr., Asst. U. S. Attys., Cleveland, Ohio, for defendant. WEICK, District Judge. The defendant has been tried and convicted three times of the crime of perjury. The two previous convictions were reversed by the Court of Appeals for errors of law occurring at the trials. Spaeth v. United States, 6 Cir., 218 F 2d *218 361; Spaeth v. United States, 6 Cir., 232 F.2d 776, 777. Defendant has now filed a motion for judgment of acquittal and in the alternative for a new trial to obtain relief from his third conviction. The principal ground urged in support of the motion is that the evidence at the third trial was insufficient to support the verdict of the jury. The defendant asserts that there was no proof of any intent or motive on his part to commit a crime, and that he was convicted on circumstantial evidence alone. The prosecution grows out of the case of United States v. Julius Anthony Petro and Joseph John Sanzo, Criminal Case No. 20810 of this Court in which Petro and Sanzo were charged with robbery of a bank in Warren, Ohio with a sawedoff shotgun and revolver and relieving the bank of $71,000 in cash. The robbery took place in broad daylight on August 14, 1952 at about 10:00 o'clock in the morning. At the trial of the Petro-Sanzo case, Dr. Alexander V. Spaeth, a practicing physician of Cleveland, Ohio was subpoenaed as a defense witness on behalf of Sanzo, who was his patient, and was required to bring with him his "office records, files, documents and memoranda showing your treatment of Joseph J. Sanzo beginning with August 12, 1952 to the present time, said records also to indicate treatment furnished and the number of visits made by patient to your office from August 12, 1952 to the present time." The obvious purpose of Sanzo in subpoenaing Dr. Spaeth and his records was to establish the alibi that at the time of the bank robbery in Warren, Ohio, on August 14, 1952 at 10:00 o'clock a. m., he, Sanzo, was then being treated by Dr. Spaeth for a skin rash on his hand in the doctor's office in Cleveland, approximately 50 miles away from the scene of the robbery. Dr. Spaeth was sworn as a witness at the Petro-Sanzo trial and testified that he first met and treated Sanzo at his office in Cleveland on August 12, 1952. He testified from his medication record card (Gov't Ex. 31) that he next saw Sanzo at his office on August 14, 1952 and he fixed the hour at 10:00 o'clock a. m. from an entry appearing in his appointment book (Gov't Ex. 36). This was the exact time of the occurrence of the robbery in Warren with which his patient Sanzo was charged. The medication card indicated on its face that the "4" of the stamped "August 14, 1952" was handwritten quite heavily in ink. On cross-examination Dr. Spaeth testified as follows: "Q. You have got August 12. You have got August 14. A. That's right. "Q. I want you to look at the record and indicate to the Court and jury,—in addition to the stamped date somebody has written over the stamped date on that particular day? A. They have. "Q. Do you know what date was stamped over before that was written there? A. It was the 14th. "Q. How do you know that? A. It was put in by myself at the time of the visit. That happens often, the stamp is incomplete or fades, and I write over it. "Q. When did you do that? A. At the time of the visit. The gist of the charge in the perjury indictment was that Dr. Spaeth testified under oath that the stamped date on the medication card was August 14, 1952 when he knew that the date stamped thereon was August 18, 1952. Joseph Tholl, a handwriting expert and George Mesnig, a special agent of the Federal Bureau of Investigation, testified in behalf of the Government that they examined the medication card under microscope and took many photographs of it using ultra violet and infra red rays for some of them; that there was a stamped "8" on the medication *219 card underneath the inked "4"; that the stamped "8" was then written over by hand with an inked "8"; that a heavily inked "4" was then written over the "8"; that the inked "8" was of the same composition as the ink on the rest of the card; that the heavily inked "4" was of a different composition; that the difference in the composition of inks was clearly apparent by looking at the card with an infra red lamp. They also identified the photographs which were received in evidence showing a rounded figure underneath the inked "4" which the jury might properly have concluded was an "8". Defendant claims that the testimony of the witnesses Tholl and Mesnig was circumstantial evidence citing Wakeley v. State, 118 Neb. 346, 225 N.W. 42, 45. In the Wakeley case the evidence of the handwriting expert was derived wholly from a "comparison of hands." In other words, he drew an inference from admitted facts or circumstances. In the case at bar, the evidence of the experts was far different. They examined the disputed area on the medication card under microscope and took photographs, even using ultra violet and infra red rays. They made enlargements of the photographs. Their examination was scientific. The evidence they offered was substantive in character. In Keeney v. De La Gardee, 212 Iowa 45, 235 N.W. 745, the court said: "By microscopic inspection, and by magnified photographs and sometimes by chemical tests, the expert may be able to discover and to demonstrate the existence of facts which negative the genuineness of the signature. Such facts, when proved, become substantive evidence, rather than mere expert opinion." 235 N.W. at page 749. Cf. Boyd v. Gosser, 78 Fla. 64, 82 So. 758, 6 A.L. R. 500. In Spaeth v. United States, 6 Cir., 218 F.2d 361, 365, Judge Stewart characterized the evidence of the witnesses Tholl and Mesnig as follows: "The expert witnesses in this case did substantially no more than testify what physical fact their more practiced eyes observed. As a trained musician may more readily distinguish a minute differentiation of pitch, so the jury would have been warranted in believing that these experts were able to see subtle differences of intensity. Their testimony as to their observation was therefore not circumstantial, and its credibility and weight were for the jury." The medication card showed under date of August 12 that the patient Sanzo was to return for further treatment in six days, which would be August 18th. The card shows no treatment on the 18th although the doctor's appointment book contained an entry that he had an appointment with Sanzo at 3:00 o'clock p. m. on that day, treated him and made a charge of $6 therefor. The Government claims that the alleged treatment shown on the card on August 14th actually took place on the 18th when Sanzo was supposed to return for treatment; that the date August 18, 1952 had originally been stamped on the card and thus corresponded with the appointment book entry until the doctor changed the date on the medication card to the 14th. By making the change, the medication card shows the treatment on the 14th and no treatment on the 18th although the appointment book shows that Sanzo received treatment on the 18th. The medication card and the appointment book record constituted "documentary or written testimony springing from" the defendant. United States v. Wood, 1840, 14 Pet. 430, 39 U.S. 430, 10 L. Ed. 527; Spaeth v. United States, 6 Cir., 218 F.2d 361, 363. There was no way to read the mind of Dr. Spaeth to determine his intent at the time he inked in the "4" by hand on *220 the medication card or when he testified in the Petro-Sanzo trial concerning which he was convicted of perjury. His intent necessarily had to be determined from his acts in the light of all the facts and circumstances of the case. He was presumed by law to have intended the natural and probable consequences of his acts. Whether or not the defendant had a wilful intent to commit perjury was solely a question of fact to be determined by the jury, under proper instructions, from all the evidence in the case, together with the inferences which might reasonably be drawn therefrom. Defendant concedes that the jury was correctly charged on the subject of intent. No objection was taken to the Court's charge prior to the submission of the case to the jury. See Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A.; United States v. Cioffi, 2 Cir., 242 F.2d 473. In order to convict the defendant of perjury the Government was required to prove, beyond a reasonable doubt, that defendant wilfully and contrary to his oath stated any material matter which he did not believe to be true. Title 18 U.S.C.A. § 1621. The defendant, of course, knew that he was subpoenaed to bring his records of treatment of his patient Sanzo, who was charged with the commission of a crime. The subpoena mentioned the date of the first treatment, August 12, 1952, and required the doctor to furnish information concerning his treatment and the number of visits. On his direct examination in the Petro-Sanzo case, Dr. Spaeth was questioned concerning the dates of treatment. He was cross-examined extensively concerning dates and his attention was specifically called to the date of August 14, 1952, the stamped date and the inked "4". He was sent to his office by the Court to secure his appointment book which he had testified showed 10:00 o'clock a. m. as the hour of the August 14th visit. He testified further on direct and cross-examination after he had procured his appointment book. To say that Dr. Spaeth did not know why he was called as a defense witness sounds incredible. Defendant cites Wigmore on Evidence 3rd Ed., Vol. 2, § 242 on the subject of intent. In the footnote appearing on page 39 the author quotes Reed, J. on State v. Teeter, 69 Iowa 717, 718, 27 N.W. 485 as follows: "It often occurs in human experience that the mere fact that a particular act has been done affords the best evidence of the motive or intention with which it was done. If one was to break and enter a building which was known to be on fire, the reasonable presumption from his act would be that his intention was either to attempt the extinguishment of the fire or the rescue of the property or persons within it. So if one was to be found in the night time in the act of breaking into a building in which money or property of great value was deposited, his act would give very strong evidence indeed of the motive or purpose which prompted it." The Court of Appeals held that the evidence in the first trial was sufficient to support the verdict. Judge Stewart said [218 F.2d 363]: "It is next argued that there was insufficient evidence to support the verdict, in that the stringent degree of proof which is necessary to establish perjury was not met. The rule is that the falsity cannot be proved by circumstantial evidence alone nor by the uncorroborated testimony of one witness. Weiler v. United States, 1945, 323 U.S. 606, 65 S. Ct. 548, 89 L. Ed. 495; Hammer v. United States, 1926, 271 U.S. 620, 46 S. Ct. 603, 70 L. Ed. 1118; Radomsky v. United States, 9 Cir., 1950, 180 F.2d 781; Allen v. United States, 4 Cir., 1912, 194 F. 664, 39 *221 L.R.A.,N.S., 385. The proof in this case contained neither defect. The questioned writing itself, as revealed by the photographs, was directly, and not circumstantially, probative of the falsity of appellant's oath, and since this was in essence `documentary or written testimony springing from' the appellant, there was no failure to meet the required standards of proof. United States v. Wood, 1840, 14 Pet. 430, 39 U.S. 430, 10 L. Ed. 527." It is not believed that the evidence at the third trial was substantially different from the evidence at the first trial. Motive is not a necessary element of the crime of perjury. 70 C.J.S. Perjury § 18, p. 476. Proof of motive does not establish guilt, nor want of proof of motive establish innocence. If the guilt of the defendant be shown beyond a reasonable doubt, it is immaterial what the motive for the crime, or whether any motive be shown, but the presence or absence of motive is a circumstance which the jury may consider as bearing upon the intent of the defendant. Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S. 17, 44, 45, 74 S. Ct. 323, 98 L. Ed. 455; United States v. Schneiderman, D.C., 106 F. Supp. 906; Fabian v. State, 97 Ohio St. 184, 119 N.E. 410. The jury was so instructed. It is next contended that the Court erred in not admitting in evidence a number of other medication cards of the doctor of different dates and involving patients other than Sanzo. What the doctor did or failed to do with respect to the medication cards of other patients was not relevant to the issues here. The issue here is what the doctor did to Sanzo's medication card. The evidence did not disclose the circumstances under which entries were made on the other cards. The admission of other cards in evidence would have resulted in a trial of issues with respect to each card, introduced collateral matters, complicated the issues, prolonged the trial and confused the jury. Under the circumstances, even if the cards of other patients had been relevant (which they were not here) the Court would have been fully justified, in the exercise of its discretion, in not admitting them in evidence. 1 Wigmore on Evidence § 29a. Defendant further claims that the medication card (Gov't Ex. 31) was unlawfully seized by the Government during the Petro-Sanzo trial and that his constitutional rights were violated. The contention grows out of the fact that at the Petro-Sanzo trial Dr. Spaeth, on direct examination, was testifying from his records and on cross-examination the Government had his medication card marked Government's Exhibit 31 and it was received in evidence. On the same day a Government agent obtained the exhibit from the Clerk, took it to Washington where it was examined and photographed by a special agent of the Federal Bureau of Investigation who immediately returned it to the Clerk. The special agent testified at the Petro-Sanzo trial as to the results of his examination. It would have been better practice for the Government to have obtained an order of court authorizing the removal of the exhibit for the purpose of examination. Such an order would have been granted by the court as a matter of course. The failure to apply for and obtain the order did not make the previously admitted exhibit any the less admissible nor would it furnish a defense for perjury if committed at the trial. The exhibit was not in the possession of the defendant when the Government received it from the Clerk. He had relinquished the possession of it when it was marked as an exhibit and received in evidence. While complaint might have been made by the Court concerning *222 the removal of the exhibit, no prejudice resulted to this defendant. Cf. Johnson v. United States, 228 U.S. 457, 33 S. Ct. 572, 57 L. Ed. 919; Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048. The point was previously raised without success in Sanzo v. United States, 6 Cir., 210 F.2d 49. Finally, it is contended that a new trial should be granted on the ground of newly discovered evidence. This so-called newly discovered evidence relates solely to impeaching the witness Estelle Bulkley who was called by the Government. The witness had testified about a collateral matter, namely, the doctor's receipt books. One of the impeaching affidavits is from the defendant himself. It states facts concerning which the defendant had knowledge and could have testified at the trial, but he chose not to take the witness stand. He was, of course, not required to become a witness in his own behalf and was privileged to stand on his constitutional rights. He ought not to complain, however, concerning his failure to offer impeaching evidence when he had full opportunity to do so. Certainly, there is not sufficient showing that this evidence could not with reasonable diligence have been discovered and produced at the trial. Nor does it appear that such impeaching evidence would have affected the result of the trial had it been offered. It is too late after verdict to impeach a witness by affidavit where the defendant had full opportunity to present the evidence at the trial had he taken the witness stand. The note from Dr. Vrooman S. Higby to Dr. Spaeth advising the latter of the unreliability of the witness Bulkley is dated April 25, 1953 which was almost four years before the present trial. Certainly, Dr. Spaeth knew all about her unreliability at the time of the trial, but he remained silent until after the verdict. In any event, a new trial ought not to be granted on the ground of newly discovered evidence of an impeaching character which tends merely to affect the weight or credibility of the evidence. State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370; Grant County Deposit Bank v. Greene, 6 Cir., 200 F.2d 835. The motion of defendant for judgment of acquittal and in the alternative for a new trial is overruled.

2013-10-30 06:32:42.579832+00

Per Curiam

535 S.W.2d 755 (1976) Cynthia CALK et al., Appellants, v. GANS AND SMITH INSURANCE AGENCY, INC. and Les Pruett, Appellees. No. 2054. Court of Civil Appeals of Texas, Tyler. March 25, 1976. *756 Dennis R. Wolinsky, Houston, for appellant. Robert M. Parker, Nichols & Parker, Longview, for appellee. PER CURIAM. This is an attempted appeal from a judgment granting defendants' motion for summary judgment and decreeing that plaintiffs take nothing of defendants. On March 4, 1976, the Clerk of this Court received from Cynthia Calk and C. P. Erection Company, through their attorney of record, a purported transcript in Cause No. 1479-75B, styled Cynthia Calk and C. P. Erection Company vs. Gans and Smith Insurance Agency, Inc. and Les Pruett in the District Court of Gregg County, Texas. It appearing to the Clerk of this Court that upon examining the transcript that the appeal had not been duly perfected, the transcript was referred to the Court as provided by Rule 388, Texas Rules of Civil Procedure. An examination of the transcript so tendered reveals that judgment was rendered and signed on December 2, 1975. The plaintiffs' motion for new trial was filed with the Clerk of the District Court on December 15, 1975, thirteen days from the date of the rendering and signing of the judgment. December 12, 1975, which was neither a Saturday, Sunday, nor holiday, was the tenth day from the date of judgment and therefore the last day for filing an original motion for new trial. Obviously, the motion for new trial was not filed *757 within ten days as required by Rule 329b, Texas Rules of Civil Procedure. Therefore, the motion for new trial was not timely filed. The filing of an original motion for new trial within a ten-day period after the rendition of any judgment or order complained of, or the date on which such judgment or order was signed, is jurisdictional where the appeal or attempted appeal is from an order overruling a motion for a new trial. A later date is a nullity. Rule 329b, supra; Dean v. Warren, 464 S.W.2d 672 (Tex.Civ.App.—Tyler 1971, n. w. h.); and Selman v. Ross, 302 S.W.2d 752, 754 (Tex.Civ.App.—Galveston 1957, n. w. h.). In the absence of a timely-filed motion for new trial, Rule 329b, supra, expressly terminates the trial court's jurisdiction thirty days after rendition of the judgment. Dillard v. McClain, 322 S.W.2d 26 (Tex.Civ. App.—Texarkana 1959) affirmed 159 Tex. 559, 324 S.W.2d 163. Notice of appeal must "be given or filed within ten days after the judgment or order overruling motion for new trial is rendered." Rule 353, Texas Rules of Civil Procedure. An appeal bond must be filed "within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law." Rule 356, Texas Rules of Civil Procedure. The notice of appeal was filed on January 13, 1976, which was more than ten days from date of the judgment. The appeal bond was filed on January 26, 1976, which was more than thirty days from the date of the judgment. Therefore, the notice of appeal and appeal bond were filed late. The tardy filing of a motion for new trial does not operate to extend the time for filing notice of appeal or an appeal bond as provided by Rules 353, supra, and 356, supra, even though the late motion be considered and overruled by the trial judge. Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163 (1959); Hilliard v. Hines, 403 S.W.2d 442 (Tex.Civ.App.—Tyler 1966, n. w. h.). An appellate court does not acquire jurisdiction of an appeal where notice of appeal, if required, as in this case, has not been timely filed or given or an appeal bond has not been timely filed. Curtis v. Carey, 378 S.W.2d 418 (Tex.Civ.App.—Corpus Christi 1964, n. w. h.) and cases therein cited. From the foregoing, it appears to the court from said transcript, that neither the motion for new trial, notice of appeal nor appeal bond were timely filed from the date of the judgment. By reason thereof the transcript tendered failed to show jurisdiction in this Court of said appeal. Thereupon this Court on authority of Rule 388, supra, ordered that notice of such defect issue to appellants' attorney of record to the end that they might take steps to amend the record if such could be done, so that jurisdiction of this court would be shown in the transcript and was allowed fifteen days as a reasonable time for the correction of such defects. By letter of March 5, 1976, the Clerk of this Court so informed plaintiffs' attorney of record of such defects and the time allowed for the curing thereof, if it could be done. Plaintiffs, by letter dated March 15, 1976, which we treat as a motion, contend that the motion for new trial was timely filed and request that we accept and file the transcript. They contend that the tenth day from the date of judgment was December 13th, which was a Saturday, and therefore, the filing of the motion for new trial on the following Monday, December 15th, was timely filed. We do not agree with plaintiffs' calculations. We overrule defendants' motion to disregard the letter of March 15, 1976, because it is not in proper form and not in accordance with proper appellate procedure. We are not aware of, nor have we been cited to, any law or rule of Texas Civil Procedure that prescribes any particular or precise form for a motion of this nature in order for it to be considered as such. "A *758 motion is an application for a court order or rule directing that some act be done in favor of the applicant. In determining the nature of the application, substance and not form will be considered." 39 Tex.Jur.2d p. 243, sec. 1. We think the letter sufficiently and adequately presents plaintiffs' plea to this court, and their reasons therefor, that the transcript shows jurisdiction and that it should be filed. However, we do not suggest or recommend this practice in presenting matters to this court or any other court for its consideration and disposition. More than fifteen days have elapsed and plaintiffs have failed to cure such defects. Therefore, the transcript tendered, failing to show that this court had jurisdiction, and the failure to cure the defects, which were pointed out to them, this Court cannot accept the filing of the transcript because jurisdiction of this Court is not shown. It is well established that when our jurisdiction is invoked the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so our duty is to dismiss the appeal. Hilliard v. Hines, supra; Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App.—Tyler 1966, writ ref'd n. r. e.). Plaintiffs have tendered to this court a purported order of the trial court overruling the motion for new trial on the 9th day of January, 1976, and signed on the 12th day of March, 1976. This instrument is not authenticated or certified by the Clerk of the trial court or under the Seal of the Court that said instrument is a true and correct copy of the original on file in the Clerk's office as required by Rules 376 and 376-a, Texas Rules of Civil Procedure. The record may be supplemented by supplemental transcript. However, assuming that the trial court did overrule the motion for new trial on the date as shown, it would be a nullity, since the motion for new trial was not timely filed. Hilliard v. Hines, supra; Dillard v. McClain, supra. For the reasons above stated the appeal is dismissed.

2013-10-30 06:32:42.63693+00

Kern

367 A.2d 149 (1976) COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Petitioner, v. DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS, Respondent, Sally Kraus Marshall, Intervenor. No. 9406. District of Columbia Court of Appeals. Argued November 4, 1975. Decided December 22, 1976. *150 Matthew A. Kane, Washington, D.C., with whom Charles V. Koons, Washington, D.C., was on the brief, for petitioner. Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., with whom C. Francis Murphy, Corp. Counsel, Washington, D.C., at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for respondent. Judy Lyons Wolf, Washington, D. C., for intervenor. Before KERN and HARRIS, Associate Judges, and STEWART, Associate Judge, Superior Court of the District of Columbia.[*] KERN, Associate Judge: This is a petition for review of an order by the District of Columbia Commission of *151 Human Rights (Commission) entered after a hearing and upon a finding of discrimination in employment on the basis of sex by the Communications Workers of America, AFL-CIO (CWA). The order (1) awards CWA's former female employee, one Marshall, some $7,600 in back wages, $7,500 for loss of promotional opportunity, retaliation, humiliation, and mental anguish, and $2,000 in attorneys fees, and (2) directs CWA to develop an affirmative action plan for employment of women. CWA's challenge to the Commission's order is threefold: first, that the Commission lost jurisdiction to enter the order once Marshall had filed suit in the United States District Court for the District of Columbia pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970); second, that the evidence adduced at the hearing showed Marshall's failure to advance at CWA stemmed from her lack of ability, industry and specialized education rather than because of discrimination based on her sex; and third, that the Regulation applicable to the proceeding did not empower the Commission (1) to award damages and counsel fees and (2) to order CWA to undertake an affirmative action plan. As to the jurisdictional argument, we note that this case began in 1972 when Sally Marshall, then Kraus, an employee of CWA, filed a complaint of sex discrimination in employment with the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. § 2000e et seq. The complaint was referred in accordance with the Act to the Commission where she filed another complaint form. The Commission determined probable cause to exist and ordered a hearing which was held in September and October 1973. While the proceeding was in progress and awaiting decision by the Commission, complainant Marshall was issued a "right to sue" letter in accordance with the Act. 42 U.S.C. § 2000e-5(f)(1). Thereupon, in July 1974 she filed a complaint in the federal district court here. In November 1974 the district court ordered complainant's case "stayed until expiration of the time for noting an appeal of the final order of the Commission . . . or the final disposition of any appeal so taken." CWA contends (Brief at 12-13) that "[t]he aggrieved employee should have the right either to file suit or to pursue the administrative remedy, but not both, either concurrently or consecutively." (Emphasis added.) Specifically, CWA urges (Brief at 18) that "[b]y obtaining a `right to sue' letter and filing suit [in the federal district court] before entry of a final order [by the Commission], complainant effectively divested the Commission of its adjudicatory function and its power to issue a final order." (Emphasis added.) Petitioner has referred to us no authority, and we have found none, to support the proposition that one who files an employment discrimination complaint with the EEOC pursuant to the Civil Rights Act of 1964, which complaint is then referred to the complainant's state or local administrative agency empowered to determine employment discrimination claims, divests that agency's jurisdiction over the complaint merely by subsequently filing a civil action based on that discrimination in the appropriate federal district court. To the contrary, the Supreme Court has expressly recognized that "legislative enactments in this area [unlawful discrimination] have long evinced a general intent to accord parallel or overlapping remedies against discrimination" and concluded Congress intended "an individual to pursue independently his right under both Title VII and under other applicable state and federal statutes." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-48, 94 S. Ct. 1011, 1019, 39 L. Ed. 2d 147 (1974) (emphasis added) (complainant may submit claim to arbitration and later bring suit in federal district *152 court). See Johnson v. Railway Express Agency, 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). Other appellate courts have approved the concurrent use of state and federal remedies in employment discrimination cases and rejected the very concept now urged upon us by CWA, viz., that Marshall was required to make an election between local and federal remedies in pursuing her complaint of employment discrimination. See Batiste v. Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1974); Cooper v. Philip Morris, Inc., 464 F.2d 9 (6th Cir. 1972); Voutsis v. Union Carbide Corp., 452 F.2d 889, 893-94 (2d Cir. 1971). Accordingly, we uphold the Commission's jurisdiction to determine her claim. We turn now to petitioner's contention that the evidence does not support the Commission's finding of discrimination on the part of CWA toward its employee Marshall because of her sex and the Commission's conclusion that CWA violated the Regulation forbidding such discrimination. Our function in review obviously is not to weigh the testimony and substitute ourselves for the trier of fact who heard the conflicting testimony, observed the adversary witnesses, and determined the weight to be accorded their testimony. Rather: [T]he function of the court in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues. The court can only perform this function when the agency discloses the basis of its order by an articulation with reasonable clarity of its reasons for the decision. There must be a demonstration of a `rational connection between the facts found and the choice made.'. . . The findings must support the end result in a discernible manner. . . . [Dietrich v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C.App.1972); citations omitted.] Unfortunately, the Commission's findings are inadequate for a meaningful review in this case because they do not, as they should, resolve the basic issues of fact raised by the evidence adduced at the hearing. Miller v. District of Columbia Commission on Human Rights, D.C.App., 339 A.2d 715 (1975). In essence, the hearing resolved itself into a conflict between Marshall's supervisors, on the one hand, and Marshall and several fellow employees (including one who had for a time supervised her work), on the other hand, as to the quality of her performance of work and the employment and promotional policies of her employer. One side testified that she was simply not qualified to advance beyond her then position with CWA in light of her lack of specialized education, her inability to do research on a long-term basis, her laggardness in meeting deadlines, her open disdain for office hours and her lack of interest in the work she was called upon to do and might have been asked to assume if ever promoted. The other side of the controversy was testimony to the effect that Marshall met her deadlines, performed her work well, desired advancement even if it meant leaving Washington for the field, ignored office hours no more than any others in the office, was not promoted while some male colleagues with less experience and no greater specialized education than she had passed her by in salary and responsibility, and a firm understanding and clear policy existing at CWA that women "professional" employees could not advance beyond a certain level of responsibility. The Commission's findings do not resolve these sharply-contested issues in a manner which allows for meaningful review. For example, a finding was (Record at 108-09) that "[T]here existed throughout complainant's period of employment. . . an atmosphere of discrimination based on sex"; and, "At times the atmosphere of discrimination based on sex was more than an atmosphere: it consisted of *153 specific remarks excluding females and preferring males [on the part] [o]f one employee in particular . . . complainant's supervisor since 1970." Given the issues of fact presented by the evidence, we are entitled, in assessing whether the evidence supports the findings, to something more precise than the findings we have before us. The inadequacy of the Commission's findings for our review carry over to the issue between the parties as to whether or not CWA engaged in retaliatory acts against Marshall after she filed her complaint before she terminated her employment. The Commission in its findings stated that "[t]he record supports the allegation [by Marshall]" and cites three actions on the part of CWA: (1) her job title was changed but her duties remained the same, (2) she was placed under the supervision of "a new employee who turned in written reports regarding her work," and (3) her office "alone" was reassigned "during an office reorganization." However, the record reflects that evidence was adduced at the hearing of a reason for each of these three "acts" by CWA.[1] We deem the Commission has failed to give "a concise statement of the conclusions upon each contested issue of fact" it had reached,[2] and the case must be remanded for further findings and conclusions. Petitioner's final contention is that the Commission was not empowered under the Regulation applicable to this proceeding to award money damages and counsel fees to complainant and to order CWA to undertake an affirmative action plan of employment. Petitioner argues (Brief at 20-21): At the time the complaint was filed (June, 1972), the investigation conducted, conciliation attempted, and hearings held (September and October, 1973) there was no valid legislative or regulatory authority permitting the Commission to award money damages for back pay, pain and suffering, attorney fees or any other reason. The conduct with which the hearings were concerned terminated on September 5, 1973, two days before the initial hearing, when complainant's resignation from CWA's employ became effective. At that date there was no authority for any remedial action by the Commission other than to issue "its conclusions and recommendations for correction of the illegal practice". Preliminarily, we note that D.C.Pol.Reg. Art. 47, § 9(b), proscribes discrimination in employment and provides that upon a finding of discrimination respondent is to be served with "conclusions and recommendations for correction of the illegal practice." Similar general language, without explicit reference to the award of money damages and counsel fees, was employed in *154 D.C.Pol.Reg. Art. 45, § 9(b), proscribing discrimination in housing.[3] We concluded in Mendota Apartments v. District of Columbia Commission on Human Rights, D. C.App., 315 A.2d 832 (1974), that such general language was inadequate to authorize an award of money damages and counsel fees and an order to take certain affirmative action. It follows in our view from Mendota that Article 47 did not empower the Commission upon a finding of discrimination to award money damages and counsel fees and to order an affirmative action plan. Respondent and intervenor respond that the City Council on November 16, 1973, after (a) the hearing on Marshall's complaint had ended, and (b) Marshall's employment with CWA had terminated, but before the Commission issued its final Order in 1975, supplanted the Articles referred to above by new Regulations. 20 D.C.Register 345, Reg. No. 73-22 § 1 (1973) expressly empowered the Commission in employment discrimination cases to award money damages and counsel fees. However, that Regulation, codified at 34 DCRR, § 33.4(a) (1973), provides in pertinent part that Article 47 of the District Police Regulations under which Marshall brought her complaint (as well as certain other Articles) "are hereby repealed [but]. . . Any regulation superseded by the provisions of this Title, shall remain in full force and effect for the purpose of any. . . administrative proceeding pending at the effective date of this Title. . ." (emphasis added). Petitioner argues from this (Reply Brief at 2) "that cases pending on November 16, 1973 [e. g., the instant case] continue to be controlled by Article 47 [no proviso therein for money damages, counsel fees and affirmative action plan], not by new Title 34 [where the Commission is authorized therein to make the kind of award it made in this case]." Given the specific mandate by the Council that the particular Article of the Police Regulations extant when Marshall's complaint was filed "shall not be nullified" and "shall remain in full force and effect for the purpose of any . . . administrative proceeding pending," we see no alternative but to conclude that Article 47 of the Police Regulations in effect at the time of (a) the filing of the complaint and (b) the hearing of the evidence must govern the decision of the Commission. Our reading of the Council's Regulation as requiring prospective application is consistent with a further proviso in the Council's Regulation No. 73-22 calling for the development and then submission to the Council of "guidelines . . . with regard to compensatory damages and attorneys fees." 34 DCRR, § 33.4(a).[4] Accordingly, we conclude in the instant case that (1) the award of monetary damages and counsel fees and (2) the order to adopt an affirmative action plan were, under the circumstances here, beyond the authority of the Commission to order. The case is remanded to the Commission with direction to make findings in accordance with the principles set forth in this opinion and to vacate its order insofar as it awards damages and counsel fees to Marshall and directs CWA to develop an affirmative action plan for employment of women. So ordered. NOTES [*] Sitting by designation pursuant to D.C.Code 1973, § 11-707(a). [1] Thus, CWA presented testimony that there was a general reassignment of office space; that the "new employee" was a senior research economist who was asked by Marshall's supervisor to double-check his own unfavorable evaluation of the performance of her duties, and that her title was changed to reflect the increased responsibility she had been given. By citing this testimony we do not mean to suggest it should have been credited by the trier of fact; but only that such evidence created issues that the Commission should have determined before reaching the conclusions it stated so that the parties and this court in review can know the reasoning employed by the Board. See D.C.Code 1973, § 1-1509(e). [2] Other basic issues of fact that should have been resolved are whether Marshall was denied a chance to take an assignment in the field or preferred for personal reasons to remain in headquarters; the nature of the duties of the field positions and whether Marshall was competent to perform them; whether Marshall's supervisor in evaluating her capability permitted a bias to influence that evaluation; and whether CWA in fact pursued a policy of excluding women from employment in the field. [3] The Commission upon a finding of housing discrimination may require the respondent "to cease and desist from such unlawful conduct and to take such affirmative action as will effectuate the purpose" of the Article. [4] Such guidelines were proposed, submitted for review by the Council and finally issued but a few days before the decision was rendered in the instant case. Thus, these guidelines and their impact on this case were not available for comment from the parties during this proceeding.

2013-10-30 06:32:42.642554+00

Per Curiam

535 S.W.2d 450 (1976) Tom E. BEAL, Petitioner-Appellant, v. INDUSTRIAL COMMISSION and Division of Employment Security, Respondents. ROY WILLEY, INC., Petitioner-Respondent, v. INDUSTRIAL COMMISSION and Division of Employment Security, Appellants. Nos. KCD 27006, KCD 27548. Missouri Court of Appeals, Kansas City District. December 8, 1975. Motion for Rehearing and/or Transfer Denied January 12, 1976. Application to Transfer Denied March 8, 1976. *452 George T. O'Laughlin, Thomas M. Moore, and Miller & O'Laughlin, P. C., Kansas City, for appellant Tom E. Beal in No. 27006. Lloyd G. Hanley, Jefferson City, for respondent Industrial Commission in No. 27006. Terry C. Allen, Jefferson City, for respondent Div. of Employment Security in Nos. 27006 and 27548. Charles B. Fain, Jefferson City, for appellant Industrial Commission in No. 27548. Thomas J. Downey, Jefferson City, William W. Beckett, Columbia, for respondent Roy Willey, Inc., in No. 27548 and for amicus curiae Missouri Real Estate Assn. in No. 27006. Before WASSERSTROM, P. J., and DIXON and SHANGLER, JJ. Motion for Rehearing and/or Transfer to Supreme Court # KCD 27548 Denied January 12, 1976. PER CURIAM. Appeal No. 27006 by Tom E. Beal from order affirming decision of the Industrial Commission of Missouri that he became, effective January 1, 1966, an employer subject to the Missouri Employment Security Law, combined (for decision and opinion) with appeal No. 27548 by the Industrial Commission of Missouri and the Division of Employment Security from order reversing and remanding, for proceedings not inconsistent with declarations of law made by the court, decision of the Commission that Roy Willey, Inc., had certain licensed real estate salesmen in "employment" subject to the Missouri Employment Security Law. See Chapter 288, RSMo 1969, Employment Security (the Act). On February 2, 1968, the Division of Employment Security notified Tom E. Beal, a real estate broker operating under the name Florida Realty Company, that he was an employer subject to the provisions of the Missouri Employment Security Law for the years 1964, 1965, and 1966, and that his commission salesmen and solicitors were employees within the meaning of the Act. He sought redetermination by the Division and, after two hearings, the Division decided that he was an employer subject to the Act as of January 1, 1966. The decision was affirmed by the trial court. Appeal No. 27006 followed. On May 5, 1972, the Division of Employment Security determined that commission salesmen for Roy Willey, Inc., a real estate brokerage corporation, were performing services in employment under the Act. The *453 determination was appealed and an appeals referee, after hearing, affirmed the determination. The Industrial Commission of Missouri denied application for further review, thereby adopting the decision of the referee, which decision is the decision of the Industrial Commission for judicial review. Handley v. State, Division of Emp. Security, 387 S.W.2d 247, 248 (Mo.App. 1965); § 288.200, RSMo. Upon review, the court found that Willey's salesmen were not in employment within the meaning of the Act, and reversed and remanded the Commission's decision. Appeal 27548 followed. Section 288.210, RSMo 1969, governing judicial review of decisions of the Industrial Commission, provides: "* * * In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence * * * shall be conclusive, and the jurisdiction of said [circuit] court shall be confined to questions of law." And, "It is the function of this court * * to determine whether the findings and decision of the Commission are authorized by law and are supported by competent and substantial evidence on the whole record, whether that tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it, and whether the circuit court on review properly ruled the issue." Handley v. State, Division of Emp. Security, supra, 387 S.W.2d l.c. 251[1]. The court is not bound by the Commission's findings on questions of law; and, in the interpretation of applicable statutes, the court's duty is to determine legislative intent from the words used by applying their plain, natural meaning to promote the object of the Act. Bussman Mfg. Co. v. Industrial Commission, 335 S.W.2d 456, 459-460[1-3] (Mo.App.1960); Crawford v. Industrial Commission, 482 S.W.2d 739, 741[3, 4] (Mo.App.1972). In 1966, Tom E. Beal maintained offices at 3706 Broadway, Kansas City, Missouri, and 111 South Meramec, Clayton, Missouri. He engaged clerical office workers, commission telephone solicitors, and commission real estate salesmen in his business. His solicitors worked in his offices and in their homes. They were paid at a rate of $3.00 for each appointment made and $5.00 for each sale resulting from an appointment. They were guaranteed $1.65 per hour. He did not have four or more individuals (excluding salesmen and brokers) in this employment for the required portion of a day in each of twenty different calendar weeks in 1964 and 1965 but, including office workers, solicitors and salesmen, four or more individuals performed services for him for some portion of a day in twenty or more calendar weeks in 1966 and thereafter. Thomas E. Beal had a determination from the United States Department of the Treasury that he was not required to withhold federal payroll tax or to withhold under the Federal Insurance Contributions Act with respect to his salesmen and solicitors. Thomas E. Beal and his salesmen all considered salesmen to be independent contractors. He did not provide office space for his salesmen; however, telephones were available for their use. Roy Willey, Inc., had eleven licensed salesmen, eight of whom were actively engaged in selling real estate. Such salesmen were associated with Willey, Inc., by contract, the nature of which was to treat the salesmen as independent contractors. Willey, Inc., maintained an office in Columbia, Missouri, in the conduct of its business, and made available desks and telephones for the convenience of its salesmen in addition to other desks and telephones for use of its nonsales persons and officers. Willey, Inc., also withheld no federal or state income and social security taxes and maintained no workmen's compensation insurance. The remainder of the pertinent facts are common to both Thomas E. Beal and Roy Willey, Inc.: Real estate salesmen were not required to spend any time in the office or to attend meetings; services were generally performed outside the office, sales were usually closed in homes and the contracts brought to the broker or broker's office where the transactions were completed and salesmen received their commissions; salesmen *454 were not reimbursed for expenses, nor were they furnished automobiles, drawing accounts, or expense accounts; salesmen were not required to make any certain number of calls, nor were sales quotas established; compensation was solely by commission on completed sales; salesmen had no specific hours and could engage in other occupations. Pertinent sections of the Missouri Employment Security Law are: 288.032. "Employer" means: "(1) Any employing unit which for some portion of a day, in each of twenty different calendar weeks, within a calendar year, had in employment, but not necessarily simultaneously, four or more individuals * * *." 288.034. "Employment" means: "(1) Service, including service in interstate commerce, performed for wages or under any contract of hire, * * *. "(2) The term `employment' shall include an individual's entire service, performed within or both within and without this state if "(a) The service is localized in this state; * * * * * * * * * "(5) Service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that "(a) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and "(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all places of business of the enterprise for which such service is performed; and "(c) Such individual is customarily engaged in an independently established trade, occupation, profession or business." "288.036. `Wages' means all remuneration payable or paid, for personal services including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash." Effective October 13, 1965, Subsection (5), Section 288.034 was amended to read: "Irrespective of the usual tests for determining the existence of the independent contractor relationship as at common law, service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that [See (a), (b), (c) above]." Also pertinent are certain sections from Chapter 339, RSMo. 1969, "Real Estate Agents and Brokers": 339.010. "1. A `real estate broker' is any person, copartnership, association or corporation, foreign or domestic, who advertises, claims to be or holds himself out to the public as a real estate broker or dealer and who for a compensation or valuable consideration, as whole or partial vocation, sells or offers for sale, buys or offers to buy, exchanges or offers to exchange the real estate of others; or who leases or offers to lease, rents or offers for rent the real estate of others; or who loans money for others or offers to negotiate a loan secured or to be secured by a deed of trust or mortgage on real property. "2. A `real estate salesman,' within the meaning of this chapter, is any person, who for a compensation, or valuable consideration becomes associated, either directly or indirectly with a real estate broker to do any of the things above mentioned, as a whole or partial vocation." 339.020. "It shall be unlawful for any person, copartnership, association or corporation, foreign or domestic, to act as a real estate broker or real estate salesman, or to advertise or assume to act as such without a license first procured from the Missouri real estate commission." 339.150. "No real estate broker shall pay any part of a fee, commission or *455 other compensation received by the broker to any person for any service rendered by such person to the broker in buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate, unless such a person is a licensed real estate salesman regularly associated with such broker, or a licensed real estate broker, or a person regularly engaged in the real estate brokerage business outside of the state of Missouri." Appellant Beal (No. 27006) charges the court erred in affirming the decision of the Industrial Commission, asserting and arguing: (A) that under the controlling case law, A. J. Meyer & Co. v. Unemployment Comp. Commission, 348 Mo. 147, 152 S.W.2d 184 (1941), the evidence shows that his real estate salesmen and solicitors were not in employment subject to the Missouri Employment Security Law because of a lack of a necessary employer-employee relationship, due to a lack of control exercised by him over his salesmen; (B) that the 1965 amendment to Section 288.034(5), supra, "strictly construed," does not change the applicability of prior decisions, notably A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, Handley v. State, Division of Emp. Security, supra and National School of Aero. v. Division of Employment Sec., 226 S.W.2d 93 (Mo.App.1950), to the effect that persons similar to his real estate salesmen and solicitors are not within the meaning of the Act; and (C) that the findings of the Commission are contrary to the evidence in that the Commission used a test of "economic dependency" to determine that his salesmen did not satisfy the requirement for exclusion from the Act in Section 288.034(5)(c), and in that "there is absolutely no substantial and competent evidence [of control] to support finding the solicitors * * within the coverage of the Act." Respondents Industrial Commission and Division of Employment Security (No. 27006) take the position (I and II) that the court did not err in affirming the decision of the Commission because it was supported by the substantial and competent evidence on the whole record; (III) that the Missouri Real Estate Law, Chapter 339 RSMo.1969, is properly for consideration in resolution of the issues; and (IV) that the Act, by its provisions and under case law, Section 288.020.2, RSMo., Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, 579 (1946), must be liberally construed to accomplish its purpose of promoting employment security and, by such construction, ascertain the intent of the legislature from the plain and rational meaning of the language used. In reply, appellant Beal again charges the court erred (I) in affirming the decision of the Industrial Commission now asserting and arguing (A) that the evidence "requires the conclusion" that the relationship between his salesmen and him was that of joint venturers, as in H. J. Bernard Realty Co. v. Director of Employment Security, 104 R.I. 651, 248 A.2d 245 (1968), and therefore was not subject to the Act; (B) that the 1965 amendment to Section 288.034(5), quoted above, did not create a new "economic dependence" test for determining whether an individual is covered by the Act; (C) that Chapter 339 RSMo. had no application to questions of coverage by the Missouri Employment Security Law. Appellant Beal contends also in reply (II) that specific exclusion of commission insurance salesmen from coverage under the Act does not require inclusion of commission real estate salesmen "by way of negative implication." Appellant Beal is joined by amicus curiae Missouri Real Estate Association (now Missouri Association of Realtors). Counsel for amicus curiae is also counsel for respondent Roy Willey, Inc., and the position taken is the same in substance in both instances. Appellants Industrial Commission and Division of Employment Security (No. 27548) take a position, the substance of which is the same as their position as respondents in No. 27006. They contend (I) that the court erred in reversing the decision of the Industrial Commission because the Commission's findings of fact and conclusions of law were supported by substantial and competent evidence on the whole record and were, therefore, *456 conclusive; and, accordingly, the decision, that Willey, Inc., had certain licensed real estate salesmen "in employment," and that all compensation paid to them by Willey, Inc., constituted "wages" under the law, was reasonable and proper. They charge also (II) that certain of the court's conclusions of law were erroneous because: (1) the intent of the legislature in its 1965 amendment to Section 288.034(5) was to vitiate A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra, which predate the amendment; (2) real estate commission salesmen, such as those associated with Willey, Inc., do not meet the exclusionary test of Section 288.034(5)(c), in that they are not customarily engaged in an independently established trade, occupation, profession or business, and are, therefore, in covered employment performing services for Willey, Inc., for wages; (3) by the maxim "expressio unius est exclusio alterius" such salesmen come under the Act; (4) economic dependence of a commission real estate salesman on the broker with whom he is associated is properly considered in determining the relationship between salesman and broker and whether the salesman is customarily engaged in an independently established trade, occupation, profession or business under Section 288.034(5)(3); (5) appellants' present construction of Section 288.034(5), that commission real estate salesmen of Willey, Inc., are "in employment" and subject to the Act, is not unlawful because the 1965 amendment to Section 288.034(5) mandated such construction as opposed to the construction accorded by the courts and the Division prior to the amendment; (6) commission real estate salesmen such as those associated with Willey, Inc., perform services for wages for Willey, Inc.; (7) it is not contrary to public policy and the purpose and intent of Chapter 288 to tax Willey, Inc., on wages paid to its commission real estate salesmen in that such persons may qualify for benefits; (8) even though taxing provisions must be strictly construed, the court must give proper consideration to the legislative intent reflected in the 1965 amendment to Section 288.034(5). Respondent Roy Willey, Inc., (No. 27548) takes the position (I) that the circuit court's reversal of the Commission's decision is consistent with the case law of A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra, that independent contractors, including commission real estate salesmen, are not "in employment" under Chapter 288, RSMo.1969; that the circuit court was correct: (II) in determining that the Real Estate Law, Chapter 339, RSMo. has as its primary purpose, protection of the general public in real estate transactions and does not require real estate brokers and their salesmen to be in an employer-employee relationship, (III) in determining that the Commission's decision unlawfully found Willey's real estate salesmen outside the test of Section 288.034(5)(c), on the ground that real estate salesmen are economically dependent on the broker with whom they are associated, (IV) in finding that the Commission's decision was contrary to the existing case law of A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, (V) in finding that the Commission's decision was unlawful in determining that real estate salesmen are "in employment" under the Act through application of the maxim expressio unius est exclusio alterius, (VI) in finding that the Commission's decision was contrary to public policy and the intent of Chapter 288, RSMo., because real estate salesmen cannot qualify for unemployment benefits, (VII) in finding the Commission's decision was unlawful in its conclusion that Section 288.034(5)(c), for purposes of exclusion of a real estate salesman, requires him to have an independently established trade, occupation, profession, or business with no affiliation or relationship to others, (VIII) in finding the Commission's decision unreasonable and unlawful because a finding that Willey's real estate salesmen are not excluded from the Act under Section 288.034(5), is not supported by competent and substantial evidence, (IX) in refusing to defer to the Commission with respect to Chapter 339 because questions thereunder raised *457 "a judicial issue," and (X) in that the Act is a taxing statute and, when strictly construed against the taxing authority, it does not appear that respondent Willey, Inc., is subject to it. The relative positions, contentions, and assertions of the parties have been stated in detail to demonstrate that the questions for resolution are common to both appeals. There is no question that appellant Beal and respondent Willey, Inc., are each an "employer" within the definition of Section 288.032, supra, if their commission real estate salesmen are "in employment" under Section 288.034, supra, because the evidence shows at least four such individuals were associated with each of them for the requisite time. Nor is there any question of inclusion of such salesmen into "employment" under the Act by way of Section 288.034(5)(a) and (b), because the Commission takes the position that their inclusion is solely by way of Section 288.034(5)(c), in that there is nothing to show that such individuals, in the performance of services for appellant Beal and respondent Willey, Inc., were customarily engaged in an independently established trade, occupation, profession, or business. The principal question is whether commission real estate salesmen associated with appellant Beal and respondent Willey, Inc., are "in employment" within the intent and purpose of the Missouri Employment Security Law, Chapter 288, RSMo. There is no question that prior to its amendment, effective October 13, 1965, Section 288.034(5) had been construed to mean that commission real estate salesmen were not "in employment" of real estate brokers with whom they were associated; that "employee" and "employer" were used in the Act in their ordinary and usual sense; and the test of Section 288.034(5)(a)(b)(c), commonly called the ABC test, was the usual and proper test for determining the existence of an independent contractor relationship; that the definition of "employment" was no broader than the common-law concept of master and servant; that in drafting the Act, the legislature intended the common-law test of employment relationship to be also the test of whether an individual is "in employment" as defined by the statute or has the status of an independent contractor. A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, 152 S.W.2d l. c. 192; Handley v. State, Division of Emp. Security, supra, 387 S.W.2d l. c. 252. Appellant Beal and respondent Willey, Inc., argue that the language added by the 1965 amendment did not change the applicability to or impair the control of the above cases on the questions now presented. The Commission argues that legislative intent of the 1965 amendment was to vitiate the prior decisions and to broaden unemployment compensation coverage under the Act to the extent that in these two situations commission real estate salesmen would be covered by the Act. Since these cases arose after the 1965 amendment, it is necessary to determine the intent and purpose of the legislature in amending Section 288.034(5), and to be guided accordingly in the resolution of the stated question. Among the established and recognized rules for ascertaining legislative intent are: Courts must consider the object sought to be obtained and the evil sought to be remedied, must assume that the legislative purpose is a reasonable one and that laws are presumed to have been enacted for the benefit of the community, that the intention was to enact an effective law and to make some change in the existing law. In re Tompkins' Estate, 341 S.W.2d 866, 872[8] (Mo.1960). It is also recognized that a change in a statute is ordinarily intended to have some effect, and that the legislature will not be charged with having done a meaningless act. State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 212[2] (Mo.1973). It is also appropriate to consider the history of the statute, the presumption of the legislature's knowledge of the law to be amended, the surrounding circumstances, and the ends to be accomplished. Protection Mutual Ins. Co. v. Kansas City, 504 S.W.2d 127, 130[3] (Mo.1974). *458 Accordingly, Section 288.034(5), as amended in 1965, is to be construed with the idea that the legislature intended to accomplish something by its additional language and was aware of the construction accorded the section as it read prior to its amendment. Wigand v. State Dept. of Public Health and Welfare, 454 S.W.2d 951, 956[11] (Mo.App.1970). Thus, "Since the legislature is presumed to know the prior construction of the original act an amendment substituting [or adding] a new phrase for one previously construed generally indicates that a different interpretation be given the new phrase as the old phrase as interpreted no longer expresses the legislative will." Salitan v. Carter, Ealey and Dinwiddie, 332 S.W.2d 11, 14 (Mo.App.1960), citing and quoting 1 Sutherland, Statutory Construction No. 1930 (3rd ed.) 1943. A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, 152 S.W.2d l. c. 191, recognized, as suggested by both appellant Beal and respondent Willey, Inc., that the Act includes taxing provisions and such provisions are to be strictly construed against the taxing authority. However, it has later been recognized that the general purpose of the Employment Security Law is to provide for the compulsory setting aside of unemployment reserves for the benefit of persons unemployed through no fault of their own, and that the Act is to be liberally construed. O'Dell v. Division of Employment Security, 376 S.W.2d 137, 141-142[2, 3] (Mo.1964). Thus, it appears that the taxing provisions of the Act are incidental to its paramount and remedial purpose of relief, and a liberal construction of "employer" and "employment" is warranted to secure that purpose. Under the above principles of statutory construction, and in view of the construction of the prior statute in A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, the Commission argues that the 1965 amendment of Section 288.034(5) shows that the legislature intended to include in its definition of "employment" the service of certain individuals who were independent contractors at common law, and to exclude only those individuals whose services conformed to the literal wording of Section 288.034(5)(a)(b)(c), thus vitiating, to that extent, A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, and Handley v. State, Division of Emp. Security, supra. Appellant Beal and respondent Willey, Inc., contend that the 1965 amendment did not change the requirement that the individual's service must come within the common-law master and servant relationship, and that until the legislature defines "employee" in the Act, the common-law test prevails. They assert also that it is unnecessary to show "to the satisfaction of the Division" that the three tests of Section 288.034(5)(a)(b)(c) are fulfilled unless the Commission first determines that a real estate salesman is performing services for wages for a real estate broker. The argument of the Commission prevails, and the theory of appellant Beal and respondent Willey, Inc., fails upon consideration of the plain meaning of the words of the provision after amendment. Section 288.034(5) states that services performed by an individual for wages shall be deemed "employment" unless it is shown to the satisfaction of the Commission that each of the tests, Section 288.034(5)(a)(b)(c), are met, irrespective of the usual tests for determining the existence of the independent contractor relationship at common law. Such plain language demonstrates that the legislature no longer favored the common-law test recognized in A. J. Meyer & Co. v. Unemployment Comp. Commission, supra. To say otherwise would be to charge the legislature with a meaningless act. Support for this construction of Section 288.034(5), as amended 1965, arises also from the history of the Act subsequent to its amendment. Judicial notice may be taken that the legislature has attempted to enact new legislation and failed, or has enacted new legislation. Osterloh's Estate v. Carpenter, 337 S.W.2d 942, 946[6] (Mo. 1960). In this respect, legislation was proposed in 1973 (and failed to pass) which would specifically include real estate brokers *459 and salesmen in the exclusionary provisions of Section 288.034; and in 1975 the legislature repealed Section 288.034 and enacted in its place a new Section 288.034 including Section 288.034.12, which provides: "The term `employment' shall not include: * * * (12) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, or as a real estate salesman, or as a real estate broker, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions." Failure of the 1973 bill to pass indicates the legislature did not then intend to change Section 288.034 as amended 1965 to exclude real estate salesmen from the Act; and unless real estate salesmen were included under the Act by the 1965 amendment, there would have been no purpose in enacting the exclusionary provision, Section 288.034.12(12), in 1975. With respect to questions involving the maxim expressio unius est exclusio alterius (the express mention of one thing causes the exclusion of the other), the Commission, in its suggested application of the maxim, refers to Section 288.034(6), which provided at the time this controversy arose: "The term `employment' shall not include: * * * (l) Service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all such service performed by such individual for such person is performed for remuneration solely by way of commissions * * *." The Commission argues that such express exclusion of commission insurance agents and solicitors from "employment" demonstrates the continued inclusion of commission real estate salesmen. Appellant Beal and respondent Willey, Inc., assert that the maxim does not so apply. They contend that the legislative intent is shown by a 1972 amendment to Section 288.034, which provided: "(6) The term `employment' shall include service performed for wages as an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or drycleaning services, for his principal; or as a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations, provided * * *." Their argument is that this amendment reflects the intention that independent contractors should not be deemed "in employment" unless placed there by specific legislative action. The maxim is simply a product of logic and common sense and an aid to construction. It expresses the learning of common experience that generally when people say one thing they do not mean another. 2A Sands, Statutes and Statutory Construction, § 47.74 (4th ed. 1973, revising 3rd ed. of Sutherland, Statutory Construction). Consideration of the two foregoing sections together shows that commission real estate salesmen parallel commission insurance agents and solicitors as mentioned in Section 288.034(6)(l), as originally enacted, rather than those relationships mentioned in the 1972 amendment to Section 288.034(6). Consequently, the logic of the maxim is best applied in this case to Section 288.034(6)(l), in effect at the time this controversy arose, to state that the express exemption of commission insurance agents and solicitors from its definition of "employment" shows that the legislature did not intend to exempt commission real estate salesmen. The relationships included in "employment" in the 1972 amendment to the section are not similar to commission insurance agents and solicitors or to commission real estate salesmen. "The maxim * * * is applicable only where in the *460 natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the statute." 82 C.J.S. Statutes § 333, p. 670. See also, Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713[1] (Mo.1965); Poletti v. Estate of Poletti, 510 S.W.2d 850, 852 (Mo.App.1974). This conclusion is also supported by noting that an express exclusion of commission real estate salesmen from the definition of "employment" could have been accomplished simply by adding "or as a real estate salesman, or as a real estate broker" following the exclusion of "Service performed by an individual for a person as an insurance agent or as an insurance solicitor" in Section 288.034(6)(l) as it existed during this controversy, which is exactly what the legislature did by the 1975 enactment of Section 288.034.12(12). Equally as important as the principal question and necessary to its resolution is whether commission real estate salesmen associated with real estate brokers Beal and Willey, Inc., were "customarily engaged in an independently established trade, occupation, profession or business" so as to exempt them under Section 288.034(5)(c) from the definition of "employment" of Section 288.034. The Commission determined that such commission real estate salesmen were performing services for "wages" because they were economically dependent upon a broker and could not by law operate independently of a broker, and thus failed to satisfy the test of Section 288.034(5)(c) for exemption. Appellant Beal and respondent Willey, Inc., contend that such findings are unlawful, arguing that economic dependence is not a standard for determination of the employer-employee relationship, and that the Missouri Real Estate Law, Chapter 339, RSMo., has nothing to do with the determination. As previously indicated, the Commission does not contend that the commission real estate salesmen associated with real estate brokers Beal and Willey, Inc., do not meet conditions (a) and (b) of the so-called ABC test of Section 288.034(5)(a)(b)(c), but does contend that such salesmen are not shown to be engaged in an independently established trade, occupation, or business so as to exempt them from the Act. Tests similar to that of Section 288.034(5)(c) have produced differing interpretations in other jurisdictions. For example, in Rhode Island the relationship between real estate salesman and broker has been characterized as a joint venture with neither side obligated to the other, and the remuneration is paid by a third party. In such case, real estate salesmen were held not to be in employment performing services for wages. H. J. Bernard Realty Co. v. Director of Employment Security, supra. In Tennessee, real estate salesmen were held not to be performing services for wages where their commissions were paid by parties to the sale and not by the broker. Guaranty Mortgage Co. v. Bryant, 179 Tenn. 579, 168 S.W.2d 182 (1943). However, in Oregon and Wyoming, real estate salesmen have been held to have performed services for a broker for remuneration so as to subject the broker to the unemployment compensation law. Rahoutis v. Unemployment Comp. Commission, 171 Or. 93, 136 P.2d 426 (1943). See Ben Realty Co. v. Employment Security Commission, 416 P.2d 220 (Wyo.1966). The leading cases in Missouri, principally A. J. Meyer & Co. v. Unemployment Comp. Commission, supra, in their characterization of the relationship which a real estate salesman bore to his broker, that of independent contractor, did not, as previously demonstrated, deal with the issue now presented under Section 288.034(5)(c) as amended in 1965. In Illinois, "[O]ne who is engaged in an independent enterprise is an individual who has a proprietary interest in such business to the extent that he can operate same without hindrance from any individual whatsoever and whose business also is free from control." Murphy v. Daumit, 387 Ill. 406, 56 N.E.2d 800, 805[2] (1944). In Maine, satisfaction of the test requires "a proprietary interest in an occupation or business to the extent that he could operate without *461 hindrance from any source * * *." Hasco Mfg. Co. v. Maine Emp. Security Commission, 158 Me. 413, 185 A.2d 442, 445[6] (1962). The Commission argues that commission real estate salesmen are, by virtue of Sections 339.010 and 339.150, supra, economically dependent upon their brokers and thus are not customarily engaged in an independently established trade, occupation, profession, or business. Appellant Beal and respondent Willey, Inc., argue that the sole purpose of Chapter 339, RSMo., is the protection of the general public in real estate transactions. See Gilbert v. Edwards, 276 S.W.2d 611, 616 (Mo. App.1955); In re Wilson Sullivan Co., 289 N.Y. 110, 44 N.E.2d 387 (1942). And, citing Louis A. Demute, Inc. v. Michigan Employment Sec. Commission, 339 Mich. 713, 64 N.W.2d 545 (1954), and California Employment Stabilization Comm. v. Morris, 29 Cal. 2d 419, 172 P.2d 497 (Cal. banc 1946), they contend that the real estate law should not be read into the employment security law to find an employer-employee relationship between real estate brokers and salesmen. It is not necessary to read the Missouri Real Estate Law, Chapter 339, RSMo., into the Missouri Employment Security Law, Chapter 288, RSMo., in order to ascertain the relationship between a commission real estate salesman and the broker with whom he may be associated. Nor is the court required to disregard Chapter 339, RSMo., as it has been construed, in a determination of that relationship. Louis A. Demute, Inc. v. Michigan Employment Sec. Commission, supra. In this respect, "The Legislature obviously intended that real estate salesmen must be associated, either directly or indirectly, with a broker and cannot receive a commission or other valuable consideration from any person other than a licensed broker. * * * the Legislature intended that brokers be prohibited from paying any part of their commission to any person not a licensed real estate broker or salesman and to a salesman who is not directly or indirectly associated with a broker." Gilbert v. Edwards, supra, 276 S.W.2d l. c. 618-619[10]. Thus, a commission real estate salesman may be economically or financially and otherwise independent of a real estate broker by absence of "controls," A. J. Meyer & Co. v. Industrial Comp. Commission, supra, and by virtue of his successful conduct of some other independently established trade, occupation, profession, or business, e. g., carpentry, farming, teaching, or banking; yet, should he wish also to perform services and enjoy remuneration for them as a commission real estate salesman, he is not independent because he can do so only through association with a real estate broker or brokers. Consequently, commission real estate salesmen associated with appellant Beal and respondent Willey, Inc., were "in employment" within the intent and purpose of the Missouri Employment Security Law, as found by the Commission, until they were exempted from the Act by the 1975 amendment, Section 288.034.12(12). This determination is not changed by United States Treasury Department rulings that such salesmen were not employees under the Federal Social Security Act because such rulings are not binding on the court in a determination whether a salesman is an employee within the meaning of the Missouri Employment Security Law. A. J. Meyer & Co. v. Unemployment Comp. Commission, supra; National School of Aero. v. Division of Employment Sec., supra, 226 S.W.2d l. c. 97[6]. There is no evidence to support arguments advanced by appellant Beal and respondent Willey, Inc., that inclusion of their real estate salesmen in the coverage of the Act is against public policy on the ground they cannot qualify for the benefits of the Act. Accordingly, such arguments are dismissed as speculation. Appellant Beal also charges that his telephone solicitors were not "in employment" under the Act. Two types of telephone solicitors were shown to have performed services for Mr. Beal. One type worked in his office at *462 an hourly rate of pay. Solicitors of this type have previously been determined to be employees under the Act. Handley v. State, Division of Emp. Security, supra. The other type worked in their homes and were paid by appointments secured. These, together with the office solicitors, are included under the Act by virtue of the discussion, supra, of expressio unius est exclusio alterius. Under Section 288.034.12(12) their counterparts, insurance solicitors, are specifically excluded from coverage by the Act, and, by omission of real estate solicitors from the exclusionary provision, the logic of the maxim is sufficient to support the determination that real estate solicitors are included. In accordance with the foregoing, the judgment in Beal v. Industrial Commission (No. 27006) is affirmed; the judgment in Willey, Inc. v. Industrial Commission (No. 27548) is reversed with directions that the circuit court affirm the decision of the Industrial Commission. All concur.

2013-10-30 06:32:42.673635+00

Pomeroy

470 Pa. 142 (1976) 367 A.2d 1082 COMMONWEALTH of Pennsylvania v. Jacob KEEFER, Appellant. Supreme Court of Pennsylvania. Argued March 11, 1976. Decided November 24, 1976. Rehearing Denied January 26, 1977. *143 *144 Dante G. Bertini, Public Defender, Greensburg, for appellant. Louis H. Ceraso, Asst. Dist. Atty., Greensburg, Albert M. Nichols, Dist. Atty., for appellee. Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION OF THE COURT POMEROY, Justice. Appellant, Jacob Keefer, was found guilty by a jury of criminal conspiracy, robbery and voluntary manslaughter. Post-trial motions were denied, and appellant was sentenced to a term of not less than five nor more than twenty years at a state correctional institution on the robbery conviction. Terms of not less than five nor more than ten years each for the manslaughter and conspiracy convictions were imposed, both to run concurrently with the robbery sentence. This appeal followed.[1] *145 Evidence presented at trial by the Commonwealth demonstrated that on January 22, 1974 appellant, a seventeen year old juvenile, and three other individuals agreed to rob a hotel in Westmoreland County. Testimony of three codefendants established that Keefer actively participated in the planning of the robbery, suggested the premises to be robbed and drove the getaway car. During the course of the robbery, a patron, Walter Long, was shot and killed. Keefer was arrested and charged with criminal homicide arising out of the conspiracy and robbery and later indicted for murder in the criminal division of the court of common pleas.[2] He was separately charged with conspiracy and robbery in the juvenile division of the same court.[3] A transfer hearing was held at which it was determined that the conspiracy and robbery charges should be transferred to the criminal division to be tried with the homicide charge, and the jury trial which followed embraced all three of the charges. I The first issue raised by appellant is whether the robbery and conspiracy charges were properly transferred for trial from the juvenile division to the criminal division.[4] Appellant argues that because the juvenile petition *146 charged only robbery and conspiracy, both of which are delinquent acts under the Juvenile Act,[5] jurisdiction of these charges was in the juvenile division. He claims that the transfer of these charges to the criminal division is governed by Sec. 28(a)(4) of the Juvenile Act,[6] which section requires as a condition of transfer that the Commonwealth make out a "prima facie case that the child committed the delinquent act alleged" and demonstrate "that there are reasonable grounds to believe that the child is not amenable to treatment, supervision *147 or rehabilitation as a juvenile through available facilities." Appellant then asserts that at the transfer hearing the Commonwealth failed to make out such a prima facie showing, with the result that the transfer of the robbery and conspiracy charges was improper. We cannot agree with this reasoning or conclusion. Keefer's argument hinges on the erroneous assumption that the juvenile division in this case had jurisdiction over the robbery and conspiracy charges. The argument ignores the fact that he was charged not merely with robbery and conspiracy, but with murder as well. The Juvenile Act makes a clear distinction between juveniles charged with murder and those charged with delinquencies of a lesser nature.[7] The robbery and conspiracy charges here involved, although initially brought in the juvenile division, were the underlying felonies of the felony murder charge simultaneously initiated in the criminal division. We have held that in cases charging a juvenile with murder, the criminal division has original and exclusive jurisdiction over the offense, and the burden is on the juvenile "to show that he does not belong in the criminal court." Commonwealth v. Pyle, 462 Pa. 613, 622, 342 A.2d 101, 106 (1975). In the case at bar, the charges brought against Keefer in the juvenile division were part and parcel of a felony murder charge properly within the original and exclusive jurisdiction of the criminal division. Indeed, the record and briefs of the parties clearly demonstrate that the judge at the *148 transfer hearing knew that a murder was alleged to have arisen out of the offenses before him. Thus, this is not a case where the juvenile petition merely alleges conduct which if proved, would constitute acts of delinquency over which the juvenile division has original jurisdiction. It is, rather, a case where the delinquencies charged in the juvenile petition constitute an integral part of the one offense over which the juvenile court, in the first instance, had no jurisdiction whatsoever. In this situation the hearing judge was correct in transferring the underlying felonies to the criminal side of the court of common pleas. Beyond this, it would make no sense to try a juvenile as an adult on a felony murder charge in the criminal division and as a juvenile on the underlying felony in the juvenile court division. To do so would not only subject the defendant to the ordeal of two trials but also to the hazard of inconsistent verdicts and separate sentences imposed by separate judges neither of whom possesses an over-all perspective. At a time when both this Court[8] and the legislature in the recent Crimes Code,[9] have signalled that all offenses arising out of a single criminal episode or course of conduct should, in the interest of fairness to a defendant, not to speak of economy of judicial resources,[10] be tried together, it would be *149 anomalous for us to mandate a different result with respect to this juvenile charged with felony murder. II The second issue raised by appellant is whether his Fifth Amendment rights were violated when the prosecutor cross-examined him concerning a statement made to the police at the time of arrest because the statement did not include the alibi upon which appellant relied at trial. Appellant did not raise this issue in his written post-trial motions but in a petition filed at the sentencing hearing, over a year after completion of the trial.[11] The general rule in regard to the filing of post-trial motions is set forth in Rule 1123 of the Pennsylvania Rules of Criminal Procedure. In this case the Court declined to hear and rule upon appellant's additional post-trial argument. While defense counsel claims[12] that he believed the court would hear oral argument on his post-trial motions, he does not state upon what basis he formed this belief. Furthermore, even assuming that defense counsel's belief was justified, this does not excuse his failure to submit any kind of motion, written or oral, to the court until the date of sentencing, some three and one-half months after the denial of post-trial motions. Under these circumstances we cannot fault the *150 sentencing judge for rejecting appellant's request to submit an additional argument. We therefore conclude that appellant waived the Fifth Amendment issue sought to be raised therein.[13] Judgments of sentence affirmed. NIX, J., concurs in the result. NOTES [1] Appellant's judgment of sentence on the manslaughter conviction was appealed directly to this Court. Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(1), 17 P.S. § 211.202(1). He appealed the judgments of sentence on the robbery and conspiracy convictions to the Superior Court which certified the appeals to this Court on April 1, 1976. Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 503(c), 17 P.S. § 211.503(c). The appeals were consolidated for argument with the appeal from the judgment of sentence for manslaughter. [2] The arrest of appellant on the charge of criminal homicide was made on January 24, 1974, and the preliminary hearing thereon took place on January 31, 1974. The indictment which followed charged that the homicide of Walter Long occurred during the commission of a robbery. [3] A petition charging conspiracy and robbery was filed with the juvenile division on January 23, 1974. On January 28, 1974 a detention hearing was held before President Judge Weiss, who on January 31, 1974 also conducted a transfer hearing. [4] Appellant raised this issue at trial in the form of an oral motion to quash the indictments. The trial court denied the motion because appellant did not challenge the transfer in a written pretrial motion in compliance with Rules 304 and 305 of the Pennsylvania Rules of Criminal Procedure. In disposing of appellant's post-trial motions, the court en banc held that "The failure to raise this issue in writing prior to trial acted as an effective waiver of the right to challenge the certification at the time of trial. It is for these reasons that the oral motion was dismissed at that time and is found to be without merit in this subsequent written motion." While we agree that the challenge to the transfer should have been made by means of a written pre-trial motion, we believe that in light of appellant's objection to the propriety of the transfer made at the transfer hearing itself, made again at the preliminary hearing, renewed at the commencement of trial and again in post-trial motions, he has adequately preserved the issue for appellate review. [5] Act of December 6, 1972, P.L. 1464, No. 333, § 2(2), 11 P.S. § 50-102(2) (Supp. 1976-1977). [6] Section 28(a)(4) of the Juvenile Act provides as follows: "(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this State, the court before hearing the petition on its merits may rule that this act is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the trial or criminal division or to a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if:. . . "(4) The court finds that there is a prima facie case that the child committed the delinquent act alleged, and the court finds that there are reasonable grounds to believe that: (i) the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, in determining this the court may consider age, mental capacity, maturity, previous record and probation or institutional reports; and (ii) the child is not committable to an institution for the mentally retarded or mentally ill, and (iii) the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult." Act of December 6, 1972, P.L. 1464, No. 333, § 28(a)(4), 11 P.S. § 50-325(a)(4) (Supp. 1976-1977). [7] For example § 2(2) of the Act, 11 P.S. § 50-102(2) (Supp. 1976-1977), declares that a "`delinquent act' shall not include the crime of murder" and § 28(e), 11 P.S. § 50-325(e) (Supp. 1976-1977), provides that where a petition asserting delinquency of a child "alleges conduct which if proven would constitute murder, the court shall require the offense to be prosecuted under the criminal law and procedures except where the case has been transferred from the criminal court pursuant to section 7 of this act." It should be noted that at no time did appellant seek to have the trial of the murder charge transferred to the juvenile side of the court of common pleas as permitted by § 7 of the Act. 11 P.S. § 50-303 (Supp. 1976-1977). [8] See Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S. Ct. 73, 38 L. Ed. 2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S. Ct. 3172, 41 L. Ed. 2d 1139 (1974). Cf. Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1975). [9] 18 Pa.C.S.A. § 110 (1973). [10] 18 Pa.C.S.A. § 2502(b) classifies felony murder as murder of the second degree and defines it as follows: "(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or an accomplice in the perpetration of a felony." Obviously, proof of this offense would require proof of defendant's role in the underlying felonies. Were the juvenile to be tried separately for these other offenses in juvenile court, the same evidence would have to be presented in both cases. [11] Post-trial motions were timely filed on July 22, 1974, but at the same time leave was granted Keefer to file additional specific grounds in support of his written motions once the transcript was completed. The trial transcript became available on September 9, 1974, and from that date until May 16, 1975, when appellant's original post-trial motions were denied by the court en banc, appellant submitted no supplemental grounds. In fact, the record indicates that appellant took no action until October 3, 1975, the date of sentencing, at which time he presented the sentencing judge with a petition entitled "Petition for Allowance to Submit an Additional Argument to the Court En Banc" raising the Fifth Amendment issue. This petition stated that defense counsel believed the trial court would hear oral argument on the post-trial motions and that he intended to raise this issue at that time. The sentencing judge denied appellant's petition. [12] See n. 11 supra. [13] Appellant also seeks review of two issues concerning the propriety of the preliminary hearing on the criminal homicide charge. Appellant did not raise these issues in his original written post-trial motions nor did he attempt to have them considered following the denial of post-trial motions. We have held repeatedly that issues raised for the first time on appeal will not be considered. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).

2013-10-30 06:32:42.676063+00

Swofford

535 S.W.2d 504 (1976) Mary Helen LUCE, Respondent, v. Lawrence A. ANGLIN, Appellant. No. KCD 27144. Missouri Court of Appeals, Kansas City District. March 29, 1976. *505 Don B. Roberson, Richard W. Noble, Kansas City (Shughart, Thomson & Kilroy, Kansas City, of counsel), for appellant. Edmund R. Lipowicz, II, Independence, for respondent. *506 Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ. SWOFFORD, Judge. This is an appeal from a default judgment awarding damages for personal injuries, entered upon evidence adduced, in favor of the respondent (plaintiff) and a subsequent order by the trial court overruling appellant's (defendant's) alternate motion to set aside such judgment or for a new trial. This case arose from an automobile accident which occurred on March 22, 1968. Defendant was insured by Allstate Insurance Company (Allstate) and duly reported the accident to it, and Allstate undertook his defense under its policy. No issue of coverage is involved. The plaintiff retained counsel, Mr. Edmund R. Lipowicz II, who under date of May 17, 1968 advised Allstate and the defendant of his retention as plaintiff's attorney. Thereafter, Lipowicz and Allstate's claims representatives had conversations looking toward possible compromise of the claim. In April of 1971, one John Vanderlippe, a staff claims representative of Allstate, undertook these settlement negotiations, which eventually reached a stalemate with plaintiff's demand at $3500.00 and Allstate refusing to pay more than $750.00. According to the testimony of Lipowicz, there was no further contact between him and Allstate or any of its representatives after April of 1971. He filed suit on March 16, 1973, less than a week before the bar of plaintiff's claim by the statute of limitations. The following day, the defendant was personally served with process, the suit papers were forwarded to Allstate by the defendant, and it undertook the handling of the claim on his behalf. No answer was filed in the suit and on May 7, 1973, plaintiff appeared personally and by counsel for trial. The defendant made no appearance, evidence was adduced and a judgment was entered in the court below for $10,000. On June 1, 1973, the defendant, through counsel, filed his answer without obtaining leave of court, and on June 7, 1973, he served written interrogatories on plaintiff. On July 24, 1973, defendant served notice requesting that plaintiff's husband be joined in the suit. On August 22, 1973, the defendant filed a motion to compel answers to his interrogatories, which motion was sustained on September 21, 1973. Receiving no response, the defendant filed a motion to dismiss the action on October 12, 1973. Thereupon, plaintiff's attorney advised the court and counsel by letter of the default judgment (entered some five months before), and on October 29, 1973, the defendant's motion to dismiss was overruled, as moot. The defendant thereupon filed his motion to set aside the judgment or for a new trial, which the court below overruled after an evidentiary hearing. This appeal followed. The defendant raises two assignments of error, which may be summarized as follows: First, he asserts that the court erred in overruling his motion to set aside the judgment or for a new trial because (A) his default should be excused because the judgment was procured by "misrepresentation amounting to legal justification or excuse"; (B) he had a meritorious defense to plaintiff's case; (C) no prejudice "will accrue to plaintiff" by setting aside the judgment; and (D) the court below "did not exercise its discretion in conformity with the spirit of the law" favoring trials on the merits. Second, he asserts that the court erred in excluding a memorandum of claims agent Vanderlippe dated March 26, 1973 (10 days after suit was filed) which was part of Allstate's claim file on the case, which memorandum purported to reflect an oral agreement between Vanderlippe and Lipowicz, plaintiff's counsel, for an indefinite extension of time for defendant to answer the petition. Such a motion to set aside a judgment is one that invokes the sound discretion of the trial court, and this court will not interfere with the trial court's action unless the record clearly and convincingly demonstrates an abuse of such discretion. *507 Cooper v. Armour and Co., 222 Mo.App. 1176, 15 S.W.2d 946, 951[3] (1929); Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Askew v. Brown, 450 S.W.2d 446, 450[6] (Mo.App. 1970). There are a number of broad elements and considerations which should be critically viewed to test the trial court's ruling on a motion to set aside a default judgment so as to measure its action against the exercise of acceptable discretion on the one hand, and abuse of discretion, on the other hand, the former dictating non-interference at this appellate level, and the latter commanding it. It is the generally accepted rule that the burden is upon the movant in a proceeding of this nature to establish two basic and vital facts, namely, that he has a good reason and excuse for the default and that he has a meritorious defense to the claim. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Edwards v. Rovin, 322 S.W.2d 139, 142-143[4, 6] (Mo.App.1959); Ward v. Cook United, Inc., 521 S.W.2d 461, 470[11] (Mo.App.1975). These elements of proof are recognized by appellant and covered in his Points Relied On IA and IB. However, unless these two points are clearly established by the record, his Points IC (that no prejudice would accrue to plaintiff by setting aside the judgment) and ID (that the ruling of the court violated the spirit of the law favoring trial on the merits), standing alone, would be insufficient to sustain the burden placed upon defendant. In passing, it should be noted that it is too obvious for comment, that plaintiff would be prejudiced if the judgment were set aside. She pursued her substantive right to assert her claim; she obtained a hearing of her cause upon default; she presented evidence in support of her claim that the defendant's automobile struck a light pole, glanced off and struck the side of the automobile in which plaintiff was riding while it was stopped in obedience to a traffic light; and, that he had been drinking. She further offered proof of her injuries and damage. She is now the creditor under a substantial and final judgment. Further, there is no dispute that the law favors the trial of litigation on the merits, but such generalization must be carefully applied to the facts of each case in the interest of justice and has no significance in the case at bar. The law defends with equal vigor the integrity of legal process and procedural rules and does not sanction disregard thereof. There remains, therefore, as pertinent to this case, the points raised by defendant in his brief, IA and IB. Defendant asserts that his default was justified or excused because the judgment was procured by "misrepresentation"; that his insurance carrier was "lured" into the default by an agreement with plaintiff's counsel for an indefinite extension of time to file an answer; and, that if his insurer was negligent in handling the suit and thus permitted the default, that such negligence cannot be imputed to him. This record shows a direct and irreconcilable conflict in the testimony of the Allstate's claims representative, Vanderlippe, and plaintiff's counsel with reference to the purported agreement. Vanderlippe stated, in substance, that after he received the suit papers from the defendant in March, 1973, in a telephone conversation with Lipowicz an agreement was reached that a further attempt would be made to settle the case, and that Lipowicz would contact his people (plaintiff and her husband) and call back, and that Lipowicz agreed that the time to answer would be extended indefinitely. In response to the questions propounded to him by the trial court and counsel at the hearing, he stated, however, that no specific time extension was mentioned; that nothing was said as to whether or not a judgment would be taken; that he did not advise Lipowicz that an answer would not be filed until he, Vanderlippe, heard from Lipowicz; and, that the extension was just "general" until it was ascertained if the case could be settled. He stated that in this conversation he "reiterated our position", referring to the settlement offer of $750.00 made in 1971, and previously rejected. On the other hand, Lipowicz testified that he had no contact with Vanderlippe (or *508 anyone else connected with Allstate) after April of 1971, and categorically and flatly denied any agreement was made for an extension of time to file answer. Thus, the credibility of witnesses Vanderlippe and Lipowicz was directly in issue and for decision by the trial court. Obviously, the court chose to believe Lipowitz and it cannot be said that this was not based upon substantial evidence or demonstrated any abuse of discretion, and such determination of credibility will not be disturbed here. The point that Allstate's negligence, if any, cannot be imputed to defendant is likewise without merit. Distefano v. Kansas City Southern Railway Company, 501 S.W.2d 551, 553[3] (Mo.App.1973); Ward v. Cook United, Inc., 521 S.W.2d 461, 472-474[15, 16, 17] (Mo.App.1975), and cases cited therein. Defendant's Point IA is ruled against him. As to defendant's Point IB, the record is absolutely void of any showing that he had a meritorious defense to plaintiff's claim. The original pleadings have been examined and reveal that the tardy answer filed by defendant was in the nature of a general denial coupled with a charge of contributory negligence against the plaintiff as a guest in the automobile struck by defendant. Pleadings do not prove themselves. No evidence of any kind to support a defense was proffered at the evidentiary hearing on the motion to set aside the default. While defendant should not be required at that stage to present extensive evidence or a full-blown defense, he should be required to make some showing to the court of the existence of at least an arguable theory of defense. This was not done, and the only evidence before the court in this area was plaintiff's account of how the collision occurred, as stated in the default hearing. The defendant, therefore, failed to meet his burden of proof as to the existence of a meritorious defense. His Point IB is ruled against him. The defendant's Point II relates to the court's refusal to admit into evidence a memorandum dated March 26, 1973, purportedly written by claims agent Vanderlippe to himself reflecting the alleged telephone conversation with Lipowicz, following receipt of the suit papers from the defendant. This was identified as a part of the claim file on plaintiff's claim for damages which resulted in the judgment here involved. When offered, the plaintiff objected on the basis that it was a self-serving statement and not shown to be a part of the business records of Allstate. The objection was sustained. This action of the trial court is now urged by defendant as reversible error. Regardless of whether or not the memorandum was shown to be a business record under the Uniform Business Records as Evidence Act (or assuming arguendo that it was so qualified) it was nevertheless inadmissible as being self-serving. The appellant argues that since the memorandum was shown to be part of the business records of Allstate, it was automatically admissible as evidence, regardless of its contents, and also, that since Allstate was not a party to the suit, the document should not have been excluded upon the basis of its being self-serving. There is no validity to this position. The applicable statute, Section 490.680 RSMo 1969, after enumerating the necessary steps to identify the records as qualified under the Act and providing that such are admissible evidence, concludes: "* * * if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission." The trial court is given broad discretion in the applicability of and compliance with the statute. Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 683[13, 14] (Mo. banc 1959). When business records are qualified under the Act, two things are accomplished: One, possible hearsay objections to such records are eliminated; and second, the records become generally admissible. Recognizing this rule, the court in Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666[4, 5] (1956), following *509 a number of earlier cases cited therein, said: "We do not hold, however, that the proper qualification of hospital records under the Act necessarily makes all parts of the record automatically admissible. If specific and legally proper objections are made to parts of the record on grounds other than hearsay generally, such parts may be properly excluded. * * * And it has been said that the Act does not make relevant that which would not otherwise be relevant. * * * In other words, all that the Act does, essentially, is to eliminate the hearsay objection." (Emphasis supplied) While counsel have cited no Missouri case (and independent research has discovered none) which specifically applies this rule to the claim files of liability insurer carriers, there is no logical reason why such should not apply to that kind of business record. Although the defendant here did not attempt to offer the whole claim file, he attempted to qualify the whole file under the Act and then had marked as an exhibit and offered only the March 26, 1973 memorandum of Claims Agent Vanderlippe. The defendant has not filed the rejected exhibit with the court and has thus violated Rule 81.15 and the court, therefore, has had no opportunity to see its exact wording. But enough appears from the record to conclude that it contained a terse notation of the alleged agreement with Lipowicz for an indefinite extension of time to answer in substantially the same (but abbreviated) form as Vanderlippe's oral testimony. The facts as put forward by Vanderlippe were all before the court, so it is difficult to see how the admission of the memorandum would have strengthened the position of defendant, which the court did not ultimately accept in arriving at a decision. The position of the defendant on the corollary argument is somewhat obscure, but the conclusion is reached that his stand is taken, not upon the premise that the memorandum did not contain self-serving statements, but rather the objection is not tenable because Allstate was not a named party to the litigation. Prior to the 1975 decision in Ward v. Cook United, Inc., supra, the appellate courts had not undertaken to define the exact relationship of claims representatives of the insurer to insureds with reference to the events and commitments of the litigation. Indeed, as pointed out in Ward, the courts of the various jurisdictions are not in accord in this area. The weight of authority heretofore has been that the relationship was that of independent contractor. The "modern" rule is that it is one of principal and agent. Some textbook authors describe the relationship as so complex that it does not fit precisely into one of the niches of the law, and that it partakes in part of an agency relationship, that of an independent contractor, and in many cases that of a fiduciary. Appleman, Insurance Law and Practice, Vol. 7A, Section 4681, pp. 423-424, and Footnote 5 at page 424. In Ward v. Cook United, Inc., supra, 521 S.W.2d 461, 472-474[15-16] (Mo. App.1975), this court held that the relationship that existed between a defendant-insured and the claims manager of its liability insurer carrier was that of principal and agent, and that the negligence of the agent was therefore imputable to the principal. No reason has been advanced, nor does one appear, why the reasoning in Ward does not apply with equal force in the case at bar. It follows that Vanderlippe occupied the position of agent to defendant, Anglin, in the handling of the plaintiff's claim against him; that Vanderlippe's conduct of the negotiations leading to the default were the acts of and chargeable to the defendant; that Allstate though not a named defendant, was in fact a real party in interest; and, that the objection to the memorandum by Vanderlippe of March 26, 1973 (that it was self-serving) was properly sustained. To rule otherwise and permit the introduction of self-serving statements in the nature of office memoranda written by a liability insurer's claims representative to himself or any intra-office memoranda of such a nature upon the basis that the insurance *510 carrier was not a named party to the suit, could open a vista of possible abuse of appalling magnitude. Defendant's Point II is ruled against him. The judgment is affirmed. All concur.

2013-10-30 06:32:42.748303+00

Herlands

152 F. Supp. 903 (1957) UNIVERSE TANKSHIPS, Inc., Plaintiff, v. PYRATE TANK CLEANERS, Inc., Defendant. United States District Court S. D. New York. June 10, 1957. *904 *905 Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for plaintiff. John C. Crawley, Edward C. Kalaidjian, John J. Leibell, New York City, of counsel. Hill, Rivkins, Middleton, Louis & Warburton, New York City, for defendant. Allan B. Lutz, John G. Poles, James E. Kent, New York City, of counsel. *906 HERLANDS, District Judge.[1] In this action for property damages caused by an explosion aboard a supertanker, all of the crucial issues turn upon questions of credibility. The controlling evidence, for the most part presented in open court, is sharply conflicting. Mindful of its fact-finding responsibility in this non-jury case, the Court has evaluated the reliability of the witnesses in terms of the inherent persuasiveness of their testimony and their relative credibility. In making such appraisal, the Court has closely considered the demeanor of the witnesses on the stand, their manner of testifying, their frankness or lack of candor, their partisanship or impartiality, and the testimonial effect of any motive or bias. Plaintiff is the owner of the supertanker Bulkpetrol. Defendant is a professional tank cleaning company. The action seeks to recover damages for injury done to the vessel through an explosion in her No. 4 port wing tank (referred to in this opinion as "the tank"), where defendant's employees were at work. The explosion occurred at about 8:05 p. m. on December 25, 1951. Commenced as an action at law, based on diversity, the cause was transferred to the admiralty side on plaintiff's motion, made at the beginning of the trial and granted at the close of plaintiff's case, after a motion to dismiss for insufficiency of proof had been argued and denied (3562, 3629-3630). Cf. W. E. Hedger Transp. Corp. v. United Fruit Co., 2 Cir., 1952, 198 F.2d 376, certiorari denied 1952, 344 U.S. 896, 73 S. Ct. 275, 97 L. Ed. 692; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 409, 411, 74 S. Ct. 202, 98 L. Ed. 143; Pioneer Steamship Co. v. Hill, 6 Cir., 1955, 227 F.2d 262, 264; Cannella v. Lykes Bros. S. S. Co., 2 Cir., 1949, 174 F.2d 794, 797. At all of the material times plaintiff was (and is) the owner and operator of the Bulkpetrol. This steamship is a supertanker. It was built by plaintiff at Norfolk, Virginia and was completed in November 1948. It is classed A 1 (E), Oil Carrier, with the American Bureau of Shipping. The vessel is about 629 feet long over-all; 84 feet in breadth; and approximately 44 feet deep (Exhs. 13, 22, 130; Shorrock, 291-292). Defendant was and is a professional tank cleaning company. It has been engaged since 1936 in the business of cleaning and gas-freeing petroleum tanks, including both marine and land storage tanks (Kennedy, 206). The basic factual issues may be spot-lighted by stating the major questions: (1) The first involves the nature of the legal relationship between plaintiff and defendant before and at the time of the explosion. Plaintiff claims that defendant was an independent contractor and solely responsible for the proper performance of the tank-cleaning and gas-freeing job for which it was engaged. Vigorously disputing plaintiff's claim, defendant asserts it was either an employee of plaintiff or a joint venturer with respect to the tank-cleaning and gas-freeing project. The Court finds that defendant was an independent contractor at all material times. (2) The second question concerns the cause of the explosion. Plaintiff charges that the explosion was triggered by the exposure of the incandescent filament of an electric light bulb within defendant's defective droplight (Exh. 3), which was suspended by defendant in the tank by means of a cable (Exh. 69). Defendant argues that there is neither proof of the actual cause of the explosion nor of defendant's ownership of Exhibits 3 and 69. Moreover, it is defendant's position that the evidence is so inconclusive and speculative that the Court should find that the *907 explosion might have been the result of any one of a large number of equally possible causes, none of which is attributable to defendant's negligence. The Court finds that plaintiff's contention as to the cause of the explosion is established by a preponderance of the credible evidence. (3) The third question is whether defendant had reasonable ground to believe that it would be extraordinarily hazardous to risk the exposure of a burning electric bulb filament in the tank by the use of its droplight (Exh. 3) on the evening of December 25, 1951, under the conditions and circumstances then prevailing in that tank. Plaintiff claims (and defendant denies) that defendant had reasonable ground to foresee the danger of exposing a burning electric bulb filament in the tank. The Court finds that plaintiff's claim is clearly sustained by the weight of the reliable evidence. (4) The fourth question is whether defendant took ordinary care with respect to its equipment, methods and personnel, to prevent the exposure of the burning filament in the explosive, gaseous atmosphere of the tank. The Court finds that defendant was negligent in the respects indicated; and that such negligence was the proximate cause of the explosion. (5) The final question is raised by the defense contentions that, in any event, plaintiff is barred from recovery because (a) plaintiff was guilty of statutory fault in violating an applicable Coast Guard regulation, (b) plaintiff was contributorily negligent, and (c) plaintiff assumed the risk of the explosion. The Court rejects all of these defenses as without merit in point of fact and law. Two over-all groups of findings and conclusions may be summarized as follows: I. Defendant provided a defective droplight (Exh. 3) in the tank. This droplight was used by two of defendant's muckers, Ohlsen and Hofstetter, who were negligently permitted by defendant to work in that gassy tank at a time when the tank had not been properly tested for its toxic and explosive gas content. The disturbance of the droplight by Ohlsen (as he fell while in the tank) and by Israelson, another of defendant's employees (who, while stationed at the hatch opening to the tank, was simultaneously pulling on the cable in order to raise the droplight) were added links in the chain of causation. Ohlsen's and Israelson's acts, operating singly or conjointly, resulted in a moving blow of the defective Pyrex glass bowl on defendant's droplight against one of the nearby steel structures located inside the tank. This impact cracked or smashed the glass bowl and the lighted electric bulb within the bowl. As a result, the incandescent filament was exposed to the explosive gases in the tank. Instantly, there was an explosion. Ohlsen had slipped and fallen because he was made dizzy by the toxic gases in the tank. Defendant should not have permitted Ohlsen to enter the tank before it had been properly gas-tested. Ohlsen's fall was facilitated by the slippery, oily surface on which he was walking. These events and conditions were reasonably foreseeable by defendant. The consequences of these happenings could have been avoided if defendant had not used a defective droplight. Thus, the explosion was the proximate result of defendant's failure to use that measure of care with respect to its personnel, equipment and methods of work which a person of ordinary prudence would have exercised as necessary and appropriate under the circumstances prevailing on December 25, 1951 in No. 4 port wing tank. II. Plaintiff's witnesses, both lay and expert, were impressively reliable and persuasive. Their testimony established all of the material elements of plaintiff's case. The Horvitz, Stewart and Phillips expert testimony, in particular, was clear and convincing. *908 On the other hand, defendant's major lay witnesses — Allen, Kennedy, Lane and Lamanna — gave testimony which, to the extent that it differed with that adduced by plaintiff's witnesses, was unreliable. Such defense testimony appeared quite clearly to the Court to have been custom-tailored to meet the exigencies of defendant's case. The Court has substantially discounted such testimony. Defendant's two witnesses who were called as electrical experts revealed a lack of qualification and expertise. They were but poorly disguised advocates for defendant. Their testimony in this case lends clinical support to the criticism of "expert evidence" voiced by Professor Morgan and to the remedial recommendations contained in the Model Code of Evidence drafted by the American Law Institute. American Law Institute, Model Code of Evidence (1942) pp. 34-36, 198-216. Cf. 43 A.B.A. Journal (Feb. 1957), Explosion Damage Cases: Insurance Procedure and Expert Witnesses, 135, at 137. We turn now to the detailed findings and conclusions. On December 21, 1951, the Bulkpetrol arrived at Marcus Hook with a cargo of Kuwait crude oil. This cargo was discharged at the Hog Island dock of the Gulf Oil Corporation (Philadelphia) between 9:20 p. m. on December 21, 1951 and 6:40 p. m. on December 22, 1951 (Deck Log, Exh. 22; Bird, 1347). About a week or ten days prior to December 21, 1951, at the solicitation of defendant, plaintiff engaged defendant, as an independent contractor, to clean and gas-free the vessel and prepare her for a periodic overhauling at the Bethlehem Baltimore shipyard (212; 1344-1345). The contract was oral. It was entered into in New York (4285-4286), between Kennedy, defendant's secretary and business solicitor (211-212, 778-780, and Walling, plaintiff's marine superintendent (4282). It was agreed that defendant would provide the necessary labor, materials, equipment and supervision (Kennedy, 212, 780; Walling, 4289, 4312), and that the work would be done on a cost-plus basis (Kennedy, 792; Walling, 4286; Exh. 11). Pursuant to the contract, in the evening of December 22, 1951, several of defendant's employees, including its general foreman for the job, Lamanna, and its pumpman, Doyle, boarded the vessel, with their equipment, which they had brought with them by truck from defendant's headquarters at Bayside, New York (Lamanna, 3728-3730; Doyle, 3632-3633; Deck Log, Exh. 22; Hansen 511). Defendant's equipment which was put aboard the vessel included, among other things, eight droplights with cables and plugs, junction boxes, adapters, two water blowers, hose, lines, aluminum pails and shovels, rubber boots, flashlights, and other articles required for defendant's work (Exh. 66; Shorrock, 316; Allen 852-853; cf. Kennedy, 217-218; Lane, 3955-3956). Defendant's equipment included "everything * * * needed to clean that type of ship" (Kennedy, 242). Defendant's equipment included some Russell & Stoll droplights (Kennedy, 219). Plaintiff's representative aboard the vessel was Shorrock, a shore pumpman in plaintiff's regular employ, who had been assigned by plaintiff to act as the liaison between defendant's representatives and the personnel of the vessel, in order to facilitate defendant's operations, and in order to inspect the results of defendant's work (Shorrock, 274, 317; Walling, 4315-4316; Bird, 1450-1451). Shorrock's duty was to see that the results were satisfactory; it was not his duty to supervise the personnel, methods and equipment used by defendant (Walling, 4315-4316). Shorrock, as well as the officers and crew of the vessel, were duly informed that defendant, as an independent contractor, had undertaken to clean and gas-free the vessel in preparation for the Bethlehem shipyard (Bird, 1344-1347; Shorrock, 315; Hobein, 1266). The ship's pumpman, Hobein, familiarized defendant's pumpman, Doyle, *909 with the vessel's piping system and with the manner of operating the pumps (Doyle, 3640-3641, 3644; Hobein, 1159, 1266-1267, 1280, 1289-1291). Doyle (cf. 3684-3686, 3651, 3680) thereupon assumed and performed the duties for which defendant had assigned him to the vessel; and he operated the pumps and the piping valves (Lamanna, 3845-3846; Hobein, 1265-1266; Doyle, 3689; Hansen, 461). About 10 p. m. on December 22, 1951, defendant's employees commenced washing (variously described as "machining" and "Butterworthing") the vessel's tanks (Deck Log, Exh. 22). From the time when defendant's men arrived on board until after the explosion, plaintiff and its employees at no time failed or refused to provide any facility, equipment or service requested of any of them by defendant or any of defendant's employees (Lamanna, 3848). During the night of December 23rd, defendant's mucker foreman, Hansen, boarded the vessel with a crew of sixteen men (Hansen, 450) and reported to Lamanna (id., 457). During the evening of December 24, 1951, Allen, defendant's treasurer and manager of operations (Kennedy, 206) came aboard the vessel (Allen, 965-972). A considerable number of defendant's employees had quit work or had been discharged (Hansen, 458, 502); Lamanna had taken two employees from the mucking gang, in charge of defendant's mucker foreman, Hansen, and the latter had only seven muckers left (Hansen, 459; cf. Lamanna, 3840). Allen found that the mucking was considerably behind the washing (Allen, 844). Prior to Allen's arrival, Shorrock had asked Lamanna whether defendant could obtain additional men from New York (cf. Hansen, 458). Lamanna deemed that impossible because the next day was Christmas (Lamanna, 3740, 3840). Lamanna inquired of Shorrock whether members of the ship's crew might be engaged to work as muckers during their off-duty time (id., 3740). Shorrock promised to see what he could do (id., 3841). While Allen was on board the vessel in the evening of December 24th, he inquired of Shorrock whether defendant could engage crew members to work as muckers. Shorrock endeavored to reach plaintiff's office by telephone. When not successful in that telephone call, Shorrock consulted the master of the vessel, Captain Bird, who authorized defendant's employment of crew members during their off-duty hours, provided they were kept in separate gangs and their pay turned over to the master for disbursement to them (Shorrock, 322-324; Bird, 1355-1358). Allen arranged through the ship's pumpman, Hobein, to engage crew members who were willing to work for defendant during their off-duty time; and he agreed to pay them at the rate of one dollar an hour for their services (Allen, 844, 969-972; Hobein, 1167-1171). Allen placed all of the crew members so employed on defendant's pay roll, and subsequently charged plaintiff for their services at defendant's regular billing rate (Allen, 2340-2343; Exh. 11). Plaintiff's officers, who were similarly hired and paid by defendant, were under the direction, control and supervision of defendant. When such officers were so employed, they in turn gave orders to the crew members; and in so doing they were executing defendant's orders (Shorrock, 325, 1023-1027; Exh. 34). Shortly after defendant began working, Shorrock informed Lamanna that tanks which had contained Kuwait crude oil could be washed more effectively with cold water than with hot water. Lamanna changed to cold water washing (Shorrock, 318-322). Where tanks have contained Kuwait crude oil, cold water is at least as effective; and, in plaintiff's experience, had been more effective than hot water washing (Bird, 1365, Exh. 75; Shorrock, 1058-1059; Mercer, 4551-4552). The need for ventilating the tanks after they have been washed and the *910 amount of ventilation required is substantially the same whether the washing is done with hot or with cold water (Mercer, 4530, 4547-4549; Murray, 6667-6670; Bird, 1336-1337; Shorrock, 1112-1113; Purdy, 3203-3204). There was not, at any time, any order given by Shorrock or any other representative of plaintiff to Allen, Lamanna or any other representative of defendant with respect to whether defendant should use cold water or hot water or with respect to any other detail of defendant's work (Shorrock, 321-322; Allen, 972-978). After Lamanna, defendant's general foreman, had caused the No. 4 port wing tank to be washed in the morning of December 25th, he inspected it on several occasions and was dissatisfied with its appearance; he considered that it might be mucked after a blower or windsail had been used in it (Lamanna, 3749-3753, 3825-3838). It does not appear, however, that he informed Hansen, defendant's mucker foreman, that he thought the tank would require further ventilation; and he could not remember whether the tank had theretofore been ventilated (3826); but, after his final inspection of the tank about 2 p. m., Lamanna told Hansen that the tank was finished (3827). Cleaning operations had begun in the night of December 22nd, shortly after the vessel finished discharging cargo, and were continuously in progress down to the time of the explosion. The vessel remained at her discharge berth until 7:20 a. m. on December 24th, when she undocked with the assistance of a tug and proceeded to Marcus Hook, where she anchored at 8:41 a. m. (Deck Log, Exh. 22; Bird, 1348). When it appeared that defendant's cleaning work was sufficiently advanced to be completed on the way to the Baltimore shipyard, the vessel left her Marcus Hook anchorage at 1:26 p. m. on December 25th, and proceeded down the Delaware River bound for Baltimore (Deck Log, Exh. 22; Bird, 1350-1351). About 6 p. m. she encountered fog; and at 6:57 p. m., she dropped anchor in thick fog to the northwestward of Overfalls Light Vessel (Bird, 1382-1384). It was the duty of defendant's mucker foreman, Hansen, no less than that of its general foreman, Lamanna, to determine whether the tank was in condition for mucking (Lamanna, 3830; cf. Doyle, 4398; Kennedy, 4659-4660). After the No. 4 port wing tank had been washed, a windsail was rigged over the hatch, perhaps by or with the assistance of a member or members of the ship's crew; and a copus blower was put in the tank (Von Der Decken, 716-718; Doyle, 3683; Hansen, 468-469; cf. 532). In addition to the two water blowers provided by defendant for ventilating the tanks (Exh. 66), four copus blowers and several windsails, all a part of the vessel's equipment, were available to defendant on request; and at least some of them were in use prior to the explosion (Bird, 1333; Shorrock, 423; Von Der Decken, 699, 717). Neither Shorrock nor any other employee of plaintiff agreed, promised or undertook at any time to ventilate the tanks or to assume responsibility for anything else inherent in defendant's obligation to wash, clean and gas-free the vessel (Shorrock, 1138-1140, 1145-1146; Von Der Decken, 730; Bird, 1465, 1466, 1521-1522). Members of the ship's crew employed by defendant were grouped in one and sometimes two gangs, depending on how many were off watch at the time (Hansen, 459). They reported to defendant's mucker foreman, Hansen, who gave them directions, as to which tanks to muck (Hansen, 462). Between four and five o'clock p. m. on December 25th, a gang of off-duty ship's personnel, for whom Hobein was spokesman, reported for duty to Hansen, defendant's mucker foreman, who sent them to muck the No. 4 port wing tank (Hansen, 462; Hobein, 1171). *911 The gang of ship's personnel entered the No. 4 port wing tank and started mucking; shortly afterward they became dizzy; and one of their number had to be helped out of the tank (Hobein, 1171-1172; cf. Hansen, 462, 465). Hobein reported to Hansen and Lamanna that the No. 4 port wing tank was gassy; Hansen remarked that Hobein's gang was not accustomed to gas; and he directed them to take the No. 5 port wing tank (Hobein, 1172; cf. Hansen, 464). Hobein's gang entered the No. 5 port wing tank, as Hansen directed; but before doing any considerable amount of work, they found that tank also to be gassy and came out of it, Hobein telling Hansen that a windsail should be put in before his gang went in again (Hobein, 1172-1173; cf. Hansen 465). After Hobein's gang came out of No. 5 port wing tank, and complained of its condition to Hansen, the latter directed them to take the ballast tanks, which run athwartship immediately after of the No. 5 tanks (Hansen, 466-467; Exh. 13; Hobein, 1173). The explosion occurred about 8:05 p.m. on December 25, 1951, while the Bulkpetrol was anchored in fog off Overfalls Light Vessel in Delaware Bay (Deck Log, Exh. 22; Bird, 1355, 1359, 1381-1384; Exh. D). A few minutes before the explosion, Ohlsen and Hofstetter, two of defendant's employees, at the direction of Hansen, their foreman, entered the No. 4 port wing tank, taking with them one of defendant's Russell and Stoll drop lamps, which was suspended by its conductor cable and had a guide line attached to it so that the men below could move it laterally in the tank (Hansen, 476-479; Lane, 3981-3982; Hobein, 1174-1175, 1182). The two men entered the tank through a small hatch on the deck, from which a steel ladder led almost perpendicularly to the bottom of the tank, 44 feet below. There were numerous steel beams in the tank, three of them running athwart the tank less than four feet from the face of the ladder (Court's Exh. II; Joyce, 2681, corrected at 5411, and see 6843, 6847, Exh. 172). The cable to the lamp was being handled from the deck by one of defendant's employees named Israelson (Hansen, 475; Israelson, 2483-2485). Rain, sleet or snow was falling. While the foreman in charge was giving his attention to covering defendant's junction box, where the cable to the drop lamp was plugged, the explosion occurred (Hansen, 476, 482, 485-486), killing Ohlsen and Hofstetter, the two men in the tank, injuring other of defendant's employees on deck, and doing substantial damage to the vessel. According to defendant's general foreman, Lamanna, he had washed the tank with cold water early in the morning of the 25th, had inspected it at 10 a.m., at noon, and at 2 p.m., and after his last inspection had turned the tank over to his subordinate, the mucker foreman, in the belief that it would be ready for mucking in about two hours (Lamanna, 3749-3753, 3825-3838). The mucker foreman, Hansen, whose duty it was to determine when the tank was in condition for mucking (Lamanna, 3830; cf. Doyle, 4398; Kennedy, 4659-4660), testified that he had inspected the tank about 3 p.m. (468). As already pointed out, between 4 and 5 p.m., he directed a gang of off-duty crew members (hired by defendant) to work in the tank; but after working a short while the gang came out and reported the tank to be gassy (Hansen, 462-465; Hobein, 1171-1172). Thereafter, Hansen inspected the tank again, by smelling it. He had used a gas tester on other ships, but he did not use or ask for one on the Bulkpetrol (471), although the vessel's gas tester was available on request (Shorrock, 419, 421; Bird, 1371-1372; Von Der Decken, 755-756; cf. Lamanna, 3855-3856). Hansen found the tank, "Not good but not bad enough not to be mucked. It didn't smell too bad" (473). *912 Both windsails and blowers were at hand for ventilating the tank (211-214); in fact, Hansen testified that he may have removed a windsail from the tank when he inspected it about 3 p.m. (468-469, 526); but, upon his final inspection, he decided that further ventilation was unnecessary or useless until after the tank had been mucked (473). When the smoke cleared from the vicinity of the hatch, and while the injured men were receiving attention, it was discovered that the ladder was gone and that the side of the ship in the way of the tank had been blown off. The bottom of the tank was filled with the wreckage wrought by the explosion and there was no sign of the two men who had been there. The cable to the drop lamp was hanging in the hatch, but the lamp was gone, the lower end of the cable broken (Shorrock, 343; Hobein, 1178-1179; cf. Hansen, 523). The vessel obtained a pilot and proceeded back to Marcus Hook, anchoring on the way for several hours, presumably on account of fog, and arriving at Marcus Hook at 9:10 a.m. on the 26th (Deck Log, Exh. 22). Israelson, the man handling the lamp cable at the time of the explosion, had been injured, mainly by the concusion through the deck (2490-2500). He had been taken to a bunk in the officers' quarters, where he was administered aspirin and whiskey (Shorrock, 422). Upon the vessel's arrival at Marcus Hook, he was removed to a hospital in Chester (2493-2494). Defendant's managing officers, Allen and Kennedy (4631) arrived from New York after learning of the explosion, and boarded the vessel at Marcus Hook about 2 p.m. on the 26th, taking with them or being joined there by an attorney (Allen, 854-855, 896, 911; cf. Kennedy, 246). They interviewed defendant's foremen and other employees. They examined what was pointed out to them as the cable from which defendant's droplight had been suspended in the tank (Allen, 855, 896, 898, 916-923, 957-958; Kennedy, 2625-2639). Later in the day, Lane, defendant's maintenance manager, who was in charge of all of defendant's electrical equipment (and who had come by truck from defendant's headquarters in Bayside, New York, bringing two other workmen and a load of additional equipment) arrived on the vessel. Allen and Kennedy showed him the broken cable, which he examined. At their direction, he cut notches in it for identification purposes. When he left the vessel next evening, he took the cable with him. All three of those witnesses identified the cable as Exhibit 69 (Allen, 916-924, 943; Kennedy, 2637-2638; Lane, 3963-3965). In investigating the circumstances of the explosion, Allen heard that Israelson was reported to have made a statement describing the occurrence (2283-2296; Hansen 489). Accompanied by an attorney, Allen visited Israelson in the hospital about one o'clock in the morning of the 27th and took a written statement from him (Allen, 2292-2296). On the 26th and 27th, one of plaintiff's attorneys boarded the vessel to investigate the casualty; he took a statement from defendant's mucker foreman, Hansen; and on the 27th, after Israelson had been visited by Allen and defendant's attorney, he also took a statement from Israelson in the hospital (2543). Defendant resumed work on the 26th, the day after the explosion. In the afternoon of the 27th, defendant was notified that the vessel would shortly get under way for Baltimore, and that the cleaning which remained to be done would be completed by the shipyard. Accordingly, defendant was instructed to remove its men and equipment; and it did so (cf. Kennedy, 4658; Lamanna, 3743-3744). Meanwhile, on the 27th, plaintiff informed defendant by telegram that the latter would be held accountable for the damage done by the explosion (Kennedy, 243). On arriving at the Bethlehem shipyard, the vessel was moved to a floating dock in the morning of January 2nd; her *913 No. 4 tanks were pumped out; and at 6 p.m. on that day the bodies of the two missing men, Ohlsen and Hofstetter, were removed by a police boat. At 11 a.m. next day, the vessel was refloated. In the morning of January 4th, she was shifted back to a floating dock and her No. 4 tanks were again pumped out by the shipyard (Deck Log, Exh. 22). On January 5th, the remains of a drop lamp, from which a broken piece of cable protruded, were recovered by a shipyard worker in the No. 4 port wing tank and were handed over to one of plaintiff's proctors (Chester, 106, 116, 121-122). The identity and defendant's ownership of the drop lamp were thoroughly established. Allen, Kennedy and Lane engaged in numerous equivocations in an effort to avoid a frank admission of its ownership (cf. Allen, 899, 904-909, 910, 916-926, 939-943, 2304-2312, 2314, 2317-2327; Kennedy, 261, 222-224, 2623-2624, 3319-3320, 4700-4711; Lane, 3985-3990, 4054-4059). The Court also regards as unworthy of belief other testimony offered by defendant in an effort to discredit the authenticity of the lamp — the testimony of Foley (that Exhibit 3-A was the base of a 100-watt bulb, whose condition could be reproduced by throwing a bulb in the fire [4836-4837, 4861]), and the testimony of Katsigris (5589-5595) that he had found on the Bulkpetrol, over five years after the casualty, a 30-foot coil of cable, identical with Exhibit 69, the 57-foot length of cable which defendant had removed from the vessel. The testimony of these two witnesses was manifestly unreliable (Foley, 5108-5113, 5162-5164, 5167-5168, 5252-5253; Katsigris, 5699-5705; see 5738-5843, 5763-5764, 5803-5808). The lamp (Exh. 3 and its appurtenances), as well as the cable (Exh. 69), were examined at the New York Testing Laboratories in the presence of representatives of both parties. Horvitz, the technical director of the laboratory, and Stewart, its chief engineer, testified at the trial. They expressed the opinion that the explosion was caused by the breaking of the Pyrex glass bowl and the glass envelope of the bulb, thus exposing the burning filament to a gaseous and explosive atmosphere (Horvitz, 2854-2854a, 2893, 2915, 2951; Stewart 3040). Horvitz and Stewart stated that the primary reasons for their opinion were: the presence of the metallic globules in the Edison base; the boule at the end of the lead wire; and the almost complete absence of glass within the Edison base (Horvitz, 2847a, 2854-2854a, 2855, 2893, 2915, 2959; Stewart, 3372-3373, 3377). Because definite indications of arcing between the mutual ends of the cable conductor wires on Exhibit 3 and those on Exhibit 69 (where the wires were parted) were absent, Horvitz and Stewart expressed the view that the circuit had been broken before the tensile break in the cable occurred, but after the explosion had been set off and after the flow of current had been stopped by the destruction of the filament (Horvitz, 2800-2801, 2803, 2902-2903, 2937a; Stewart, 3380). The Horvitz-Stewart testimony impressed the Court as clear, reliable and convincing. The Court finds, as a fact, that the explosion was caused by the factors and under the circumstances encompassed within the Horvitz-Stewart theory of the cause of the explosion. The Horvitz-Stewart theory takes on the added dimension of reality when considered in the full context of the detailed evidence with respect to the internal structure of the tank and the conduct of three of defendant's employees — Israelson, Ohlsen and Hofstetter — a few minutes before the explosion. In behalf of plaintiff, a naval architect identified the plans of the vessel, including plans of the No. 4 port wing tank (Joyce, 5411). At the Court's suggestion, a scale model of the tank was constructed and put in evidence as Court's Exhibit II (4416, 4419). This model of the tank is most illuminating. When that model *914 is viewed in conjunction with the testimony contained in the Israelson deposition (2479-2501, 2508-2564) the concatenation of incidents leading to the explosion is discernible. The No. 4 port wing tank contained twelve wide, lateral, "H" steel beams (stiffeners), shown in yellow on Court's Exhibit II; eight of these beams are diagonal; four of them are horizontal. An almost vertical, forty-foot steel ladder, runs from the hatch of the tank to the bottom of the tank. The ladder is shown in green on the model. The ladder extends from the inboard side of the tank to a point directly underneath the hatch opening to the tank. The ladder is held firm by four sets of steel brackets. The ladder is located between two sets of the lateral steel beams, so that the space between the planes of the two sets of lateral stiffeners is divided almost in half by the ladder. In addition to the foregoing steel structures, there are four horizontal, longitudinal, right-angled steel beams. These are shown in coral color on the model. There are longitudinal steel beams running fore and aft on the bottom and outboard side of the tank, shown in black. One of these longitudinal beams shown in coral, runs fore and aft along the centre line of the bottom of the tank, rising to a height of about four feet from the bottom of the tank. The major frame of the tank consists of eight steel members, shown in white. These eight members extend into the tank from the sides, top and bottom of the tank. Thus, while the tank may be conceived as cargo space for oil, it is not "empty" space, even when the oil cargo has been discharged. The variously located steel structures protruding into and traversing the inside of the tank present a large number of steel surfaces and edges. Even if the effect of the oscillation of the anchored vessel (Sheridan, 6441, 6447, 6448, 6451; defendant's attorney, 6444) were to be discounted, a person of ordinary prudence would recognize that when a droplight (consisting of a long, flexible cable and an attached electric bulb and an outside glass bowl) is lowered from the hatch opening into the tank, there is great likelihood that the droplight will come in contact with one or more of the steel surfaces or edges. This probability of contact between the freely suspended droplight and one of the steel structures is increased by the very use to which the droplight is put. There are no electrical fixtures inside the tank. The muckers who work inside the tank are compelled to use either hand flashlights or a 200-watt droplight. Attached to the droplight is a guide rope or lanyard, about 18 feet long (Hansen, 476-479). This guide rope is used by the muckers to move the suspended droplight laterally to various positions within the tank, which is between 40 and 50 feet long and almost as wide. In moving the suspended droplight laterally, the muckers must pull the droplight by means of the guide rope. In order to avoid smashing or fracturing the droplight, it must be carefully raised or lowered and moved laterally over and around or under the criss-crossing and protruding steel structures. If one of the muckers holding the lanyard should slip on the oily surfaces or be overcome by toxic gas and thus abruptly pull or let go of the guide rope, the droplight would very likely smash against one of the steel structures. So, too, if the man raising or lowering the droplight from the hatch opening should raise or lower it at a time when the droplight is not in a position free and clear of the steel structures, there is danger that the droplight would be smashed or fractured. Ordinary prudence dictated that the Pyrex glass bowl should be periodically inspected to see that it is not scratched, split, abraded or otherwise weakened. Defendant did not make such inspections. In addition, ordinary prudence dictated that there should be a non-sparking metal cage or guard over the glass bowl of the droplight. Defendant failed to provide *915 such guards. The expected happened: an explosion. It is undisputed that tank-cleaning and gas-freeing is a known dangerous operation at all times (1395, 1345, 1507, 1508); and defendant has admitted that fact unequivocally (defendant's main post-trial brief, 104, 122, 133). But, if appropriately proper care is taken there will be no explosion. Israelson's deposition was taken at Ellis Island by plaintiff on November 19, 1952, while Israelson was awaiting deportation (2479). Israelson had theretofore commenced an action against plaintiff to recover damages for his personal injuries. Israelson's deposition was read into the trial record without objection (2479-2501, 2508-2564, 2568). Israelson was working as a mucker for defendant on December 25, 1951 (2481, 2554). His foreman was Hansen (2482, 2501). In his deposition, Israelson testified that, at the time he was hurt, he was standing between the hatch and one of the valve wheels inboard of it (2481-2482); he was looking down the hatch, facing outboard, looking a little forward and out (2540). His account of his prior activities and observation included the following sequence of events: 1. At Hansen's direction, he picked up the lighted drop lamp, took it over to the hatch, and lowered it a few feet (2483-2485). Hansen told him what lamp to take. 2. Hofstetter then went down to the bottom of the tank (2485). 3. Israelson "lowered the lamp to him [Hofstetter], about half-way down; about 20 feet down in the tank" (2485-2486, 2518). 4. Hofstetter "went forward on the beam" about "four feet from the bottom" of the tank (2486). 5. Ohlsen descended the ladder part way, stopping to help Hofstetter "clear the lamp past one of those beams, crossed, you know, in the middle of the tank. He was helping him clear it over" (2486-2487, 2537-2538). Ohlsen and Hofstetter had flashlights, but Israelson did not remember whether they turned them on (2518). 6. After guiding the lamp around the beam (2518), Ohlsen continued down the ladder and onto the beam "about four feet from the bottom" of the tank; "he went a little forward"; then he got down on the steam coils (2487, 2520-2521, 2538), and walked aft toward the ladder (2521, 2548-2549), "holding his hand on the beam down in the tank" (2521). 7. Meanwhile, Israelson lowered the lamp a little farther, until it was about "ten to eight feet from the beam down there" (2520, 2518-2519, 2521-2522), the beam that Ohlsen had his hand on (2561). Israelson secured the conductor cable to the dog on the side of the hatch coaming (2488, 2520, 2538-2539, 2542). 8. Ohlsen was "working a little backwards to the ladder on the steam coils," which were "slippery," and "he was walking with his hand on the beam" to steady himself (2488, 2548-2549). 9. Israelson asked Ohlsen whether the light was all right, whether he wanted it lowered or raised. Ohlsen told Israelson to raise it a little (2521, 2522, 2534). Israelson thought he was supposed to open up the dog on the hatch coaming in order to raise the lamp (2522). 10. Ohlsen "was on the coils. He was pretty close to the ladder" (2521). Ohlsen "was a few feet forward of the light, a little forward, but he was, I don't know, ten or less, six or seven feet or less from the lamp" (2546). 11. Israelson did not remember (2501) whether there was a guide rope on the lamp, but if it was there, it would have hung down (2536). 12. As the lamp was hanging, the nearest object was a heavy big steel beam going up and down in the tank (2533). 13. Israelson could not remember whether Ohlsen had hold of the light cord *916 (2546), but the lamp was out of Ohlsen's reach, about six or seven feet over his head (2546). "About four, three or four feet over his head" and Ohlsen tried to reach for it (2562, 2558, 2558a). 14. Before (2534) he could open the dog preparatory to raising the lamp (2523) Israelson saw Ohlsen "move his hand like — I don't know if he grabbed it or what. I am not sure if he put his arm out." "It looked to me like he slipped, yes." "I saw the red blast coming up. It went so quick. I can't say exactly what it was, a red blast coming up, you know" (2489, 2545, 2547, 2563, 2522). "I say it looked to me like he grabbed up. If he fell or grabbed for something" (2559). Israelson did not recall whether he had his hand on the cable at the time Ohlsen slipped and grabbed for the lamp (2545; 2588). He said he did not raise the cable before the explosion (2547). However, Runge, the third officer of the vessel, who was on the bridge when the explosion occurred, testified that he saw one of defendant's men at the No. 4 port wing tank with his hand on the cable, pulling the cable out of the tank (3408, 3411, 3420, 3442-3443); and "at the same time he pulled on the cable the explosion happened" (3408, 3420). The Court accepts this testimony by Runge as a truthful account of what occurred. The fact that plaintiff introduced Israelson's deposition does not mean that plaintiff is bound by everything that is contained in that deposition. The Court may accept or reject any or all parts of the deposition, depending upon what the Court believes. Johnson v. Baltimore & Ohio R. Co., 3 Cir., 1953, 208 F.2d 633. The Court does not believe Israelson's testimony that he did not raise the light (2534); nor does the Court believe Israelson's testimony (2501) that he did not remember whether there was a guide rope on the lamp. The testimony of Hansen, Lane and Hobein established that a guide line about 18 or 20 feet long was attached to the droplight (476, 479, 1174-1175, 1182, 3981, 3982, 4145). The Court rejects Israelson's testimony that the droplight was motionless (2533-2535). Five minutes had elapsed between the time Israelson had lowered the light and the explosion (2501). If the basic facts in the Israelson deposition are combined with the structural facts of Court's Exhibit II (the tank model) and Runge's testimony, the incidents immediately preceding the explosion form the following narrative: After Israelson had lowered the lamp a little way, Hofstetter went down the ladder. While Israelson continued to lower the lamp, Ohlsen followed Hofstetter down the ladder but paused opposite the horizontal stiffener, about half way down the tank, to pass the drop lamp over it. The stiffener is close to the ladder, well within the reach of a man holding to the ladder with one hand. Hofstetter stepped from the ladder to the longitudinal beam about four feet above the bottom of the tank and about three feet from the ladder. While Hofstetter was in that position, Ohlsen assisted him in clearing the lamp around the stiffener. That operation took place considerably above Hofstetter's reach and, therefore, Hofstetter participated in it by holding the guide rope, which was eighteen or twenty feet long. After the lamp had been cleared, Ohlsen went on down the ladder. Israelson paid out cable until the lamp was a few feet over the longitudinal beam on which Hofstetter was standing at the bottom of the tank. Israelson secured the conductor cable with a clove hitch around the dog to the hatch cover. Ohlsen proceeded forward a little way on the longitudinal beam at the bottom of the tank. Hofstetter, by that time had gone to the forward part of the tank. Then Ohlsen stepped down onto the slippery steam coils. He walked back toward the ladder (2549). He steadied himself with one hand on the beam. When he lacked a few feet of being directly under the lamp, he asked Israelson to raise it. At that time, the lamp *917 was about 3 or 4 feet over Ohlsen's head. It was in the vicinity of the lower diagonal stiffener. The vessel was down by the stern some 20 feet (Deck Log, Exh. 22). The lamp had to be steadied by means of the guide rope while it was being raised by Israelson. Ohlsen grasped the guide rope to save the lamp as Israelson raised it. At the same moment, Ohlsen was dizzy and, becoming asphyxiated by gas which he had been breathing for several minutes, fell. The lamp hit a nearby steel structure. The Pyrex glass bowl cracked or smashed; the electric bulb inside the bowl broke; and the incandescent filament was exposed to the explosive gases. There was an explosion. The evidence established that the Pyrex glass bowl on defendant's droplight was critically weakened by surface abrasions and subject to easy fracture by the force of the impact of a relatively small swing of the suspended droplight against one of the nearby steel structures in the tank. The evidence also established that defendant's managers were culpably ignorant of and recklessly indifferent to that condition. Plaintiff's expert, C. J. Phillips, a highly qualified authority on Pyrex glass, testified that he had conducted, at plaintiff's request, a series of experiments to determine how and under what condition bowls of the type in question, mounted in a fixture similar to Exhibit 3, would break under impact (2175-2176). These experiments and the results obtained were testified to in detail (2180-2232). Of demonstrated significance to the case at bar is the fact that, where the bowls had been abraded and scratched, they were greatly weakened; that, if the fixture were allowed to swing freely at the end of a 20-foot rope, the bowl would shatter on impact against the edge of steel blade an inch thick only 3 or 4 feet away (2189); that, if the fixture were swung with greater force than is provided by gravity alone, the bowl would break on impact at a proportionately shorter distance (2200-2202). A particularly salient finding reported by Phillips was that, when a sound bowl is subjected to impact, a fracture may occur at the lip or flange, where the bowl is set between the globe ring and the retaining ring. Such a fracture may remain undetected unless the retaining ring is removed and the globe taken out. After suffering such a fracture, the strength of the bowl is drastically reduced — a slight impact may be sufficient to destroy it (2209-2232; cf. Exh. 88). Various publications by the manufacturer of the bowl have indicated the need for protecting the surface of Pyrex glass from abrasion; the information is common knowledge among industrial users of such glass (2282). A metal guard serves to protect the bowl from abrasion. The bowls should be inspected periodically (2280-2282). The above basic information about Pyrex glass bowls and the correlative safeguards were either negligently, unknowingly or recklessly disregarded by defendant. On this point the evidence is overwhelmingly against defendant. Allen and Kennedy, defendant's managers; and Lane, in charge of defendant's electrical equipment (4627-4628, 4631) were of the asserted belief that the incandescent bulbs were adequately protected by the Pyrex bowls alone (Allen 947-950; Kennedy, 258-259, 4627, 4628, 4631; Lane, 4158, 4159). Lane, defendant's manager in charge of inspection and maintenance of defendant's electrical equipment, admitted that, during the five years he worked for defendant, he had never replaced a single Pyrex glass bowl on defendant's Russell and Stoll droplights (4137). Lane had seen all sorts of scratches on the Pyrex glass bowls on defendant's droplights (4127, 4138-4139); but, as he had no knowledge whether the scratches affected the strength of the bowl (4138), he never rejected a Pyrex glass bowl for use, even though it might be heavily scratched (4139). Lane attached no importance to the scratches he *918 had observed on the bowls (4034-4035, 4127), nor to the fact that the metal portion of the droplights had been dented in service (4127-4128). According to Lane, about fifteen lamps of the type in question (out of some twenty of that type owned by defendant), were actually serviceable in December 1951 (3929). So far as he recalled, no bowls on lamps of that type had ever broken or been removed from their rings for inspection (4035-4036). Lamps of another manufacturer, having slightly shorter bowls, were subjected to about the same usage as those of the type in question; and the bowls on those lamps had broken frequently (4024, 4121, 4137). Not only were critically weakened Pyrex glass bowls negligently used by defendant, but defendant also negligently failed to use non-sparking metal guards or cages over the glass bowls. Lane's testimony with respect to the subject of metal guards reveals the following facts. Defendant never used metal guards on any of its Russell & Stoll lights (4122, 4126). When guards were furnished by the manufacturer of the lights, defendant would remove the guards (3928-3929, 4122, 4129). Lane himself equivocated as to the protective value of metal guards. On the one hand, he testified that he "understood they [non-sparking metal guards] would be a protection" and that one of the safety features would be a guard (4123, 4125). In line with this testimony, he said, "Yes, I thought they really should have guards" (4126); and "Sometime in 1950" he told Allen that he thought that defendant ought to have guards on these droplights but nothing was done about it (4125, 4126); and that defendant never tried to make its own non-sparking guards (4133). On the other hand, Lane testified that "the glass seemed much heavier than the guard" and "we thought that the glass itself was so strong that the guards actually didn't serve too much of a purpose" (4158, 4159). What the Court regards as the true reasons for defendant's deliberate and negligent failure to use metal guards over the glass bowls finally emerged from Lane's testimony when the Court questioned Lane: first, a number of the metal guards would crack or break in use and defendant wanted to save the expense of replacing the guards (4158, 4159); and, secondly, defendant did not want to go through the bother of screwing guards on the lamp fixture when the screw "threads" on the fixture had "become damaged" and "there would be some difficulty in putting the guards on" (4159). With specific reference to the droplight used in the tank just before the explosion, Israelson testified that there was "no metal protector frame over it" (2544). That metal guards may not have been used by some of the other tank-cleaning companies is relevant and admissible as tending to prove a customary practice of the industry, but defendant's standard of care in a negligence action "is not limited to complying with usual practices in the industry or trade." Troupe v. Chicago, etc. Transit Company, 2 Cir., 1956, 234 F.2d 253, 260. In this case, it was clearly negligent for defendant to have used the droplight in the tank without a metal guard (see Shorrock, 369-370). Such negligence, in violation of defendant's duty of care toward plaintiff, was an ingredient of the proximate cause of the explosion. The Court finds that defendant was negligent in failing to exercise reasonable care in the inspection and maintenance of its electrical equipment, including its droplight represented by Exhibit 3, in that, having been subjected to hard usage for a period of more than two years, the bowls on all of defendant's lamps of that type had become scratched, abraded and probably fractured, so that their resistance to ordinary impacts was greatly impaired; and in that no metal guards were provided by defendant to *919 protect its droplights from abrasion and from breaking on expectable impacts inside the tanks (Lane, 3928-3929, 4034-4035, 4138-4139, 4125-4126, 4035-4036, 4017-4019; Allen, 947-950, 996-997, 894-894a, 895-896, 2335-2336; Phillips, 2187-2188, 2205-2206, 2208-2218, Exh. 88; Kennedy, 258-259). Defendant's negligence in its faulty methods and inadequate equipment is further illustrated by the sort of lanyards which were used on this job. As already noted, a lanyard was used as a guide rope on the droplight to move it laterally inside the tank (4145, 4174-4180, 4190, 4195). A droplight weighs about twelve pounds. It had to be pulled over and around the steel beams inside the tank. But in its foolhardy economy, defendant bought second-hand rope, which was 75% cheaper than new rope; and this rope was never tested by defendant to see how strong it was (4146, 4147). Even more condemnatory is the evidence on the subject of gas meters. At one time, about 1948, defendant had a gas meter, but when it broke, defendant did not replace it (Lane, 4154; Kennedy, 4677). Contrary to proper methods (Bird, 1517), defendant did not test the tank with a gas meter to ascertain whether the tank had gas in it or whether it was explosive or otherwise dangerous (Walling, 4296). Although there was a gas meter on the vessel (Runge, 3441), defendant did not take the trouble to borrow and use it. Kennedy, one of defendant's chief representatives, admitted (2601) that defendant's method of determining whether there is a dangerous concentration of gas in a tank is "by the smell of the tank." He was aware of the fact (2602) that the two primary hazards with the concentration of gases in a tank are the toxic condition as it affects the men working in the tank and the explosive quality of the gas vapors. Kennedy admitted that defendant's test of explosibility was whether a man could work in a tank from one-half to one hour without danger to himself. (2602-2603). He further testified that "a concentration of 50 percent of a lower explosive range of a mixture of gas, vapor and air, will be sufficient to make a man unsteady on his feet and dizzy within a comparatively short time, within a range of five or ten minutes" (2603). It will be recalled that the explosion took place within almost five minutes after Ohlsen and Hofstetter went into the tank, and that Ohlsen was unsteady on his feet and appeared to be falling. Defendant negligently failed to use a gas meter to test conditions in No. 4 port wing tank for toxicity and explosibility before sending Ohlsen and Hofstetter into the tank and lowering the droplight in the tank. We must, of course, consider the record in the light of the general state of knowledge which "reasonable minds" would possess. On this record, the conclusion is inescapable that the tank contained gas which was toxic and explosive. Cf. Gulf Oil Corporation v. Wright, 5 Cir., 1956, 236 F.2d 46, 49; United States v. Marshall, 9 Cir., 1956, 230 F.2d 183, 190. In view of the common knowledge and general scientific and technical information of gases in tanks which contain or contained crude oil, there is no doubt about the fact that defendant knew of this hazard; and that defendant violated the standard of care which it was required to observe. Defendant was conscious of the danger of exposing a burning filament in the tank. All of defendant's asserted vigilance to provide explosion-proof, spark-proof equipment — going to the length of eliminating steel guards from its lamps — would have no meaning whatsoever outside the context of defendant's complete awareness of the expectable consequences of exposing a flame, or even a single spark, to the atmosphere of a tank that had not recently been tested and properly determined to be gas-free. Notwithstanding its awareness of the foreseeable risks, defendant negligently suspended its unguarded drop lamp, with a lanyard or guide line attached, so that — through the actions of *920 the man (Israelson) handling the cable or the actions of a man (Ohlsen or Hofstetter) in the tank — the lamp might expectably strike against a steel member in the tank with sufficient force to fracture the bowl and bulb and thereby expose the burning filament to the explosive atmosphere of the tank. Moreover, the Court finds that there is no evidence that either Israelson or Ohlsen qualified by experience or instruction in the handling of droplights; and neither Hansen nor Lamanna, their foremen, properly supervised the handling of the droplight in the tank (Hansen, 476, 485-486). The finding definitively established by the credible evidence is that the explosion was triggered by the breaking of the unguarded Pyrex bowl on Exhibit 3 and the exposure of the filament of the incandescent bulb, the base of which is Exhibit 3A (Horvitz, 2854-2854a, 2893, 2915, 2937a, 2951; Stewart, 3040, 3332-3335). At this point, it seems appropriate for the Court to articulate some of the premises underlying its approach to the evidence. In analyzing this record, the Court has sorted out the facts from the guesses. See Matter of Knetzer, 7 Cir., 1956, 229 F.2d 232, 237. And in determining what inferences from the known data "are common sense under the circumstances," the Court has borne in mind Chief Judge Clark's observation: "Judges should not be more naive than others, including jurors." United States v. Masiello, 2 Cir., 1956, 235 F.2d 279, 284, 285. As fact-finder, the Court is thus required to select from the entire record those logical inferences which accord with common sense and experience and which fall within the normal range of probabilities in the context of the totality of the evidence. The standard of plaintiff's burden of proof in this non-criminal case — "`by a preponderance' — means that the inferences from the testimony are such as to persuade that the occurrence of an essential fact was more likely or probable than its non-occurrence." Judge Frank, concurring, in United States v. Masiello, 2 Cir., 1956, 235 F.2d 279, 286. (Emphasis in original.) This is not the case where plaintiff has "erected a rather shaky edifice of actual negligence upon the shifting sands of carelessness inferred from the naked accident," although the substantial evidence herein does require "a broad bridge of inference to permit the conclusion of actual negligence." Cf. Lee v. Pennsylvania R. Co., 2 Cir., 1951, 192 F.2d 226, 228. The circumstantial evidence adduced by plaintiff herein permits rational and logical inferences in favor of plaintiff's factual contentions. The Court has drawn such inferences. Such inferences are not speculative or conjectural. In this Circuit, the courts have "unequivocally rejected the view that circumstantial evidence is probatively inferior to direct evidence and that its sufficiency is, therefore, to be determined by a different, more stringent test than is applied to direct proof." Judge Medina, in United States v. Brown, 2 Cir., 1956, 236 F.2d 403, 405. See discussion in F. A. R. Liquidating Corporation v. Brownell, D.C.Del.1956, 140 F. Supp. 535, 539-540. In an explosion case, where a plaintiff's evidence shows two or more equally possible causes of an explosion, for one of which defendant would be liable, but for the others of which defendant would not be liable, plaintiff is deemed to have failed to carry its burden of showing that the explosion occurred from a cause for which defendant would be liable. Soso v. Atlas Powder Company, 8 Cir., 1956, 238 F.2d 388. In that situation, the evidence is said to be equivocal because it supports two or more equally consistent possibilities or hypotheses of causation (all of which are "scientifically possible"), thereby leaving the fact-finder (jury or judge) to choose one of the possibilities "by guess and conjecture." Soso case, supra, at pages *921 389, 393-394; cf. United Geophysical Company v. Vela, 5 Cir., 1956, 231 F.2d 816, 822. As was said by Crouch, J. in Tortora v. State of New York, 1935, 269 N.Y. 167, 170, 199 N.E. 44, 45: "In all such cases the balance of probabilities between causes which entail liability and others which do not is equal enough so that an inference of fact which entails liability is the result of mere speculation." So, too, a plaintiff does not prove a prima facie case where the accident with equal reasonableness might have been accounted for on a theory that did not entail negligence on defendant's part. Cardinale v. Union Oil Company, D.C.N.D.Cal.1956, 136 F. Supp. 487; The Ingrid, 2 Cir., 1914, 216 F. 72, L.R.A. 1916B, 716; Scharff v. Jackson, 1916, 216 N.Y. 598, 111 N.E. 242, dist. in Ingersoll v. Liberty Bank of Buffalo, 1938, 278 N.Y. 1, 8, 14 N.E.2d 828; Midland Steamship Line v. The Arkansas, 6 Cir., 1956, 232 F.2d 81. The same result is reached where equally "expert" testimony is given by plaintiff's and defendant's expert witnesses, one sponsoring a "theory," which, if correct, would support defendant's negligence and consequent liability, and the opposing expert sponsoring a "theory" which, if correct, would disprove defendant's negligence as a cause. Where each of such theories is equally plausible and where "the trial judge could not find whether either theory as to the cause of the fire was the correct one, or what did in fact cause it," the Court will not rely on "speculation" but will find for defendant. Hoskyn & Co. v. Silver Line, 2 Cir., 1944, 143 F.2d 462, 464. The evidence in the present case is not in a state of equivocation or equipoise. The Court is not here confronted with with two or more possibilities or hypotheses of causation equally consistent with the total evidence or with conflicting expert testimony given by equally qualified experts. The weight of the credible evidence establishes that defendant's negligence was the actual cause of the explosion. Recognizing that there "is no litmus test for finding what is true or false" (Goodrich, C. J., in Johnson v. Baltimore & O. R. Co., 3 Cir., 1953, 208 F.2d 633, 636), the Court here finds that the rational inferences establishing the actual cause of the explosion, as claimed by plaintiff, outweigh the conjectural possibilities of there having been some other cause out of a thousand possibilities. "The laws of logic as applied to evidence recognize the distinction between a possibility and a probability." F. A. R. Liquidating Corporation v. Brownell, supra, 140 F.Supp. at page 540. That defendant suggests that there may be many "scientific possibilities" or "theories" as to how the explosion was caused does not insulate defendant against liability where, as here, plaintiff has sustained its burden of proving by a preponderance of the credible evidence that the cause assigned by it did actually operate to bring about the explosion. To the extent that the evidence relied on by defendant suggests multifarious "possibilities" of causation, the suggestions give rise to inferences whose probative weight is definitely overbalanced by the other and countervailing inferences clearly establishing defendant's negligence in connection with the droplight, Exhibit 3, and the related causative circumstances. "Fact finding does not require mathematical certainty" and fact finders "are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn." Schulz v. Pennsylvania Railroad Company, 1956, 350 U.S. 523, 526, 76 S. Ct. 608, 610, 100 L. Ed. 668. "Inference is never certainty, but it may be plain enough to justify a finding of fact." Crouch, J., in Tortora v. *922 State of New York, 1935, 269 N.Y. 167, 170, 199 N.E. 44, 45. In accident cases, where no one saw the accident, the evidence is, nevertheless, submitted to the jury for it to determine whether the defendant was negligent and whether defendant's negligence caused the accident when well-grounded inferences are possible from the evidence, although the inferences to be drawn from the circumstances cannot be said to be certain or incontrovertible. Tortora v. State of New York, supra; Sackheim v. Pigueron, 1915, 215 N.Y. 62, 67, 109 N.E. 109. In such cases, it is held that plaintiff's burden to prove defendant's negligence and proximate cause does not mean that plaintiff's evidence must exclude or eliminate every other possible cause. Ingersoll v. Liberty Bank of Buffalo, 1938, 278 N.Y. 1, 14 N.E.2d 828. In the case at bar, plaintiff has affirmatively shown facts and circumstances which fairly and reasonably lead to the conclusion that defendant was negligent and that defendant's negligence was the proximate cause of the explosion. In so finding, this Court is acting upon "the definite and firm conviction" that such are the facts and not merely because "there is evidence to support" such finding. Cf. United States v. U. S. Gypsum Co., 1948, 333 U.S. 869, 895, 68 S. Ct. 788, 92 L. Ed. 1147. The Court now turns to Exhibit 3, the droplight, and Exhibit 69, the long length of cable. The Court finds that Exhibit 3 and its appurtenances are the remains of defendant's droplight that was used by defendant in the tank at the time of the explosion; and that the portion of cable protruding from Exhibit 3 was parted from Exhibit 69 during the explosion (Allen, 903, 941; Stewart, 3015, 3017; Hobein, 1186-1187; Lane, 4050-4051). Because defendant has rather bluntly suggested that Exhibit 3 was "planted" after the explosion in the debris in No. 4 port wing tank, it is helpful to consider the testimony of Joseph Chester, an acetylene burner working for Bethlehem Steel Co. According to Chester, on January 5, 1952, he was removing damaged scrap from the Bulkpetrol while it was at the Baltimore Shipyard of Bethlehem Steel Co. When he started to work in the No. 4 tank, one of plaintiff's attorneys asked him to look out for light fixtures (107). After working for an hour (120), he found part of a light fixture (116) in that tank (117); and he handed it to one of plaintiff's attorneys (108). He identified pictures of the fixture (108a; Exhibits 2A-2H), and indicated the approximate place where he had found the fixture by a circular mark on Exhibit 1 (125). This location was about 20 feet away from a point directly below the hatch opening to the tank (119). Chester further testified that, at the time he found the part of the fixture, he noticed "a small part of a wire under the bulb socket was there" (109). He identified the base of an electric light bulb with a piece of wire sticking out, as part of the fixture when he found it, at which time the base of the light bulb was screwed in the socket of the fixture (109-110; Exhibits 3 and 3A). Clips and two screws were also attached to the fixture when he found it (111; Exhibit 3B). A metal cap was in place on the fixture (113-114; Exhibit 3C). He identified the small remnant of cable on Exhibit 3 (120-121). At the time Chester recovered the lighting fixture it was not lying flat (122) and "there was a lot of dirt there when I picked it up, a lot of muck and dirt on it" (114). The fixture had been lying in a muddy, rust-like muck, forming a puddle of water at the bottom of the tank (122-123, 127, 133, 135). The latter statement explains why the droplight had been overlooked by others who had worked in the No. 4 tank before Chester. When covered with water, dirt and muck, the fixture was hardly distinguishable from the surrounding debris and scrap around the light in the tank (129). *923 Chester impressed the Court as a completely trustworthy and reliable witness. The Court accepts his testimony as to the circumstances under which Exhibit 3, the droplight, was found. There is not the slightest evidence that defendant was "framed" by someone who "planted" Exhibit 3 in the tank after the explosion. Exhibit 3 was identified by the manufacturer's (Russell & Stoll) representative (in charge of designing its electrical equipment) as the remains of a lamp assembled from part of two types of lamps put out by the manufacturer. The upper part (called "the housing") bearing the No. 1499, was described as a part designed for a 150-watt portable lamp (shown on page 19 of the manufacturer's catalogue Exhibit 68, No. 4585). The catalogue describes the lamp as a standard hook type portable hand lamp (cf. 2043). The lower part of Exhibit 3 ("the globe ring") was designed for a 200-watt fixture lamp (Tanner, 1805-1812; 1819-1820). On Exhibit 3, bail handles (now broken off) had been attached after the lamp left the hands of the manufacturer (2043-2047). Lane admitted that, in some instances, he had drilled holes in the lamp housings to affix bail handles, such as appeared to have been broken off Exhibit 3 (4019-4019a). The nipple on Exhibit 2 was made of ferrous metal and came from a lamp put out by another manufacturer. The screws by which the clamps secured the cable were also of ferrous metal, whereas Russell & Stoll used only non-ferrous metal in the assembly of its lamps (1815-1817). The lamp holder base of Exhibit 3 indicated that four holes had been drilled in it, in addition to the four originally there, three, of the latter being plugged by broken screws (1838). Portable lamps similar to No. 4585, also carrying a 150-watt bulb, are known as the bail handle type, No. 4587 (Exh. 68, p. 19; 1814). The globe rings are interchangeable among lamps of all three types; that is, the globe ring designed for a 200-watt fixture lamp may be substituted for the globe ring on either the hook type or bail handle type of portable lamp (1818-1820; Lane, XXXX-XXXX). Russell & Stoll had sold to defendant, as a special order, in April 1948 and in May 1949, assemblies described "Spec. 4595, Explosion proof hand portable complete for 200-watt lamps" and "Spec. 4587, Hand portables for 200-watt lamp" (Exh. 65-P and Exh. 65-Z), consisting of the housing of its 150-watt portable lamps and the globe rings of a 200-watt fixture lamp (1920-1927; 1946). Kennedy admitted that Israelson had lowered one of defendant's droplights in No. 4 port wing tank (2633). There is not the slightest doubt that Exhibit 3 represents the remains of the defendant's droplight which was used in No. 4 port wing tank at the time of the explosion. If any additional proof were required on that subject, it is furnished by the testimony concerning Exhibit 69, the length of cable. Kennedy testified that, on December 26, 1951 (the day after the explosion) he, Allen and Lane went over to No. 4 port wing tank; and he and Allen pulled a light cable from the tank. He untied the other end of the cable which had been fastened to the dog of the hatch (2625). Lane notched the cable to be sure they could subsequently identify it as the cable they had pulled out of the tank (2637; Exhibit 69). When questioned by the Court, Kennedy admitted that Exhibit 69 was part of his equipment (2641). Kennedy also admitted that, if the piece of cable which is now part of Exhibit 3 is in fact a piece of the original or part of Exhibit 69, it would be proof that Exhibit 3, the droplight, had been in tank No. 4 (2641). Kennedy was unable to differentiate between the cable wire composing Exhibit 69 and the cable wire attached to Exhibit 3 (2643). It is undisputed that Exhibit 69, the long length of cable, was notched (for identification purposes) and taken from the Bulkpetrol by defendant the day after the explosion. It is also undisputed that the distal end of this long length *924 of cable matches perfectly the mutual end of the remnant of cable still attached to the recovered droplight (Exh. 3). It has been established almost to a certainty that the droplight (Exh. 3) had been attached to the cable (Exh. 69). Defendant, however, makes much of the fact that, while its representatives found the cable hanging in the tank on December 26th (the day after the explosion), plaintiff's witness (Shorrock) testified (343) that he had, on the day of the explosion, pulled out of the tank a length of cable and threw it on the deck. Defendant seeks to cast doubt upon the legitimacy of the cable which it found in the tank on December 26th. The Court, however, finds and concludes that the cable length which defendant saw and took possession of on December 26th, was one and the same cable which Shorrock saw hanging in the tank on December 25th. Shorrock admitted that his recollection of some of the events on December 25, 1951 was "hazy" (378, 386). He did testify that, shortly after the explosion: "I just wandered around aimlessly there, and I went back to the hatch of No. 4 tank and I pulled out the wire cable, and I just pulled it out, and there was nothing on the end of it, it was blown off at the end, and I think I just threw it or lay it on the deck, * * *" (343). Shorrock correctly remembered that he pulled out the cable, looked at it, and saw nothing at the end of it, that is, the droplight (as we now know it to be the fact) had been blown off the end of the cable. However, Shorrock's recollection was faulty when he said, "I think I just threw it or lay it on the deck." The cable which Shorrock saw hanging in No. 4 port wing tank, which had "nothing on the end of it," was the identical cable (Exh. 69) with "nothing on the end of it" which defendant's representatives saw hanging in the same tank in the same condition the next day. There is no basis for defendant's suggestion that Exhibit 69 was "planted" in the tank by someone who was trying to "frame" defendant. The Court has already expressed its findings and conclusions that the relationship between plaintiff and defendant was, at all material times, that of shipowner and independent contractor; that, at no time, did defendant become an agent, employee or joint venturer of plaintiff; nor was there, under any legal theory, joint responsibility for the control, supervision or execution of the tank-cleaning and gas-freeing project; that, whatever statements were made by plaintiff to defendant concerning the use of cold, as distinguished from hot, water were in the nature of suggestions and not orders; that defendant's use of plaintiff's crewmen and officers did not supersede, convert or modify the original relationship; that defendant's use of some of plaintiff's equipment and the availability to defendant of other of plaintiff's equipment did not change the original relationship between the parties; and that all of the tank-cleaning and gas-freeing was "done under the supervision, direction and control of Pyrate" (414). Notwithstanding the clearly preponderant evidence which establishes the foregoing facts and conclusions, defendant vigorously argues that it was not an independent contractor. It is significant that, in its original answer, defendant expressly admitted that "it undertook to clean and gasfree the S. S. Bulkpetrol." A reference to the pleadings throws light on the evolution of defendant's defenses. On May 27, 1952 plaintiff filed a short complaint alleging inter alia: "2. In the month of December 1951 plaintiff engaged defendant to clean and gasfree plaintiff's steamship Bulkpetrol. Defendant undertook the service and in the course of its performance, on December 25, 1951, negligently caused an explosion in the No. 4 port wing tank of *925 the vessel, as a result of which plaintiff's vessel was injured, to the plaintiff's damage in the sum of about $500,000." Thereafter, on June 18, 1952, when defendant seemingly was in default, plaintiff urged defendant to file an answer so that the action could be placed on the calendar, suggesting that if defendant wished to file a general denial it might do so and file an amended answer at any time before October 1, 1952 (5417). On June 20, 1952, defendant filed an answer, the second paragraph of which was as follows: "2. Defendant admits that in December, 1951, it undertook to clean and gasfree the S. S. Bulkpetrol; that in the course of such work and on December 25, 1951, an explosion occurred in No. 4 port wing tank of the vessel, causing damage to the vessel. Defendant denies the other allegations contained in paragraph `2' of the complaint." (Emphasis supplied.) The first shift is indicated in defendant's amended answer filed on September 29, 1952, in which it is alleged: "Second: Admits that in the month of December, 1951, defendant was engaged to clean cargo tanks on the S. S. Bulkpetrol but under the supervision, direction and control, and with the assistance of plaintiff, its agents, servants or employees; that on December 25, 1951, in the course of such work, an explosion occurred in No. 4 port wing tank of the vessel, causing damage to the vessel; and except as expressly admitted, denies the allegations set forth in paragraph `2' of the complaint." (Emphasis supplied.) On October 30, 1952, plaintiff took the pretrial deposition of Kennedy and Allen. Kennedy deposed, as he subsequently testified on the trial, that about a week or so prior to the commencement of the job (4814), he had made an oral contract with plaintiff's marine superintendent, Walling, by which defendant undertook to clean and gas-free the vessel and prepare her for the shipyard (212, 4652, 4653), providing labor, materials and equipment (779-780), the price to be fixed upon the completion of the job (779-780, 792; cf. Allen, 955-957; Walling, 4285-4287). On March 1, 1956, defendant served notice that "prior to the commencement of the trial" defendant would move "to amend its answer so as to affirmatively allege assumption of risk and contributory negligence" (26). In its opening statement, defendant contended that, during the progress of defendant's operation, its status as an independent contractor had been modified (97-103). On May 4, 1956, one month after the commencement of the trial, defendant asked leave to file a second amended answer containing, inter alia, the following (cf. 2769-2773, 3094-3136): "* * * Second: Admits that in the month of December, 1951, defendant orally was engaged to furnish men and materials to work on cleaning and gas freeing cargo tanks on the S. S. Bulkpetrol but during the course of operations plaintiff, its agents, servants or employees took over the supervision, direction and control, and assumed the performance of major segments of the work and in order to speed up the work rendered assistance to and furnished materials and equipment to defendant; that on December 25, 1951, while the tanks were being cleaned an explosion occurred in No. 4 port wing tank of the vessel, causing damage to the vessel; and, except as expressly admitted, denies the allegations set forth in paragraph `2' of the complaint." (Emphasis supplied.) Leave to file the second amended answer was subsequently granted. The Court finds that the evidence offered in support of defendant's defense, above quoted, was completely unreliable. The Court finds and concludes *926 that defendant did not establish any of its defenses, including the defenses of plaintiff's assumption of risk and plaintiff's contributory negligence. Kennedy, who actively participated in planning it (4632, 4635, 4642), was foreclosed by his pretrial deposition (4683-4684) from testifying that he had negotiated, or been present at the negotiation of, any alteration of the contract he had made with Walling (4685-4686). Kennedy, however, gathered the impression that Allen would testify to having had a conversation with the mate, and possibly with the master (4687-4689), presumably involving a change in the original contract (4695-4699). The matter of blowers was considered to be a paramount element in planning the defense, and there was consideration of what evidence might be obtained on that subject (4691-4692). The defense was built around one piece of truth and another piece of partial truth. The element of truth was that, on the day before the explosion, defendant had arranged to employ as many of the members of the ship's crew as might be willing to work for defendant during their off-duty hours. The element of partial truth related to a suggession, made much earlier, that the vessel, having carried Kuwait crude oil, could be cleaned more efficiently with cold water than with hot. On the slender foundation of those two incidents, defendant unsuccessfully undertook to prove that defendant was ordered to change its method of cleaning at the same time it employed the members of the crew; that blowers or other devices for ventilating the tanks were not required or ordinarily used when tanks were washed with hot water; and that defendant deferred to plaintiff's order upon the understanding that plaintiff would provide ventilation for the tanks, which defendant had no means or expectation of providing. Whatever the relative merits of hot water and cold water in washing tanks that have carried Kuwait crude oil, the need for ventilation is substantially the same whether they have been washed with one or the other. Tanks forty feet deep do not dependably free themselves of gas after either kind of washing when the escape openings measure only a fraction of one percent of the surface area of the tank. Defendant's experts so testified (Mercer, 4530; Murray, 6667-6670; 4547-4549), as did every other witness who touched on the point (Bird, 1336-1337; Shorrock, 1112-1113; Purdy, 3203-3204), save defendant's officers and Lamanna. Kennedy admitted that the duty of ascertaining whether a tank was adequately washed, or should be rewashed, normally rested on defendant's general foreman, in this case Lamanna; and that he also was normally charged with the duty of ascertaining whether a tank had been sufficiently ventilated for the muckers to work in it (Kennedy, 4659-4660). The Court has already set forth its specific findings that the fact that the ship's crewmen and officers worked for defendant on their own off-duty time did not change the independent contractor relationship between plaintiff and defendant. Lamanna's testimony about the speedup of the job, the alleged directive to use cold water, the alleged blower or blowers supplied by Shorrock, and Shorrock's assumption of responsibility for proper ventilation (3741-3742, 3740-3743, 3803, 3806-3809, 3826-3827, 3831) is, in the Court's opinion, contrary to the facts and is, accordingly, rejected. Defendant's argument that plaintiff's master was not relieved of responsibility, notwithstanding plaintiff's engagement of defendant as an independent contractor, does not apply to this action by plaintiff against defendant. See Geotechnical Corp. of Delaware v. Pure Oil Co., 5 Cir., 1952, 196 F.2d 199, 203. The rule that a master is at all times responsible for the safety and proper navigation of the vessel, and that he cannot relieve himself of that responsibility, applies where the action is, typically, by an injured third party and the *927 shipowner attempts to avoid liability by claiming that the master's duty has been delegated to another, such as a towing company or pilot. Robins Dry Dock & Repair Co. v. Navigazione Libera Triestinea, 2 Cir., 1929, 32 F.2d 209; Charente S. S. Co. v. United States, 5 Cir., 1926, 12 F.2d 412. Such is not the case here. We turn now to defendant's charge of "statutory fault" on the part of plaintiff. Defendant strongly argues that plaintiff is barred from recovery because of plaintiff's "statutory fault" in violating an allegedy applicable Coast Guard regulation. The particular regulation relied on by defendant is contained in Tank Vessel Regulations, promulgated on March 1, 1951 and effective July 1, 1951 (C.F.R., title 46 ["Shipping"] Chapter I ["Coast Guard"], Subchapter D ["Tank Vessels"], Part 35 ["Operations"], Subpart 35:30 ["General Safety Rules"], p. 153, section 35:30-10). This regulation reads as follows: "35.30-10. Cargo tank hatches, ullage holes, and Butterworth plates-TB/ALL. No cargo tank hatches, ullage holes, or Butterworth plates shall be opened or shall remain open without flame screens, except under the supervision of the senior member of the crew on duty, unless the tank opened is gas free." It is the Court's opinion that the above-quoted regulation did not apply to the Bulkpetrol at the time of the explosion as a matter of law and as a matter of fact, for a number of independent reasons which will now be discussed. 1. The regulation was not applicable as a matter of law because this regulation applied to a tank vessel only when it had liquid cargo in bulk on board. The Bulkpetrol had completely discharged its crude oil cargo several days before the explosion on December 25, 1951 and, therefore, at the time of the explosion it did not have "on board" any inflammable or combustible "cargo in bulk." The text of the statutory authority for the promulgation of the regulation under consideration is found in Title 46 U.S. C.A. § 391a, entitled "Vessels having on board inflammable or combustible liquid cargo in bulk." (Emphasis supplied.) Defendant relies on that section as the statutory authority for the regulation now being discussed (defendant's main post-trial brief, p. 144). Subdivision (1) of section 391a, entitled "Vessels included," provides, in part, as follows: "All vessels, * * * that shall have on board any inflammable or combustible liquid cargo in bulk, * * * shall be considered steam vessels for the purposes of title 52 of the Revised Statutes and shall be subject to the provisions thereof: * * *." (Emphasis supplied.) Subdivision (2) of section 391a, entitled "Rules and regulations for handling liquid cargo" (emphasis supplied) provides, in part, as follows: "In order to secure effective provision against the hazards of life and property created by the vessels to which this section applies, the Commandant of the Coast Guard shall establish such additional rules and regulations as may be necessary with respect to the design and construction, * * * including * * * places for stowing and carrying such liquid cargo, fittings, equipment, appliances, * * *; and with respect to the handling and stowage of such liquid cargo; * * and with respect to * * * appliances for * * * fire protection; and with respect to * * * the duties * * * of the officers and crews thereof; * * *. In establishing such rules and regulations, the Commandant of the Coast Guard shall give due consideration to the kinds and grades of such liquid cargo permitted to be on board such vessel." (Emphasis supplied.) The preface to the Tank Vessel Regulations written by Coast Guard Commandant Vice-Admiral Merlin O'Neill, dated March 1, 1951 (Treas. Dept. U. S. *928 Coast Guard, Tank Vessel Regulations, CG123) states: "These `Tank Vessel Regulations' are applicable to all vessels regardless of tonnage or size, whether self-propelled or not, and whether carrying freight or passengers for hire or not, that have on board any inflammable or combustible liquid cargo in bulk." (Emphasis supplied.) Table 30:01-5(d) of the Tank Vessel Regulations (46 C.F.R., parts 1-145, at p. 91) describes the vessels subject to the particular regulation as "all vessels carrying combustible or inflammable liquid cargo in bulk." (Emphasis supplied.) 46 C.F.R. section 30:10-5 (at p. 93) defines "cargo" as "combustible liquid, inflammable liquid, or liquefied inflammable gas unless otherwise stated." (Emphasis supplied.) The vessel having completely discharged all the crude oil into shore tanks of the Gulf Oil Corporation, was without "cargo." Cf. the definition of "cargo" in Ryan Stevedoring Co., Inc. v. United States, 2 Cir., 1949, 175 F.2d 490, 494, certiorari denied 1949, 338 U.S. 899, 70 S. Ct. 249, 94 L. Ed. 553. Consequently, 46 U.S.C.A. § 391a, and the regulation promulgated pursuant to that statute, did not apply to the Bulkpetrol on December 25, 1951, the day of the explosion. It is to be noted that 46 U.S. C.A. § 391a contains subdivision (7), entitled "Penalties," which provides that a violation of the provisions of section 391a "or of the rules and regulations established hereunder" — regardless of wilfulness — is punishable by a fine or imprisonment or both. Thus, section 391a, being quasi-penal, should not be given an expansive interpretation, but should be limited to the situations specified by its terms. McHoney v. Marine Navigation Company, 4 Cir., 1956, 233 F.2d 769. The McHoney case is a close and persuasive analogy. In that case, the Court was required to interpret a Coast Guard Regulation relating to the loading of sulphur in bulk. Plaintiffs-longshoremen received injuries as a result of a flash fire in a hold of defendant's vessel. Plaintiffs charged that the fire was caused by unseaworthiness of the vessel and defendant's negligence. The only issue upon the appeal was whether the particular Coast Guard Regulation (referring to sulphur as a dangerously inflammable cargo) was applicable to the facts of the case, which showed that the sulphur was being unloaded. Under the Coast Guard regulation, it was a requirement that a fire hose supplied with fresh water from a shore supply source be available at each hatch through which the sulphur was being loaded. The Court, through Circuit Judge Dobie, held (at page 770): "Our decision is rested squarely upon the ground that the Coast Guard Regulation in question does not apply to the unloading of sulphur. (Emphasis in original.) The Court pointed out that, under the particular Coast Guard regulation, the requirement of the availability of a fire hose at each hatch was applicable to a hatch through which the sulphur is being "loaded," but that the regulation did not apply to a hatch through which the sulphur was being "unloaded" as distinguished from being "loaded." Judge Dobie went on to say (at page 771): "The Coast Guard Regulation is in the nature of a penal regulation, promulgated by the Coast Guard pursuant to Title 46 U.S.C.A. § 170, Subsection 7. Subsection 15 of the same section of the code provides that `When the death or bodily injury of any person results from the violation of this section or any regulations made in pursuance thereof' the person who violated the provisions of the section or the regulations shall be fined `not more than $10,000 or imprisoned not more than ten years, or both.' Other severe penalties are prescribed against the owner, charterer, agent, master or person in charge of the vessel when *929 these regulations are violated. Accordingly, it should not be expansively interpreted. Cf. Kordel v. United States, 335 U.S. 345, 69 S. Ct. 106, 93 L. Ed. 52; Schmokey v. United States, 10 Cir., 182 F.2d 937." The penalty provisions of 46 U.S.C.A. § 170, discussed by Judge Dobie, supra, are contained in subdivisions (14) and (15) of section 170, both of which become operative only when the violation was "knowingly" committed. The cognate penalty provision in section 391a (7), however, creates criminal liability regardless of mens rea. The reasoning of Judge Dobie is a fortiori pertinent to the regulation now before the Court; hence, that regulation did not apply to the Bulkpetrol when it did not have liquid cargo in bulk on board. 2. If we assume arguendo that the regulation was applicable as a matter of law, notwithstanding the absence from the vessel of liquid cargo in bulk on board: the regulation was inapplicable to the vessel as a matter of fact, in view of the nature of the tank-cleaning and gas-freeing activities that were being carried on at No. 4 port wing tank at the time of the explosion. The requirement — that no cargo tank hatch, ullage hole, or Butterworth plate shall be opened or shall remain open without flame screens, except under the supervision of the senior member of the crew on duty, unless the tank opened is gas-free — could not apply to No. 4 port wing tank while it was in the process of being tank-cleaned and gas-freed. By the evening of December 25, 1951, the tank had been washed and Butterworthed. The tank had to be opened and kept open without a fire screen in order to tank-clean it and to permit the residual gases to escape from the hatch opening, ullage holes and Butterworth plate holes by means of convection ventilation. Men (Ohlsen and Hofstetter) had to go down into the tank through the hatch opening for the purpose of mucking. A man (Israelson) had to be stationed at the hatch opening to handle (connect, raise or lower) the droplight and the light cable. Pails, shovels and other equipment had to be lowered into and raised out of the tank. When the pails are filled with muck, two men (2516) lift them. A block and tackle with a safety rig was used (2514-2516). It is obvious that the very process of mucking can be carried on only when the hatch is opened and kept open without a fire screen. Moreover, the fine gauge specifically prescribed by the regulations for a flame screen (section 30:10-25) would have materially inpeded the continuous ventilation of the tank and the escape of residual gas fumes from the tank. The regulation required "a single screen of corrosion-resistant wire of at least 30 by 30 mesh, or two screens, both of corrosion-resistant wire, of a least 20 by 20 mesh, spaced not less than ½ inch or more than 1½ inches apart." Thus, the practical realities of tank-cleaning and gas-freeing demonstrate convincingly that, under the particular circumstances prevailing on the Bulkpetrol on the evening of December 25, 1951, the literal requirements of Regulation 35.30-10 became and were inapplicable. 3. If we further assume arguendo that the regulation was applicable both as a matter of law and as a matter of fact: then the doctrine of "statutory fault" would become operative. The Pennsylvania, 1873, 19 Wall. 125, 86 U.S. 125, 22 L. Ed. 148; The Martello, 1894, 153 U.S. 64, 14 S. Ct. 733, 38 L. Ed. 637; Lie v. San Francisco & Portland S. S. Co., 1917, 243 U.S. 291, 37 S. Ct. 270, 61 L. Ed. 726; The Papoose, 2 Cir., 1936, 85 F.2d 54; The M. M. Chase, D.C.S.D.N.Y.1889, 37 F. 708; The Denali, 9 Cir., 1939, 105 F.2d 413, 418, also 9 Cir., 112 F.2d 952, 955-958, certiorari denied sub nom. Alaska S. S. Co. v. Pacific Coast Coal Co., 311 U.S. 687, 61 S. Ct. 65, 85 L. Ed. 444. See Dimas v. Lehigh Valley Railroad Company, *930 2 Cir., 1956, 234 F.2d 151, 155, 156; Mason v. Lynch Brothers Company, 4 Cir., 1956, 228 F.2d 709, 712. Under that doctrine, as expounded in the above-cited cases, the plaintiff, if violator of the regulation, would have the burden of proving "that by no possibility could the violation have contributed to the accident." See, e.g., Dimas v. Lehigh Valley Railroad Company, 2 Cir., 1956, 234 F.2d 151, 156; Petition of Diesel Tanker A. C. Dodge, Inc., 2 Cir., 1956, 234 F.2d 374, 377. The evidence in this case convincingly establishes that "by no possibility" could plaintiff's failure — to have a flame screen on the hatch or other openings or to have the senior member of the crew on duty exercise supervision — have caused or contributed to the cause of the explosion. The vessel's tubes were blown a considerable time before the occurrence of the explosion. Just prior to the explosion, the third officer on watch on the bridge did not see any sparks (Runge, 3471). It was foggy. There was either rain, sleet or snow. The Court finds that it was the regular and standard practice on the Bulkpetrol for the second assistant to blow the tubes at about four o'clock in the afternoon, as soon as he went on watch. (Bird, 1525, 1532-1533; Lennon, 1555-1556). The tubes were not blown at or about 8 P.M. (Bird, 1525, 1526). The following physical construction of the Bulkpetrol and the relative location of the funnel and No. 4 port wing tank have also been considered by the Court: the funnel or stack was about 300 feet away from the No. 4 port wing tank; the midship housing (27 feet wide and 36 feet high) was between the funnel (which was 36 feet tall) and the No. 4 port wing tank; the midship housing was 160 feet from the funnel and 120 feet on the other side from the No. 4 port wing tank (Mercer, 4537; Sheridan, 6452-6457, 6487; Exhs. [2d series] B, C, D). Mercer, one of defendant's experts, contradicted Sheridan, another of defendant's experts, with respect to the distance that a spark could travel in a fog and rain. On this point, Mercer's testimony — that a spark would penetrate a fog and rain only "a few feet" — is more credible than Sheridan's opinion that a spark could travel hundreds of feet in such weather (Mercer, 4537, 4539). Sheridan's opinion testimony as a whole, on the subject of sparks, is rejected by the Court as inexpert and unreliable (Sheridan, 6518, 6522-6533). Plaintiff sustained the burden of proving that any alleged violation by it of the regulation could not and did not cause or contribute to the cause of the explosion. The mere violation of the regulation, without more, is insufficient to render plaintiff guilty of "active" negligence and so to debar it from recovering from defendant. Cf. Kozman v. Trans World Airlines, Inc., 2 Cir., 1956, 236 F.2d 527, 535; Lowery v. Hudson River Day Line, D.C.E.D.N.Y. 1955, 132 F. Supp. 629. 4. Finally, it must be said that defendant, having agreed and undertaken to supervise its work in a safe and proper manner, cannot, in this private suit, be permitted to set up its own neglect of that duty as a statutory fault on the part of plaintiff, who engaged defendant to do the work (Allen, 2342-2343). Cf. Geotechnical Corp. of Delaware v. Pure Oil Co., 5 Cir., 1952, 196 F.2d 199, 203. Upon the trial and in its post-trial briefs, defendant has placed great stress upon plaintiff's private regulations and safety rules (Defendant's Exh. DD; see record 4408, 4571). These rules and regulations were prepared by plaintiff "for the guidance of the seagoing personnel in the operation of our vessels. They are intended, moreover, to serve as a guide for uniform practices leading to efficient and economical operation throughout the fleet" (4435, 4571-4572). There are specific rules and a circular letter relating to cleaning and gas-freeing tanks (4572-4576), prevention *931 of accidents (4577), and the master's and other officers' duties (4578-4582). Defendant offered these rules and regulations into evidence on the triple theory (1) that they constituted "an admission on the part of libelant as to what are proper safety practices"; (2) that they are some evidence of contributory negligence, if they were not followed by plaintiff's officers and employees; and (3) that they are material to the question of "who had the control and responsibility over the Bulk-petrol during the tank-cleaning process" (4435-4438, 4582). In elaboration of the second branch of the theory, defendant argued that plaintiff's safety rules were made for the protection and preservation of plaintiff's property (4448) "from damage and accident, such as happened here" (4449); and that, since plaintiff was under a duty owing to itself to preserve its property, plaintiff's safety rules and any violations thereof were "pertinent on contributory negligence" (4450). Extensive argument was had during the trial on the question of the relevancy and materiality of the proferred evidence, and the question was fully briefed (4318-4319, 4409-4413a, 4430-4469). The Court rendered its "provisional and qualified" ruling (4450-4459), admitting the evidence over plaintiff's objection (4466). There is little to be added to the Court's original opinion as expressed during the trial (4450-4459), except to underscore the critical point made by Circuit Judge Waterman in Renaldi v. N. Y., N. H. & H. R. Co., 2 Cir., 1956, 230 F.2d 841, 844, that private safety rules are properly admitted into evidence "when their purpose is to protect the class of persons by whom suit is brought and when their violation can reasonably be said to contribute to the injury sued upon. Krasnow v. National Airlines, Inc., 2 Cir., 1955, 228 F.2d 326; Dundom v. New York Cent. R. Co., 2 Cir., 1944, 145 F.2d 711. These prerequisites were satisfied in this case." (Emphasis supplied.) Judge Waterman, in Krasnow v. National Airlines, Inc., 2 Cir., 1955, 228 F.2d 326 at page 327 had expounded the same view when he said: "The plaintiff contends that evidence of an airline rule to the effect that passengers were not allowed to drink from their own bottles was erroneously excluded. A private regulation of a common carrier may have some relevance in a negligence action brought by a passenger when the purpose of the regulation is to protect passengers and when a violation of the regulation by company employees causes or contributes to the injury sued upon. See Boston & Maine R. R. v. Daniel, 2 Cir., 1923, 290 F. 916, 922; Peterson v. Boston & Maine R. R., 1941, 310 Mass. 45, 36 N.E.2d 701, 705; cf. Frizzell v. Omaha St. Ry. Co., 8 Cir. 1903, 124 F. 176. We think it probable that the purpose of the airline regulation here involved was not the safety of passengers, but the protection of the airline's revenues from the sale of beverages." (Emphasis supplied.) Various aspects of the same principle governing the subject of private safety rules are illustrated in such cases as Johnson v. Erie Railroad Co., 2 Cir., 1956, 236 F.2d 352; Perrone v. Pennsylvania R. Co., 2 Cir., 1943, 136 F.2d 941; and DeRyss v. N. Y. Central R. R. Co., 1937, 275 N.Y. 85, 9 N.E.2d 788. In the Johnson case, supra, 236 F.2d at page 356, it was said that a violation of a railroad's safety rule requiring proper warning of a locomotive coupling, if proved, would constitute "some evidence of negligence," in an F.E.L.A. case. In the Perrone case, supra, 136 F.2d at page 943, it was held that the violation of a defendant-railroad's safety rule might be evidence of negligence where the injured party had been led to rely for his safety on the railroad's enforcement *932 of that particular safety rule. In the DeRyss case, supra, 275 N.Y. at page 93, 9 N.E.2d 788, 790, the railroad's employee had violated the railroad's safety rules by permitting a hunter to trespass on the railroad's property, with the result that the hunter shot a gun and killed plaintiff's decedent. The New York Court of Appeals said: "The watchman and the shooter might be liable, but not the owner. His rules and instructions, like those of the railroad in this case, were made for his advantage, not disadvantage; the injured person could not claim that the watchman was negligent because he had violated his employer's instructions to permit no trespassing. The plaintiff in this case cannot predicate the company's liability on a violation of its own rules against trespassers; these were made for its protection not to give the right of recovery to strangers; to define the duties of employees, not to increase the company's liability. If no liability existed in the absence of these rules, surely none was created by the caution which prompted them. These few fundamental common-law principles of master and servant may be found in sections 315, 318 and 348 of the Restatement of the Law of Torts [American Law Institute]." Where, as in the case at bar, the defendant-independent contractor did not itself suffer injury; was completely unaware of and did not rely upon the existence of certain so-called safety rules of plaintiff, and utilized its own employees and equipment to do the job for which it was engaged, it is no answer for defendant to say that plaintiff should have insisted that defendant comply with plaintiff's safety rules or that plaintiff's personnel comply with such rules in order for plaintiff to protect itself from defendant's negligence. It would be a caricature of justice to permit defendant now to claim that plaintiff was guilty of contributory negligence, because plaintiff relied upon defendant's representation and warranty of its skill as a specialist. Plaintiff's rules were prescribed for the guidance of its own employees, who were not or might not be experts. These rules were prescribed to govern the conduct of plaintiff's employees when they might be engaged in doing the tank-cleaning and gas-freeing work which defendant was engaged to do. Even the most stringent of plaintiff's rules is specifically addressed to a situation in which plaintiff's personnel is being assisted by shore workmen. In the present case, plaintiff's personnel were not working for plaintiff in the tank-cleaning and gas-freeing project. That work was contracted to be done and was being done by defendant, acting independently, acting with pretended or represented expertness, following its own rules and pursuing its own methods. Rules which a shipowner might lay down to govern the work of its employees might be wholly inapplicable to work of the same kind being done by an independent contractor engaged to do painting, scaling, repairing or—as here— tank-cleaning. Defendant herein was not an intended beneficiary of plaintiff's safety rules. Defendant-corporation was an independent contractor, a professed and avowed expert, which undertook to tank-clean and gas-free the vessel for plaintiff. Defendant is answerable to plaintiff for defendant's own negligence in violation of its duty to plaintiff. Defendant's agreement to tank-clean and gas-free the Bulkpetrol necessarily included defendant's obligation to tank-clean and gas-free the vessel properly and safely. We quote and paraphrase the language in Ryan Stevedoring Co. v. Pan-Atlantic Corp., 1956, 350 U.S. 124, 133-135, 76 S. Ct. 232, 237, 100 L. Ed. 133, as indicating the rationale of the Supreme Court in dealing with a closely analogous problem: "Competency and safety * * * are inescapable elements of the service undertaken. This obligation *933 is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of" defendant's tank-cleaning and gas-freeing "contract." It is defendant's "warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product. * * *" Defendant suggests that, because plaintiff had a right to stop unsafe methods of tank-cleaning and did not do so, "it now should be barred from recovery from the" defendant of "any damage caused by that contractor's uncorrected failure" to clean and gas-free the tanks "in a reasonably safe manner. Accepting the facts and obligations as above stated, the shipowner's present claim against the contractor should not thereby be defeated. * * * it is clear that, as between themselves, the contractor, as the warrantor of its own services, cannot use the shipowner's failure to discover and correct the contractor's own breach of warranty as a defense." Plaintiff's "failure to discover and correct" defendant's "own breach of contract cannot here excuse that breach." It might be that a stranger could point to the Coast Guard regulations and to plaintiff's rules, or to either, and persuasively assert that their purpose was to protect the public and that their violation had contributed to the stranger's injury. In the same circumstances, the same assertion might be equally effective if set up by the stranger as a defense to a claim by plaintiff. There is no occasion to consider those possibilities, because, as between plaintiff and defendant, the former had entrusted to the latter the performance of whatever duty was created by those regulations and rules and any violation of them was defendant's act or omission, for which it was answerable to plaintiff under defendant's warranty of good workmanship. The Court has considered the evidence relating to plaintiff's safety rules with respect to all of the purposes for which defendant offered it. When considered as relevant to the standard of care— "just like the practise in the trade" (defendant's attorney, at 4436)—the evidence points up defendant's failure to comply with such standard. Such evidence does not tend to prove plaintiff's contributory negligence or assumption of risk because defendant had been engaged as an expert specialist to perform this very work and plaintiff had the right to rely upon defendant's safely performing the job (see e.g., 394). There is not the slightest evidence that defendant was a person for whose protection plaintiff's safety rules were promulgated; nor is there any evidence that plaintiff's alleged violations of its rules caused or contributed to the explosion. This is not the case where a plaintiff may be guilty of contributory negligence in failing to use ordinary prudence to avoid receiving the injury. See Phillips Petroleum Company v. Gibson, 5 Cir., 1956, 232 F.2d 13, 19. As the proper standard of care is a question of law, in cases tried without a jury (Dale v. Rosenfeld, 2 Cir., 1956, 229 F.2d 855, 858), the views detailed in the foregoing opinion are to be deemed to express conclusions of law, as well as findings of fact. The standard of defendant's liability in this case was negligence; and the question was what a reasonable and prudent person would have done under the circumstances. In violation of that duty, defendant failed to use such reasonable care. Defendant's negligence was the competent producing and proximate cause of the explosion and the resulting injuries and damages to plaintiff. In its discretion (Newburgh Land & Dock Corp. v. Texas Company, 2 Cir., 1955, 227 F.2d 732, the Court allows interest to plaintiff from the date of the injury or loss. The Court has jurisdiction of the parties to and the subject matter of this action. The findings of fact and conclusions of law upon which the Court's judgment is based are set forth in this opinion. *934 Cf. Hecht, Levis & Kahn, Inc. v. S. S. President Buchanan, 2 Cir., 1956, 236 F.2d 627, 629. The Clerk is directed to enter an interlocutory decree in favor of plaintiff against defendant for plaintiff's full damages, with interest and costs. The issue of the amount of plaintiff's damages will be referred to Cloyd Laporte, Esq., as special commissioner, who will ascertain and compute the damages and report thereon to this Court. Submit formal interlocutory decree in accordance with the foregoing, within five days from the date of The New York Law Journal's notice of this opinion and decision. NOTES [1] Except as otherwise indicated, references are to the stenographer's minutes of the trial record. Libelant will be referred to as plaintiff; respondent as defendant. The trial commenced April 4, 1956 and ended June 29, 1956. The trial record, exclusive of exhibits, amounts to 6968 pages.

2013-10-30 06:32:42.802293+00

Morton

34 Md. App. 294 (1976) 367 A.2d 970 LEON LEVI WILSON AND JAMES WILLIS GREEN v. STATE OF MARYLAND. No. 163, September Term, 1976. Court of Special Appeals of Maryland. Decided December 29, 1976. *295 The cause was argued before GILBERT, C.J., and MORTON and MASON, JJ. Bradford C. Peabody, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender, and Arthur A. DeLano, Jr., Assistant Public Defender, on the brief, for appellants. Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and William Monfried, Assistant State's Attorney for Baltimore City, on the brief, for appellee. MORTON, J., delivered the opinion of the Court. Appellants, Leon Levi Wilson and James Willis Green, were each convicted by a jury in the Criminal Court of Baltimore (Sklar, J., presiding) of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence. Additionally, Wilson was found guilty of assault. Wilson was sentenced to twenty years imprisonment for the robbery, concurrent to a ten year term for the handgun violation and consecutive to a four year term for the assault. Green received concurrent eight year terms for the robbery and the handgun charge. Because we agree with the appellants' contention that they were denied their constitutional right to a speedy trial, no elaboration of the facts leading up to their convictions is necessary. Suffice it to say that they accosted the male victim with a gun and robbed him of $22. Both appellants were arrested on November 30, 1974. Their case was first called for trial on June 23, 1975, but was postponed because not enough jurors were available. The trial, rescheduled to begin on October 17, 1975, was again *296 postponed by the State because no court was available when appellants prayed a jury trial. Wilson filed a motion to dismiss his indictment for lack of a speedy trial on October 22, 1975. The motion was heard and denied on January 13, 1976, by Judge Hargrove. On the other hand, Green first requested a speedy trial on October 28, 1975. He filed a motion on January 7, 1976, to dismiss the indictment for lack of same. The motion was heard and denied by Judge Sklar on January 19, 1976. After the October 17, 1975, postponement, the trial was rescheduled to begin on January 13, 1976, at which time it was postponed once again, this time because Green's counsel was unavailable. One week later, on January 19, 1976, the trial began. Both appellants were incarcerated continuously from the date of their arrest to the date of the trial. In treating their contention that they were denied a speedy trial,[1] we note, at the outset, that the length of delay between the date of arrest and date of trial, 13 months and 3 weeks, is of sufficient "constitutional dimension" to "trigger" the four-fold analytical process enunciated in Barker v. Wingo, 407 U.S. 514, 530 (1972), Jones v. State, 279 Md. 1 (1976) and Epps v. State, 276 Md. 96, 109 (1975). The four factors in the balancing test are (a) length of delay, (b) the reason for the delay, (c) the defendant's assertion of his right and (d) prejudice to the defendant. Dealing with the factors in their order of ascending pre-eminence in this case, we first consider the Defendant's Assertion of Right prong. Appellant Wilson moved to dismiss the indictment for lack of speedy trial on October 22, 1975, while appellant Green filed a motion for speedy trial on October 28, 1975, as well as a motion to dismiss for lack of same on January 7, 1976. Both appellants were arrested on November 30, 1974. Both appellants endured postponements of trial on June 23, 1975, *297 and October 17, 1975. Neither appellant demanded a speedy trial until after that point. Thus, it was not until after two postponements and nearly 11 months from the date of arrest that appellants sought affirmatively to assert their right to a speedy trial. Thereafter, the State moved with reasonable expedition, approximately three months, to bring appellants to trial. While Barker explicitly rejected the "demand-waiver" rule, it added the following caveat: "This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation * * * would * * * allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." Barker, supra, at 528-29. It is our view that whatever weight is to be accredited to appellants by reason of their demand for a speedy trial, it is counter-balanced by the fact that they waited until after two trial postponements and eleven months to do so; a lack of frequency in their demands; and the State's diligent effort to try them thereafter. We balance this factor to be neutral with minimal significance to be given either side. It is clear, in light of Barker, that here the State must shoulder the blame under the Reason for Delay prong. See, e.g., Evans v. State, 30 Md. App. 423, 428 (1976). Appellants were twice ready to proceed with the trial only to have it postponed because "not enough jurors were available" and "no court was available." "[T]he ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, supra, at 531. Barker, however, noted that "different weight should be assigned to different reasons. * * * A more neutral reason such as negligence or overcrowded courts should be weighed less heavily" than a deliberate attempt to delay the trial for *298 tactical purposes. Id. We balance this prong in appellants' behalf but attach to it minor weight in light of the circumstances. In considering the Length of Delay prong,[2] we treat it with the Prejudice to the Defendant prong since, in this case at least, the two are inextricably meshed. "A certain quantitative and qualitative degree of delay gives rise to a rebuttable presumption of prejudice and will shift the burden of going forward with the evidence from the accused to the State. Before that critical point is reached, there rests upon the accused, as the moving party, the burden of persuading the hearing judge that he has suffered actual prejudice or the strong possibility of prejudice. Once that critical point has been reached, however, the presumption of prejudice arises and the burden of going forward with the evidence shifts to the State. That critical point on the delay scale where the presumption arises and the burden shifts has been denominated the point of `substantial' delay. Lawless [State v. Lawless, 13 Md. App. 220 (1971)], at 233; Stevenson v. State, 4 Md. App. 1, 13-15, 241 A.2d 174." State v. Jones, 18 Md. App. 11, 27 (1973). Thus, unless the delay is "substantial,"[3] the burden of going *299 forward with evidence to demonstrate prejudice rests upon the accused. We presently view this determination to be extremely crucial in light of the fact that no direct evidence of prejudice was demonstrated at the hearing below on the speedy trial issue.[4] Appellants, however, point to those types of prejudice that are inherent in any delay prior to trial, to wit: "personal factors" in the Barker sense and an impairment of witnesses' ability to recall details. Prejudice of this nature, however, will be "presumed" only when the delay is "substantial." But in the circumstances here, the delay of 13 months and three weeks cannot be deemed insubstantial and must be considered of sufficient length to invoke the presumption of prejudice and shift the burden to the State to produce evidence which will demonstrate that the appellants suffered no prejudice by reason of the delay. In the record before us the State failed to provide even a scintilla of such evidence. In fact, the State made no effort whatsoever to carry its burden which in this instance it may or may not have been able to shoulder successfully. While we are sympathetic to the problems imposed by an overcrowded docket, especially in Baltimore City and other urban centers, the right to a speedy trial is one of the hallmarks upon which our criminal justice system rests. We simply cannot countenance a delay in excess of 13 months as a necessary evil resulting from our society's ills. When the delay reaches this dimension, the justice which is due an accused is jeopardized. By shifting to the State the burden of demonstrating lack of prejudice to the appellants, we endeavor to keep the interests of justice in balance. Since the State failed dismally to meet its burden, we weigh the *300 Length of Delay and Prejudice prongs heavily in appellants' favor. Thus, balancing the four factors we observe that they are either neutral or are weighted in appellants' behalf. We conclude, therefore, that appellants were denied their right to a speedy trial guaranteed them under both the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. "Since dismissal of the indictment is the only possible remedy when a speedy trial has been denied, Barker v. Wingo, supra; Strunk v. United States [412 U.S. 434 (1973)] * * * we are reluctantly constrained, upon constitutional grounds, to conclude that the indictment upon which * * * [Wilson and Green were] * * * convicted must be dismissed." Epps, supra, at 121. We do not reach the remaining contentions raised by appellants. Judgments reversed; costs to be paid by the Mayor and City Council of Baltimore. NOTES [1] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * *." U.S. Const. Amendment VI. "That in all criminal prosecutions, every man hath a right * * * to a speedy trial by an impartial jury * * *." Art. 21, Maryland Declaration of Rights. [2] In this calculation we have used January 19, 1976, as the cut-off date when measuring the delay. Actually, with regard to Green, the proper cut-off point is January 13, 1976, since the subsequent six day delay was caused by the absence of his counsel and thus, not attributable to the State. Wilson, on the other hand, was ready to proceed with the trial on January 13, 1976, but was made to wait six days so that he could be tried together with Green. As such, there are viable reasons why the January 19, 1976, date is the appropriate measuring rod with regard to him. We see no need to render a ruling on this matter since we conclude that the additional six days are of little, if any, consequence in reaching the ultimate speedy trial determination. For present purposes, therefore, the cut-off date when measuring the delay for both appellants will be January 19, 1976. [3] There is, of course, a distinction between the threshold inquiry into whether the delay was of "constitutional dimension" in the Barker sense and the later inquiry as to "substantial" delay. Under this approach the Court looks first to see if there is some minimal delay which "triggers" an examination into the four prong test. While a short delay may be sufficient to warrant a scrutiny of the surrounding circumstances, a somewhat longer delay of "substantial" length is necessary to "trigger" the presumption of prejudice. See State v. Jones, supra, at 22-23, 27-29. [4] Appellants note that "[d]uring the interval of the delay in this case, Appellant Wilson lost contact with one potential witness." An examination of the record reveals that this loss pertains solely to the delay between January 13, 1976, and January 19, 1976, a delay attributable to the absence of Green's counsel. See note 2, supra. We find it unnecessary, however, to examine the ramifications that this might have on Wilson since we conclude that this potential loss is more speculative than factual and does not amount to a demonstration of prejudice.

2013-10-30 06:32:42.808684+00

Gettleman

955 F. Supp. 891 (1996) Michael R. FEDOR, Plaintiff, v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, State of Illinois, Kathy Caruso, and Peggy Seiler, Defendants. No. 96 C 3988. United States District Court, N.D. Illinois, Eastern Division. December 31, 1996. Gregory John Bueche, Wheaton, IL, for Michael R. Fedor. Anne Laura Loevy, Illinois Atty. General's Office, Chicago, IL, for Illinois Dept. of Employment Sec., State of Ill., Kathy Caruso and Peggy Seiler. MEMORANDUM OPINION AND ORDER GETTLEMAN, District Judge. Plaintiff, Michael R. Fedor, has filed a five count complaint against the State of Illinois, the Illinois Department of Employment Security ("IDES"), Peggy Seiler ("Seiler"), and Kathy Caruso ("Caruso"), alleging disability discrimination and harassment under the Americans With Disabilities Act ("ADA"). Respondents have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendant's motion is granted in part and denied in part. FACTS Plaintiff was hired for the North Aurora office by IDES on May 1, 1991. The IDES administers the state's employment security program. Plaintiff's responsibilities at IDES included receiving and processing applications for employment insurance benefits. In late January 1994, IDES granted plaintiff disability leave because he was suffering from "adjustment disorder with anxiety and anxiety disorder." Plaintiff contends that his disorder was work-related because it worsened when he was subjected to his supervisors' methods of administration, including *892 confrontation, harassment, and hostility. On February 2, 1995, plaintiff returned to work, allegedly upon IDES' order that he do so in order to keep his employment benefits, including health, dental, and life insurance, pension eligibility, and possibility of promotion. Prior to plaintiff's return to work, plaintiff's physician submitted a statement to the State of Illinois informing it of plaintiff's medical condition and diagnosis. The statement advised that plaintiff would be better able to perform his job if his tasks were simplified, if he received criticisms and feedback in private, and if he were transferred to another position or location. Despite this notification, plaintiff claims that, after he returned from disability leave and filed for employment compensation, the harassment and hostility increased. Plaintiff argues that the IDES management at the North Aurora office intentionally created a environment which they knew plaintiff would not be able to tolerate and which would harm plaintiff so that he would eventually resign. Among other alleged abusive acts, plaintiff's supervisors openly criticized him, gave plaintiff responsibilities without proper training, confronted plaintiff for behavior that would be tolerated when done by other employees, and continually reassigned him so that he was unable to settle into a routine. Although plaintiff allegedly told officials outside of the North Aurora office about the problems he was having and requested a transfer, no action was taken. Pursuant to his physician's recommendation, plaintiff resigned on October 23, 1995. On December 13, 1995, plaintiff filed charges with the Equal Employment Opportunity Commission against IDES for disability discrimination. Plaintiff received a right to sue letter on April 30, 1996. Thereafter, plaintiff filed a five count complaint in this court. Count I, against IDES, and Count II, against the State of Illinois, allege that plaintiff was discriminated against because of his disability in violation of Section 102 of the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"). Count III, against IDES and the State of Illinois, alleges that plaintiff was discriminated against because of his disability in violation of Section 202 of the ADA, 42 U.S.C. § 12132. Count IV, against Caruso, and Count V, against Seiler, allege that plaintiff was harassed by his supervisors because of his disability in violation of Title I of the ADA, 42 U.S.C. § 12101 et seq. Respondents move to dismiss plaintiff's complaint because: 1) plaintiff's pleadings fail to allege a disability within the meaning of the ADA; 2) respondents Caruso and Seiler are not employers within the ADA; and 3) plaintiff's retaliation claim does not establish a causal link between the adverse employment action and the protected expression. DISCUSSION I. STANDARD A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) does not examine the merits of the case, but rather tests the sufficiency of the complaint. Triad Assoc., Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S. Ct. 129, 112 L. Ed. 2d 97. All factual allegations and reasonable inferences in the plaintiff's favor are accepted as true and viewed in a light most favorable to the plaintiff. Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir.1993). A motion to dismiss for failure to state a claim will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). II. "DISABILITY" UNDER THE ADA In order for a plaintiff to be within the protected class under the ADA, the plaintiff must have a "disability" as defined by that statute. Weiler v. Household Finance Corp., 101 F.3d 519, 523 (7th Cir.1996); see also Homeyer v. Stanley Tulchin Assoc., 91 F.3d 959, 961 (7th Cir.1996). The ADA (42 U.S.C. § 12102(2)) defines "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) a record of such an impairment; or *893 (C) being regarded as having such an impairment. Although the ADA does not define "major life activities," the Equal Employment Opportunity Commission ("EEOC") regulations interpret the term as including "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (Emphasis added.). "Substantially limits" means a person is unable to perform a major life activity or "significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity," as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1)(i). Respondents argue that plaintiff has pleaded himself out of court because his amended complaint reveals that he does not have a "disability" under the ADA. See Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir.1994) (where a plaintiff pleads particular facts that show that he has no claim, he has pleaded himself out of court). Specifically, plaintiff has admitted that he would have been able to continue his job and perform all of the major functions of his job if his formal request for a transfer had been approved. From this statement, respondents infer that plaintiff's impairment limits only his ability to perform in his particular position at the North Aurora office under particular supervisors. To qualify as a "disability" under the ADA, however, plaintiff's impairment must do more; it must substantially limit his ability to perform a class of jobs or a broad range of jobs in various classes. Weiler, 101 F.3d at 523-25 (anxiety and stress caused solely by particular job and supervisor does not amount to "disability" under ADA); 29 C.F.R. § 1630.2(j)(3)(i). In support of its arguments, respondents cite numerous summary judgment cases where the court looked beyond the pleadings to determine that the plaintiffs were not disabled under the ADA because of their inability to work at particular positions. These cases, however, are not controlling at this stage of the pleadings. Respondents have filed a motion to dismiss under Fed. R.Civ.P. 12(b)(6), not a motion for summary judgment. Accordingly, this court must decide the motion based only on the pleadings. See Weiler, 101 F.3d at 524 n. 1. (decision that plaintiff pled facts sufficient to withstand Rule 12(b)(6) motion was not ruling on the merits). Contrary to respondents' assertions, plaintiff has not alleged that his job and supervisors caused his "adjustment disorder with anxiety and anxiety disorder," nor has plaintiff alleged that his disability would completely disappear were he to have been transferred to another location or position. Rather, plaintiff seems to suggest that, were he to have been transferred, his symptoms would not have been aggravated to the extent they were at the North Aurora office. Based on these observations, plaintiff has not pleaded himself out of court. Respondents' motion to dismiss plaintiff's amended complaint is denied. While not pleading himself out of court, plaintiff has also failed to properly plead himself into court. Plaintiff has specifically alleged that he is disabled because of an "adjustment disorder with anxiety and anxiety disorder." Plaintiff has not, however, alleged that he is disabled within the meaning of the ADA. In order to do this, plaintiff must allege that he is "substantially limited in one or more of his major life activities." 42 U.S.C. § 12102(2). The closest that plaintiff comes to this is stating that his "disability is work related in that the management of IDES' North Aurora office uses confrontation, harassment and hostility as its preferred methods of administration, which exacerbated Fedor's anxiety related disorders and symptoms." Although plaintiff contends that the IDES aggravated his symptoms, he never states that his impairment substantially limits a major life activity such as working, which he must do to plead disability discrimination under the ADA. Accordingly, on its own motion, the court dismisses plaintiff's complaint without prejudice. III. CLAIMS AGAINST PLAINTIFF'S SUPERVISORS Respondents have also moved to dismiss Counts VI and V against Caruso and *894 Seiler because they are not "employers" within the ADA. Employer is defined by the EEOC as, "a person engaged in an industry affecting commerce who has 15 or more employees, and any agent of such persons." 29 C.F.R. § 1630.2(e)(1). The term "agent" was used to impose respondeat superior liability upon employers for their agents' actions. U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995). Individual liability, however, was never intended. Id. Therefore, individuals who do not otherwise meet the "employer" definition are not liable under the ADA. Id. at 1282. Caruso and Seiler, as supervisors, do not meet the definition of "employer." Thus, their motion to dismiss with prejudice is granted. IV. RETALIATION Respondents have moved to dismiss plaintiff's retaliation claim because plaintiff failed to establish a causal link between protected expression and an adverse employment action in his allegation. Plaintiff responds, however, that he has not alleged a separate claim of retaliation. Thus, respondents' motion to dismiss this count is denied as moot. CONCLUSION Respondents motion to dismiss Counts IV and V against Caruso and Seiler is granted with prejudice. Respondents' motion to dismiss plaintiff's retaliation claim is denied as moot. Counts I, II, and III are dismissed without prejudice. Plaintiff is granted leave to file an amended complaint consistent with this opinion on or before January 20, 1997; defendant shall respond to the amended complaint on or before February 10, 1997. The status set for December 31, 1996 is vacated, and the matter is set for a report on status on February 13, 1997, at 9:00 a.m., at which time the parties are directed to present a definitive discovery plan.

2013-10-30 06:32:42.83646+00

Bevilacqua

367 A.2d 711 (1977) Thomas J. BORROMEO v. PERSONNEL BOARD OF the TOWN OF BRISTOL. No. 75-38-M. P. Supreme Court of Rhode Island. January 7, 1977. Reargument Denied February 3, 1977. *712 Pasquale T. Annarummo, Warren, for petitioner. Emilio D. Iannuccillo, Bristol, for respondent. OPINION BEVILACQUA, Chief Justice. This case is before the court on a writ of certiorari to review the action of the Personnel Board of the Town of Bristol in refusing to grant the petitioner, Thomas J. Borromeo, a hearing pursuant to art. 12, secs. 1204 and 1205 of the Bristol Home Rule Charter on the ground that said board did not have jurisdiction. We agree. The facts in the instant case are not in dispute. Thomas J. Borromeo was appointed Building Inspector of the Town of Bristol on July 2, 1973. On December 2, 1974, Augustine J. Nunes, the new Town Administrator took office and on December 3, 1974, he orally informed the petitioner that his services were terminated. On December 6, 1974, the petitioner appealed in writing his firing by the Town Administrator and requested a hearing before the board pursuant to sec. 1205A of the Bristol Home Rule Charter and art. 10, sec. 4 of the Personnel Ordinance of the Town of Bristol. On January 21, 1975, the board held a hearing to determine whether petitioner came within the provisions of sec. 1205A of the charter and sec. 4 of the personnel ordinance. The next day the board issued a written statement denying petitioner a hearing on the ground that it did not have jurisdiction with regard to the position of building inspector. At issue in this case is the interpretation and effect of two sections of the charter, secs. 910 and 1204, and art. 2, sec. 1 of the personnel ordinance. The Bristol Home Rule Charter became effective July 1, 1971 (art. 14, sec. 1401). Article 9, sec. 910 of the charter provides: "There shall be inspectors appointed by the Town Administrator to perform the following functions: building inspection * * *. All such inspectors will serve during his pleasure." Article 12 of the charter creates a personnel system which is administered by the personnel board. Section 1204 of this article provides that all "paid, full time officials and employees of the Town" are covered by the personnel system, except several specifically enumerated categories of employees. The section makes no reference whatsoever to building inspectors appointed pursuant to sec. 910. Section 1205A provides that upon demotion, dismissal or suspension, employees covered by the personnel system are entitled to written notice and a hearing before the Personnel Board. The personnel ordinance, adopted June 2, 1968, and readopted November 1, 1972, pursuant to sec. 1204A of the charter, in art. 2, sec. 1 states that the provisions of the personnel system shall apply to "all positions in the Town", except certain enumerated categories of employees. Again, no reference is made to building inspectors. The petitioner contends that in view of the conflict between the charter provisions and art. 2, sec. 1 of the personnel ordinance, since the ordinance was readopted after the effective date of the charter, it was the last in time and should prevail. The petitioner also argues that the ordinance should be considered a special provision modifying the general provisions of the charter. *713 Finally, petitioner contends that since he is not specifically excluded from the provisions of secs. 1204 and 1205, he is a member of the personnel system of the town, notwithstanding the contrary language of sec. 910. I The petitioner's first contention that the ordinance being last in time should prevail over the charter provisions is without foundation. We have stated previously that ordinances are inferior in status and subordinate to the laws of the state; an ordinance that is inconsistent with a state law of general character and state-wide application is invalid. Wood v. Peckham, 80 R.I. 479, 482, 98 A.2d 669, 670 (1953). Similarly, town ordinances are subordinate to the provisions of the respective town charters. The provisions of a town charter are the organic law of the town with respect to municipal affairs. 56 Am.Jur.2d Municipal Corporations § 127 (1971). Since the state statutes and the state constitution constitute the organic law of the state and ordinances inconsistent therewith are invalid, it follows that ordinances that are inconsistent with provisions of the charter are illegal and inferior to the provisions of the charter. As a result the provisions of the personnel ordinance neither prevail over nor can they be considered a modification of the provisions of the charter. II With respect to petitioner's contention that since he is not specifically excluded under sec. 1204A of the charter, he is covered by the personnel system of the town and has a right to a hearing under sec. 1205, we must answer in the negative. Our rationale in supporting this conclusion turns upon the resolution of the inconsistent provisions of secs. 910 and 1204 of the charter. When a court is called upon to construe the provisions of a town charter, the rules of statutory construction apply. Angel v. Murray, 113 R.I. 482, 486, 322 A.2d 630, 633 (1974). The applicable law in this instance is the rule of statutory construction enunciated in G. L.1956 (1970 Reenactment) § 43-3-26 which states: "Wherever a general provision shall be in conflict with a special provision relating to the same or to a similar subject, the two (2) provisions shall be construed, if possible, so that effect may be given to both; and in such cases, if effect cannot be given to both, the special provision shall prevail and shall be construed as an exception to the general provision." Here, effect cannot be given to both provisions because the provision in sec. 910 that the building inspector shall serve at the pleasure of the town administrator is inconsistent with the provisions of secs. 1204 and 1205 which protect town employees from dismissal without cause. While both sections refer to employees, they are inconsistent as to the manner of dismissal. Therefore, § 43-3-26 mandates that the special provision prevail over the general provision. Section 910 specifically provides that building inspectors are to be appointed by the town administrator and to serve at his pleasure. This provision relates to a specific classification and therefore must be considered a special provision. Section 1204 in turn states that all paid, full-time officials and employees are covered by the personnel system unless specifically excluded by sec. 1204. This section applies in general to officials and employees of the town. Thus, applying the rule, we find that since secs. 1204 and 1205 are general provisions, they are subordinate to sec. 910 of the charter. As a result, the position of building inspector is excluded from the personnel system of the town of Bristol. The personnel board was correct in deciding *714 it did not have jurisdiction to grant the petitioner a hearing pursuant to secs. 1204 and 1205. The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified to this court are ordered returned to the respondent board with our decision endorsed thereon.

2013-10-30 06:32:42.888155+00

Goldberg

774 A.2d 820 (2001) Gregory SOLAS v. EMERGENCY HIRING COUNCIL OF THE STATE of Rhode Island et al. No. 99-68-APPEAL. Supreme Court of Rhode Island. June 14, 2001. *821 Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. Howard Merten, Kimberly A. Simpson, Providence, Michael W. Long, Attleboro, MA, for Plaintiff. Joseph S. Larisa, Jr., Harris Weiner, Erika Leigh Kruse, Chicago, IL, for Defendant. OPINION GOLDBERG, Justice. On June 17, 1997, the defendant, the Emergency Hiring Council (EHC or council), held a closed meeting to consider the hiring of a hearing officer for the State Building Commission, a hiring that it ultimately approved. The plaintiff, Gregory Solas (plaintiff or Solas), an advocate on behalf of the handicapped in Rhode Island, wished to be present for the meeting; however, he was informed that he could not attend because the meeting would be closed to the public. Shortly after filing a complaint alleging violations of G.L.1956 chapter 46 of title 42, the Open Meetings Act (act), Solas sought a temporary restraining order (TRO) to prevent the hiring of the hearing officer until the dispute concerning the applicability of the act to meetings conducted by the EHC was resolved. Before the hearing, the council voluntarily agreed to rescind the posting for the hearing officer position and follow the procedures set forth in the act for future meetings, although continuing to insist that the act was inapplicable to the EHC. On October 1, 1997, based on EHC's agreement to declare the June 17 meeting null and void, a consent order entered that denied plaintiff's motion for a TROpending resolution of Solas's suit and also provided that the EHC could rescind its open meeting policy upon forty-eight hours notice to plaintiff's counsel. Approximately one month later, the EHC provided plaintiff with one weeks notice of its next meeting — the meeting at which the hearing officer position again would be discussed. The plaintiff did not attend that meeting. Instead, plaintiff filed an amended complaint seeking a declaration *822 that the EHC was subject to and governed by the act. The parties filed cross-motions for summary judgment that were heard in Providence County Superior Court. The motion justice, in a written decision, denied the EHC's motion and granted the plaintiff's motion for summary judgment. Contrary to the EHC's assertion that it merely functioned as a fact-finder, the motion justice found that the EHC was a decision-making entity and that its decisions have a direct effect on public policy and that it is thus subject to the requirements of the act. The judgment entered on January 29, 1999, permanently enjoining the EHC from "failing to act in full and complete accordance with the [act]." The EHC filed a timely notice of appeal. On March 1, 1999, plaintiff filed a motion for the allowance of attorney's fees pursuant to § 42-46-8(d). After a hearing on the matter, the parties filed with this Court a joint motion to remand the case for a determination of the attorney's fees issue. The motion was granted and an order to that effect was entered on April 5, 1999. A written decision was issued by the Superior Court on January 28, 2000, granting plaintiff's request for attorney's fees and returning the case to this Court pursuant to this Court's order of April 5, 1999. On appeal, the EHC raised four issues. First, the council asserted for the first time before this Court the argument that the executive orders creating the EHC should be read in conjunction with G.L. 1956 § 35-3-1(a)(1),(5), a statute delineating the powers and duties of the state budget officer that,according to the EHC, renders it a fact-finding body created to assist the state budget officer, thereby precluding application of the act. Second, the EHC asserted that, based upon its voluntary recision of the action taken at the closed meeting, plaintiff no longer was an aggrieved person under the act, he lacked standing to pursue a declaratory judgment and that the council's voluntary adoption of the act rendered plaintiff's claim moot and non-justiciable. Lastly, the EHC asserted that retroactive application of § 42-46-8(d) permitting the award of attorney's fees was an error of law on the part of the hearing justice. We affirm the decisions of the trial justice in all respects. Discussion At the outset, we note that this Court consistently has held that it will not entertain post-judgment arguments that were not presented to the trial court. See State v. Clark, 754 A.2d 73, 77 (R.I.2000) (citing State v. Tempest, 651 A.2d 1198, 1216 (R.I.1995)); Rambone v. Town of Foster, 741 A.2d 283, 285 (R.I.1999) (mem.); State v. Gatone, 698 A.2d 230, 242 (R.I.1997); International Depository, Inc. v. State, 603 A.2d 1119, 1122 (R.I.1992). The EHC argued for the first time to this Court that it is not subject to the requirement of open meetings because it merely makes recommendations to the state budget officer concerning filling positions of state employment. This argument was not presented to the trial justice, and thus is not properly before this Court. See Nedder v. Rhode Island Hospital Trust National Bank, 459 A.2d 960, 962-63 (R.I.1983) (this Court considers only those issues properly presented to the trial court). We therefore refrain from addressing in this opinion the post-judgment arguments raised by the defendants. However, based on our decision today, it is clear that the function of the EHC is not merely to assist the state budget officer. Standing The EHC asserted that plaintiff lacked standing to bring this action because he *823 was not an "aggrieved person" under the act and had no standing to seek additional declaratory relief. Specifically, the council argued that when the disputed June 17, 1997 meeting was declared null and void and the EHC voluntarily agreed to comply with the act for all future meetings, Solas received his remedy, and thus no longer was an "aggrieved person" under the act. Although we commend the EHC for its voluntary compliance with the requirement for open meetings, we disagree with its argument relative to plaintiff's standing to maintain this suit. Section 42-46-8(a) grants standing to "[a]ny citizen * * * of the state who is aggrieved as a result of violations of the provisions of this chapter * * *." Under this broad definition, plaintiff had statutory standing to raise the issue of potential future violations of the act and to pursue the question of the applicability of the act to the EHC. Further, as noted by the trial justice, the act does not require individuals to possess a personal stake or interest in the substance of the meeting to assert a right to attend a meeting of a public body. Rather, plaintiff, a citizen of this state, was barred from a meeting that he had a statutory right to attend. The fact that the EHC declared the June 17, 1997 meeting null and void and agreed to open all future meetings did not deprive Solas of his standing to seek a declaratory judgment, particularly when the EHC explicitly reserved to itself the right to revoke its voluntary compliance with open meeting procedures. According to the terms of the consent order, the council again could bar Solas from a meeting of the EHC upon forty-eight hours notice. We therefore conclude that plaintiff had standing to bring this action pursuant to § 42-46-8(a). Mootness It is well established that this Court "will review `questions of extreme public importance, which are capable of repetition but which evade review.'" Whitehouse v. Davis, 774 A.2d 816, 818 (R.I.2001) (quoting Witt v. Moran, 572 A.2d 261, 264 (R.I.1990)). In addressing the issue of mootness, the EHC, as it did on the issue of standing, argued that any alleged violation of the act had been remedied because of the recision of the June 17, 1997 meeting and its voluntary compliance with act procedures. Although we agree that recision of the June 17 meeting remedied the open meetings violation, we also conclude that the voluntary nature of that recision renders this violation capable of repetition, yet evading review. It is clear that by voluntarily adopting a policy of open meeting compliance, the EHC maintains sole control of whether its meetings will be opened to the public. Absent a determination of whether the EHC is subject to the act, the council can close future meetings until challenged and then merely agree to comply with the act to avoid an adverse judgment. Thus, barring a determination by this Court, nothing would prevent the council from revoking this policy in the future. Accordingly, we conclude that this action is capable of repetition thereby defeating a claim of mootness. The Emergency Hiring Council Having determined the issues of standing and mootness, we shall proceed to address whether the act is applicable to the EHC and the issue of attorney's fees. The EHC was created by executive order on January 6, 1995, to manage and control the state's hiring practices and its fiscal resources. Pursuant to this directive, no new positions, vacant positions, or promotions could be created or filled without authorization from the EHC. In creating *824 the EHC, the Governor stated that the intent of the order was to insure that "no person or persons other than the Council shall have the authority to make any determinations in this regard." A second executive order issued on September 19, 1995, reestablished the EHC's duties and further required the EHC to, "use its experience to suggest to the Governor reforms to the State personnel system [in order to] streamline hiring processes, consolidate redundant or unnecessary positions within government and generally improve the quality and delivery of the personnel system." The EHC was required to meet at least biweekly and was composed of the director of the Department of Administration or a designee, a department director appointed by the Governor (directors are appointed for a three-month period and may be rotated or reappointed), the governor's executive counsel or a designee, the governor's cabinet secretary, and the special assistant to the chief of staff for boards and commissions. The record demonstrates that the EHC combines senior executive branch staff members with employees for assistance with the functions and objectives set forth in both executive orders to determine whether creating a new position in state government or filling a vacancy is absolutely necessary. Upon a reading of both executive orders, it is clear that the council has been granted significant influence and veto power over creating positions in state government, promoting employees to existing positions and filling existing vacancies. Thus, at the very least, the EHC functions in an influential advisory capacity with veto power over a subject of significant public interest. The Open Meetings Act "It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). "Moreover, when we examine an unambiguous statute, `there is no room for statutory construction and we mustapply the statute as written.'" State v. DiCicco, 707 A.2d 251, 253 (R.I.1998) (quoting In re Denisewich, 643 A.2d 1194, 1197 (R.I.1994)). After applying these principles to chapter 46 of title 42, Open Meetings, we are of the opinion that the EHC is a public body as defined by § 42-46-2(c), and as such, is subject to the procedures and requirements set forth in the act. The state's open meetings statute was enacted to insure that "public business be performed in an open and public manner, and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy." Section 42-46-1. As noted by the trial justice, other jurisdictions have enacted open meeting or "sunshine" laws for the public interest to protect the public from "closed door" politics; and, as such, these enactments should be broadly construed and interpreted in the light most favorable to public access to achieve their remedial and protective purpose. See Wood v. Marston, 442 So. 2d 934, 938 (Fla.1983); Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260, 263 (Fla.1973). To further this legislative and public policy, the act requires that "[e]very meeting of all public bodies * * * be open to the public * * *." Section 42-46-3. Although we agree that the act should be construed broadly and interpreted in a light favorable to public access, we are of the opinion *825 that broad construction and interpretation are unnecessary in this case because, as written, the act's language clearly encompasses meetings held by the EHC. For purposes of the act, a "public body" includes "any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government." Section 42-46-2(c). (Emphasis added.) Further, a "meeting" is defined as "the convening of a public body to discuss and/or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power." Section 42-46-2(a). (Emphasis added.) A literal reading ofthe act demonstrates that all meetings to discuss or act upon matters over which the council has supervision, control, or advisory power, are required to be open to the public. The EHC asserted that it is not a decision-making entity with the legal authority to make decisions, and, thus, it is not a "public body" subject to the provisions of the act. Although we disagree with this characterization, it is of no moment to this appeal because application of the act is not limited to "public bodies" that "meet" to render decisions. It is undisputed that the EHC is composed of a group of high level state officials that convenes to discuss and/or act upon matters of great interest to the citizens of this state. In addition, our reading of the executive orders creating the council persuades us that the EHC possesses significant supervisory and executive veto power over creating or filling state employment positions. At the very least the council functions in an advisory capacity in state hirings. Whether supervisory or advisory, both functions are regulated by the act. As the plain language of the statute provides, a council's exercise of advisory power is enough to bring it under the act's umbrella. Accordingly, we conclude that the EHC is a public body subject to the requirements of the act. Attorney's Fees Section 42-46-8(d) was amended in 1998 to provide for a mandatory award of reasonable attorney's fees unless such an award would be unjust.[1] Because plaintiff filed this action in September1997, the EHC argued that the trial justice's award of attorney's fees should be reversed because it constituted a retroactive application of the act. In addition, the EHC argues that to uphold an award of attorney's fees in this case we must overturn our decision in Newport Yacht Management, Inc. v. Clark, 567 A.2d 364 (R.I.1989). We disagree on both counts. It is well settled that courts should apply the law in effect at the time a decision is rendered even though that law was enacted after the events that gave rise to the suit. Landgraf v. USI Film Products, 511 U.S. 244, 249, 114 S. Ct. 1483, 1488, 128 L. Ed. 2d 229, 242 (1994) (citing Bradley v. *826 School Bd. of Richmond, 416 U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476, 488 (1974)). Accordingly, this Court has held that "a trial court should apply the law in effect at the time it makes its decision if such application would implement the legislative intent." Dunbar v. Tammelleo, 673 A.2d 1063, 1067 (R.I.1996). Similarly, this Court has traditionally applied the law in effect at the time we consider an appeal. Id. In the case before us, the amendment providing for the award of reasonable attorney's fees was enacted after Solas filed this action; however, it became effective before judgment was entered. Therefore, we are satisfied that the trial justice properly applied § 42-46-8(d) to the facts of this case. Moreover, under our decision in Dunbar, even if § 42-46-8(d) had not been effective until after the trial court rendered its decision, provided plaintiff requested an award below, this Court could apply the provision on appeal. Dunbar, 673 A.2d at 1067. Further, Newport Yacht, the case relied upon by the EHC is distinguishable from the case now before us. In Newport Yacht, this Court was asked to consider the application of G.L.1956 chapter 92 of title 42, the Equal Access to Justice For Small Businesses and Individual's Act (Justice Act) to events that occurred before it was enacted. While recognizing that a remedial statute could be applied retroactively, we held that the Justice Act was a substantive statute creating substantive rights and, therefore, could be applied only prospectively. Here, the Open Meetings Act, enacted in 1976, was an existing substantive right available to the citizens of this state at the time this action was filed. Section 42-46-8(d) merely added an additional remedial measure to that already existing substantive right. In addition, this remedial measure was clearly in effect and applicable at the time the decision was rendered in this case. Thus, we are of the opinion that the award of attorney's fees in this case was appropriate. Conclusion Based upon the foregoing, we hold that the EHC is subject to the requirements of the Open Meetings Act. In addition, we conclude that the attorney's fees provision is an additional remedial measure to a previously existing substantive right and was properly applied in this case. Lastly, although this Court recognizes and acknowledges the importance of executive prerogatives necessary to manage the complexities of state government, and accords great deference to the Governor's economic and policy initiatives, we are not persuaded that this decision will adversely impact upon the authority and privilege of the state's chief executive. For the reasons stated herein, the defendant's appeal is denied and dismissed. The judgment appealed from is affirmed, and the papers in this case are remanded to the Superior Court. NOTES [1] General Laws 1956 § 42-46-8, as amended by P.L.1998, ch. 379, § 1 (effective July 20, 1998) provides in pertinent part: "Remedies available to aggrieved persons or entities. — * * * (d) The court shall award reasonable attorney fees and costs to a prevailing plaintiff, other than the attorney general, except where special circumstances would render such an award unjust. The court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of this chapter. In addition, the court may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members found to have committed a willful or knowing violation of this chapter."

2013-10-30 06:32:42.930397+00

Holmes

955 F. Supp. 1351 (1996) OSTEOPATHIC HOSPITAL FOUNDERS ASSOCIATION, INC., d/b/a Tulsa Regional Medical Center, Plaintiff, v. Garth L. SPLINTER, M.D., Chief Executive Officer and Charles Ed McFall, Chairman of Oklahoma Health Care Authority, Defendants. No. 93-C-869-H. United States District Court, N.D. Oklahoma. November 1, 1996. *1352 Kenneth Crump, Jr., James C. Shaw, Laura L. Cross, Miller Dollarhide Dawson, Tulsa, OK, for plaintiff. Howard J. Pallotta, General Counsel, Oklahoma City, OK, for defendants. ORDER HOLMES, District Judge. This matter comes before the Court on a motion for summary judgment by Defendants Garth L. Splinter, M.D. and Charles Ed McFall (Docket # 67) and on a motion to assess security bond or, in the alternative, to modify temporary injunctive order by Defendants (Docket # 74). In 1993, the Oklahoma Department of Human Services ("DHS"), the predecessor to Oklahoma Health Care Authority ("OHCA"), claimed that it had overpaid Tulsa Regional Medical Center ("TRMC") under the Oklahoma State Medicaid Program (the "Oklahoma Plan") for services provided by TRMC to indigent patients. DHS alleged that the overpayment occurred because TRMC had incorrectly reported the number of Medicaid patient days during 1991, and that, based upon that information, DHS had deemed TRMC to qualify for disproportionate share payments ("DSH" payments). DSH payments are made to hospitals that either serve a disproportionately high number of Medicaid clients or provide a disproportionately high amount of charity care. DHS contended that TRMC was paid, from July 1, 1992 through May 27, 1993, the highest amount of disproportionate share adjustment possible because it was deemed qualified under one of two formulas that provided for such payment adjustments. DHS alleged that if TRMC had not reported the patient days as it had, it would only have received payments under the formula providing for lesser adjustments. DHS sought to recoup the alleged overpayments through offsets against future payments owed to TRMC for providing services to indigent patients. In response, TRMC filed this lawsuit on September 24, 1993, seeking injunctive relief to prevent these offsets. In its amended complaint, TRMC asserts that Defendants' determination of the reimbursement rate due Plaintiff under the Oklahoma Plan violates the Medicaid Act and that it is entitled to a declaratory judgment that TRMC qualified for DSH adjustments and a permanent injunction prohibiting Defendants from offsetting future payments or attempting to enforce the Oklahoma Plan. On December 1, 1993, the Court held a hearing in which evidence was presented regarding the Plaintiff's motion for a preliminary injunction. The parties agreed to maintain the status quo pending the decision. By order dated August 23, 1994, the Court entered its findings of fact and conclusions of law, granting TRMC's request for a preliminary injunction. The Court found that Plaintiff sufficiently established that the proposed offsets would irreparably harm it and that the injury to its interests would outweigh whatever damage the injunction might cause Defendants. The Court further determined that the issuance of an injunction was not adverse to the public interest and that Plaintiff had shown some probability of success on the merits.[1] The instant summary judgment motion, if granted, would conclude this litigation. I. Summary judgment is appropriate where "there is no genuine issue as to any material *1353 fact," Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Windon Third Oil & Gas Drilling Partnership v. Federal Deposit Insurance Corp., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S. Ct. 1605, 94 L. Ed. 2d 791 (1987), and "the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c). In Celotex, the Supreme Court stated: [t]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. 477 U.S. at 322, 106 S. Ct. at 2552. A party opposing a properly supported motion for summary judgment must offer evidence, in admissible form, of specific facts, Fed.R.Civ.P. 56(e), sufficient to raise a "genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) ("the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment"). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510. Summary judgment is only appropriate if "there is [not] sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 250, 106 S. Ct. at 2511. The Supreme Court stated: "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S. Ct. at 2512. Thus, to defeat a summary judgment motion, the nonmovant "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, 585-86, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (citations omitted)). In essence, the inquiry for the Court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251, 106 S. Ct. at 2511. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991). II. The Court has determined that the following facts are uncontroverted for purposes of resolving the instant motion for summary judgment. 1. TRMC is an Oklahoma non-profit corporation providing health care services in Tulsa, in the Northern District of Oklahoma, to patients eligible to receive Medicaid reimbursement for those services pursuant to Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), commonly known as the Medicaid Act (the "Act"). 2. The Defendants, Dr. Garth L. Splinter and Charles Ed McFall (the former Chairman of the OHCA Board), are state officials responsible for the administration of the Act. As part of the administration of the Act, the Defendants are responsible for carrying out the provisions of the Oklahoma State Title XIX Medicaid Plan (the "Oklahoma Plan"). 3. The Oklahoma Plan is a cooperative federal-state program established pursuant to the Act for the purpose of enabling the state of Oklahoma to furnish medical assistance to aged, blind, or disabled individuals, or members of families with dependent children, whose income and resources are insufficient to meet the costs of necessary medical services. 4. The federal government and Oklahoma share the costs of such aid. Approximately 70% of the cost of each dollar is borne by the federal government and 30% is borne by Oklahoma. *1354 5. Under the Oklahoma Plan, DHS makes payment adjustments to provide additional payments to certain hospitals that service a disproportionate number of low-income patients. 6. TRMC is a Disproportionate Share Hospital and has received Disproportionate Share Adjustments from DHS. 7. On October 1, 1990, the State Medicaid Agency established a new methodology of payment for hospitals in Oklahoma. This new methodology was used to pay the Plaintiff hospital during the years 1992 and 1993. The reimbursement methodology is set out in the OHCA's promulgated rules found at OAC (Oklahoma Administrative Code) 317:3-5-47. 8. The reimbursement methodology used since October 1, 1990 by DHS and OHCA has four major components which are additive components used to set prospective per diem rates.[2] These components are the level of care per diem, plus the fixed capital per diem, a direct medical education per diem, and a disproportionate share add-on. With respect to the level of care per diem, there are eight levels of care which are reimbursed: routine care, intensive care, psychiatric care, rehabilitation care, surgical care, maternity care, neonatal intensive care, and burn care. 9. The reimbursement methodology was established using the aggregate data from all hospitals in Oklahoma. The aggregate data included all hospital cost reports from 1989, paid claims history from all hospitals in 1989, and a capital data base. The use of aggregate data from the Oklahoma Hospital industry allowed the Medicaid agency to establish rates that, in the aggregate, covered costs at the median in 1991 of 96.3% of all costs. The use of aggregate data from the Oklahoma hospital industry allowed the Medicaid agency to establish rates that, in the aggregate, covered costs at the mean in 1991 of 101.1% of all costs. 10. Despite the system's design in the aggregate, each Oklahoma hospital's rate, like the Plaintiff's, is set individually on the basis of its own cost report in the base year. 11. Disproportionate share payments are payments made to eligible hospitals in Oklahoma which serve either an unusually high amount of Medicaid patients or many low-income patients. These payments are made in addition to the "base rate." As of May, 1993, of the approximately 130 hospitals participating in the Oklahoma Medicaid program, only 29 Oklahoma hospitals receive disproportionate share payments. 12. Under the Oklahoma Plan, there are two tests under which a hospital qualifies to receive Disproportionate Share Adjustments: (a) if its Medicaid inpatient utilization rate is at least one standard deviation above the mean Medicaid inpatient utilization rate for hospitals receiving Medicaid payments in the state (the "Medicaid Test") or (b) if the hospital's low-income utilization rate exceeds 25% (the "Low-Income Test"). See also 42 U.S.C. § 1396r-4(b)(1). 13. The Oklahoma Plan provides for different minimum Disproportionate Share Adjustments depending upon whether the hospital qualifies as a Disproportionate Share Hospital under the Medicaid Test or the Low-Income Test. Hospitals qualifying under the Low-Income Test receive a smaller minimum adjustment. 14. As of May, 1993, of the 29 hospitals receiving disproportionate share payments, 20 hospitals were eligible for such payments under the Medicaid Inpatient Utilization test and the remaining 9 were eligible under the Low-Income Utilization test. 15. DHS examines a hospital's eligibility under the Medicaid Utilization test by reviewing a hospital's Medicare cost report in the spring of the year. Once eligibility is established, an additional payment is made to the hospital. Under the Oklahoma Medicaid State Plan effective July 1, 1992 (or state fiscal year 1993), these payment adjustments varied depending on which eligibility test a hospital was qualified to use. *1355 16. On July 1, 1992, the payment adjustment for a DSH hospital eligible under the Medicaid Inpatient Utilization Test varied according to bed size, location of the hospital (urban/rural), and proportion of Medicaid services utilized when compared to other Oklahoma hospitals. 17. On July 1, 1992, the payment adjustment for a DSH hospital eligible under the Low-Income Utilization Test began with a 4% add on with a .25% increase for every additional 10% increase in low income utilization. The payment adjustment under the Low-Income Utilization Test also increased as the hospital provided more services to low income persons. 18. During 1992 and 1993, the State's payment adjustment for hospitals which qualified under the Medicaid Inpatient Utilization Test was a larger payment adjustment than for those hospitals who qualified under the Low-Income Utilization Test. 19. In early 1992, the Plaintiff hospital filed a Medicare cost report. Based upon TRMC's filed Medicare cost report, DHS made TRMC eligible under the Medicaid Inpatient Utilization test on July 1, 1992. Based upon the cost report, TRMC showed that they had served 35,964 patients out of 99,000 total patients served. This gave TRMC a Medicaid percentage of approximately 36%. One standard deviation above the mean for state fiscal year 1993 (beginning July 1, 1992) was 35%. Based upon this cost reporting information, DHS gave TRMC a disproportionate share payment as a Medicaid Utilization hospital for an entire year. 20. TRMC received a 24.92% add-on to every payment they received from DHS during the year from July 1, 1992 through June 30, 1993. 21. The 12,933 patient days included in the 1991 Medicare Cost Report were all attributable to low-income patients. Of those 12,933 days, 4,612 were attributable to patients considered to be Medicaid-eligible. 22. When the 12,933 days were included on the Medicare Cost Report, TRMC was not aware how it would be used to determine TRMC's disproportionate share status. TRMC included those days on the Medicare Cost Report because it interpreted the report as seeking the number of patient days paid by the state for care of low-income patients. 23. Based upon a survey sent out by DHS, TRMC later reported only 23,031 Medicaid days of 93,236 total days. The survey was received in January, 1993 — halfway through the state fiscal year. TRMC interpreted the survey to be seeking information regarding numbers of paid or provided and allowed Medicaid days and that specific information was provided. Therefore, some of the low-income patient days previously reported under the Medicare Cost Report were not reported there. Based upon the survey results, Defendants contend that the earlier cost report filed by Plaintiff incorrectly aggregated Medicaid patient days with Oklahoma Department of Health patient days. Plaintiff, however, denies any intentional misstatement in the incorrect figures. Defendants determined that Plaintiff was no longer eligible under the Medicaid inpatient utilization test. 24. Under the appeal rules for hospital reimbursement, there are very complex requirements for Request for Exception, which is a specific standard that must be met by the hospital making the request. A hospital must show that the Medicaid rates paid did not allow the hospital to meet its marginal costs. 25. Under the appeal rules for hospital reimbursement, a rate appeal must be filed by the hospital within 30 days of receiving notification of its yearly rate. Since the inception of the new hospital reimbursement methodology in 1990, there have been 10 appeals. Of these 10 hospital appeals, two appeals were granted, six appeals were denied, and two hospitals failed to prosecute their rate appeal. 26. By letter dated May 27, 1993, Mr. Haddock of the Medicaid agency, advised Mr. Steichen, Plaintiff's Reimbursement Manager, that Plaintiff was not eligible for DSH and should return $1,923,246.11 in DSH that it had erroneously received. 27. On June 23, 1993, TRMC appealed the Medicaid agency's determination of a *1356 DSH overpayment and requested a sixty day extension of the appeal. 28. On August 26, 1993, the State found that the hospital did qualify under the low-income test. The payment rate under this second test was substantially different under the Oklahoma Plan. Therefore, the State concluded that an overpayment still existed in the amount of $1,677,000.00. 29. Defendants contend that TRMC qualifies as a Disproportionate Share Hospital under the Low Income Test but not under the Medicaid Test and that, consequently, TRMC is entitled only to a payment adjustment of 4% effective July 1, 1992 and 2% effective January 1, 1993 (at which time the Oklahoma Plan was amended to reduce the Disproportionate Share Adjustment percentages) under the Low Income Test, instead of 24.92% and 12.46% respectively under the Medicaid Test. 30. On August 26, 1993, Defendants advised TRMC that, on September 26, 1993, Defendants would begin offsetting future payments to TRMC in order to recover the amounts allegedly overpaid. To date, approximately $320,000.00 owed for services actually provided by TRMC has been withheld by Defendants. 31. Defendants have advised Plaintiff that Disproportionate Share Adjustment percentages established under the Oklahoma Plan may not be administratively appealed. 32. Plaintiffs contend that the payments by Defendants to Plaintiff under the Oklahoma Plan, and the proposed offsets, violate the Boren Amendment to the Medicaid Act, 42 U.S.C. § 1396a(a)(13)(A), which mandates a state plan setting payment rates "which the State finds, and makes assurances to the Secretary [of Health and Human Services], are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. ..." The specific violations alleged in the amended complaint are that the Oklahoma Plan does not provide reimbursement rates adequate to permit TRMC to meet its reasonable costs, that the Plan discriminates against TRMC which qualifies under the Low-Income Test but not the Medicaid Test, and that the amendments to the Oklahoma Plan reducing payment percentages were not supported by necessary findings and were promulgated arbitrarily. Defendants contend that the treatment of TRMC under the Oklahoma Plan complies with the Act. 33. TRMC contends that it lost approximately $660,000.00 from providing services to Medicaid patients during the time DHS alleges TRMC was overpaid. Defendants note that generally accepted accounting principles were not used in this determination. 34. The budget of DHS for the Oklahoma Plan is in excess of $1 billion dollars. Total revenues for TRMC in 1992 were approximately $137 million dollars. However, less than 10% of this amount was from DHS payments. 35. Disproportionate Share payments are made in addition to the "base rate" paid to hospitals under Medicaid. III. Plaintiff alleges that, pursuant to 42 U.S.C. § 1983, Defendants have violated both the substantive and the procedural components of the Boren Amendment, see 42 U.S.C. § 1396a(a)(13)(A).[3] The substantive *1357 component of the Boren Amendment gives health care providers an enforceable right "to the adoption of reimbursement rates that are reasonable and adequate to meet the costs of an efficiently and economically operated facility that provides care to Medicaid patients." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509-10, 110 S. Ct. 2510, 2517, 110 L. Ed. 2d 455 (1990). In its response to Defendants' motion, Plaintiff states that "TRMC is alleging OHCA is substantively in violation of the Boren Amendment because of a systemic pattern of inadequate reimbursement and a lack of adequate findings under the Oklahoma Plan." Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment ("Response") at 22. Defendants assert that Plaintiff has not pled the existence of a systemic problem; rather, the allegations focus solely on the adequacy of the reimbursements made to Plaintiff. A careful review of the third amended complaint makes clear that the gravamen of Plaintiff's action is the allegedly inadequate reimbursement rate applied to TRMC under the Oklahoma Plan. The third amended complaint asserts three claims for relief. Plaintiff's first claim is that "the Oklahoma Plan does not comply with the Act in that it does not provide for reimbursement rates adequate to compensate TRMC and allow it to meet its reasonable costs." As relief, Plaintiff requests that "the Court declare that the Oklahoma Plan was, at the time of DHS's alleged overpayments, and is now in violation of the Act, and that Defendants be required to promulgate a new state plan providing reimbursement rates and Disproportionate Share Adjustment percentages that comply with the Act." TRMC further requests "that Defendants be required, in the interim, to reimburse TRMC at rates adequate to meet its reasonable costs." Plaintiff's second claim is that "TRMC is entitled to a declaration that it qualified for Disproportionate Share Payments under the Medicaid Low-Income Utilization Test and that, consequently, it was not overpaid." Accordingly, TRMC requests a declaratory judgment "that it qualified for Disproportionate Share Payments under the Medicaid Low-Income Utilization test pursuant to 42 U.S.C. § 1396r-4 and that it was not overpaid by DHS." Plaintiff's third claim for relief requests that "the Court permanently enjoin defendants from offsetting future payments to TRMC to recover the alleged overpayments or from otherwise attempting to enforce the unlawful Oklahoma Plan." Notwithstanding these clear statements, Plaintiff's response brief to Defendants' motion for summary judgment now asserts that: TRMC is challenging the methodology the State used in determining its Disproportionate Share Payment Scheme and Base Rates, which is a systemic challenge alleging the State violated federal statutes in developing its reimbursement system and that, in doing so, it had an adverse effect on many hospitals operating under the Oklahoma Plan. The Court, however, declines to accept this characterization of Plaintiff's claims. Rather, the actual allegations contained in the third amended complaint should control the instant motions. The Court finds that the third amended complaint does not allege a systemic problem, but instead claims that the reimbursements made to Plaintiff under the Oklahoma Plan were incorrect. IV. Defendants' first argument is that this Court should decline to rule on Plaintiff's Boren Amendment claims based upon the abstention doctrine established by the United States Supreme Court in Burford v. Sun Oil, 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). The Tenth Circuit has stated: It is recognized by all courts that: "Abstention from the exercise of federal jurisdiction is the exception, not the rule. `The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court *1358 would clearly serve an important countervailing interest.'" Grimes v. Crown Life Ins. Co., 857 F.2d 699, 703 (10th Cir.1988), cert. denied, 489 U.S. 1096, 109 S. Ct. 1568, 103 L. Ed. 2d 934 (1989) (quoting Moses H. Cone Hosp. v. Mercury Const. Corp., 460 U.S. 1, 14, 103 S. Ct. 927, 936, 74 L. Ed. 2d 765 (1983)). In Burford, the Supreme Court held abstention to be appropriate where questions of state law are unclear and there is a need for centralized state administration of the issue in question. Burford, 319 U.S. at 327-28, 63 S. Ct. at 1104; see also Erwin Chemerinsky, Federal Jurisdiction 703 (1994). The Supreme Court has characterized Burford abstention as proper where: there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar.... In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S. Ct. 1236, 1244-45, 47 L. Ed. 2d 483 (1976). The Supreme Court has further held that Burford abstention is appropriate only where federal court jurisdiction over "the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern," New Orleans Pub. Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361, 109 S. Ct. 2506, 2514, 105 L. Ed. 2d 298 (1989), or where there is a danger that federal court review "would disrupt the State's attempt to ensure uniformity in the treatment of an essentially local problem." Id. at 362, 109 S. Ct. at 2515. Thus, a court should abstain under Burford where the administrative system in question has a primary purpose of achieving uniformity within a state and there is a danger that federal court review would undermine the desired uniformity. See Chemerinsky at 706. The Tenth Circuit has not addressed the issue of Burford abstention in the context of state administered Medicaid reimbursement plans. In Grimes, the Tenth Circuit held that the district court should have abstained under Burford in a case involving the rights of an insolvent insurer under the McCarran-Ferguson Act, 15 U.S.C. § 1011, and the Oklahoma statutory scheme for resolving insurer insolvency. Grimes, 857 F.2d at 700-03.[4] The Court stated that the formulation of "comprehensive schemes for insurance regulation and liquidation" by the states do not deprive the federal courts of jurisdiction as a general matter. Id. at 704. Following Burford and its progeny, however, the Court provided a four factor analysis to determine whether abstention would be warranted in the exceptional case: (1) whether the suit is based on a cause of action which is exclusively federal ...; (2) whether the suit requires the court to determine issues which are directly relevant to the liquidation proceeding or state policy in the regulation of the insurance industry ...; (3) whether state procedures indicate a desire to create special state forums to regulate and adjudicate these issues ...; and, (4) whether difficult or unusual state laws are at issue. Id. at 704-05 (citations omitted). Applying these four factors, the Tenth Circuit concluded that Burford abstention was warranted and reversed and remanded the case with *1359 instructions that it be remanded to the District Court of Oklahoma County. Id. at 707.[5] In Bethphage Lutheran Serv., Inc. v. Weicker, the Second Circuit undertook a similar analysis in an action seeking to enjoin Connecticut officials' proposed payments under the Medicaid Act. 965 F.2d 1239, 1242 (2d Cir.1992). In that case, the district court below looked to three factors in determining that the instant case was appropriate for Burford abstention ...: "the degree of specificity of the state regulatory scheme, the necessity of discretionary interpretation of state statutes, and whether the subject matter of the litigation is traditionally one of state concern. ..." Id. at 1243 (quoting Bethphage Lutheran Serv., Inc. v. Weicker, 777 F. Supp. 1093, 1098 (D.Conn.1991)). In assessing the degree of specificity of the state regulatory scheme, the district court in Bethphage took note of "the eighteen regulatory sections governing, substantively and procedurally, the determination of rates and the inclusion of particular costs." Bethphage, 965 F.2d at 1243. The court concluded that the state Medicaid regulations provided a "comprehensive statutory framework to formulate policy and decide cases." Id. The second factor considered by the district court was whether the decision would require interpretation of "broad terms" in the state statutes "that properly should be interpreted by a state agency and the experts in a particular filed." Id. The district court held that "the statutory framework at issue necessarily invokes the expertise and best judgment of the Commissioner of Mental Retardation and does not lend itself to consistent judicial interpretation." Id. The court noted that "reasonable persons can disagree as to what constitutes reasonable payments for necessary services under the Waiver Act and that a federal court might establish reimbursement rates either above or below those determined in state court." Id. The court reasoned that the potential for inconsistency inherent in such a situation "`would create a divisive reimbursement rate in which providers with substantially the same needs are reimbursed at different rates, encouraging plaintiffs to forum shop.'" Id. at 1243-44 (quoting Bethphage Lutheran Serv., Inc. v. Weicker, 777 F. Supp. 1093, 1100 (D.Conn.1991)).[6] As a result, the district court held that "`proper respect for the expertise of state officials and the expeditious and evenhanded administration of [the] state program[] counsels restraint.'" Bethphage, 777 F.Supp. at 1100 (quoting Levy v. Lewis, 635 F.2d 960, 964 (2d Cir.1980)) (alterations in original). To maintain a consistent interpretation of the state's plan, the court in Bethphage concluded that Burford abstention was appropriate. Applying the third factor, the district court in Bethphage "found that abstention under Burford was appropriate because the subject matter ... — reimbursement rates under the Medicaid Act — is an area of legitimate state interest." Bethphage, 965 F.2d at 1244. The Medicaid Act requires states to create administrative frameworks that establish the methods and procedures to be used for procurement of and payment for care and services. On appeal, the Second Circuit stated, "Congress has recognized that the establishment and review of reimbursement rates is a legitimate state concern." Id. Finally, the district court in Bethphage "considered the availability of a state remedy." Id. The court found that an adequate state remedy did exist and that the plaintiff was able "to challenge the service rates set ... by the Commissioner of Mental Retardation" through an administrative procedure specified in the Regulations of Connecticut State Agencies. Id. Under the Connecticut *1360 Administrative Procedures Act, the plaintiff could then appeal the administrative decision to State Superior Court and, ultimately, to the State Supreme Court. In reviewing the decision of the district court, the Second Circuit stated that the only potentially relevant factor not considered below was "that in Burford Texas had created a centralized system of judicial review of commission orders, which `permit[ted] the state courts, like the Railroad Commission itself to acquire a specialized knowledge' of the regulations and industry. ..." Id. at 1245 (quoting Burford, 319 U.S. at 327, 63 S. Ct. at 1104) (alteration in original). Under the facts of Bethphage, the Second Circuit found "no such consolidation of judicial review," but held that "this factor has never been thought to be indispensable to Burford abstention." Id.[7] The court concluded that the district court correctly abstained under the Burford doctrine. Id. at 1248. In the instant case, Defendants argue that abstention is appropriate under the Burford doctrine. The Court concludes that under the facts present here, the issue of abstention is controlled by the decisions in Grimes and Bethphage described above. Accordingly, the following factors should guide the Court's decision: (1) whether the suit is based on a cause of action that is exclusively federal in nature, (2) whether the suit requires the court to determine issues that are directly relevant to the rate appeal proceeding or Oklahoma policy in the administration of the Oklahoma Plan, (3) whether the Oklahoma Medicaid State Plan indicates a desire to create special state forums to regulate and adjudicate these issues, and (4) whether difficult or unusual state laws are at issue. See Grimes, 857 F.2d at 704-05; see also Bethphage, 965 F.2d at 1243-45. Applying these four factors, it is well settled that jurisdiction for claims brought under section 1983 is not exclusive in federal court, since such claims may be pursued in state court. See, e.g., Robert K. Bell Enterprises, Inc., v. Tulsa County Fairgrounds Trust Auth., 695 P.2d 513, 517 (Okla.1985). Thus, Plaintiff's suit, seeking injunctive relief to prevent DHS's offset against future payments, is not based on an exclusively federal cause of action. Plaintiff's third amended complaint is brought pursuant to 42 U.S.C. § 1983 "to enforce civil rights conferred under provisions of the Medicaid Act...." Third Amended Complaint at ¶ 5. Moreover, as discussed above, Plaintiff's claims in the instant case are not based on a systemic defect, but rather arise out of allegedly inadequate reimbursement payments to one hospital, TRMC. Cf. Virginia Hosp. Ass'n v. Baliles, 868 F.2d 653, 657 (4th Cir.1989) (distinguishing the case at hand from another case where "[t]he substantive issue ... is not, as here, the propriety of reimbursement rates generally, but whether providers are entitled to a certain type of reimbursement"). Thus, there is nothing "exclusively federal" about this cause of action that would counsel against abstention. Secondly, the Court finds that to grant the relief requested by Plaintiff would require the Court to determine issues directly relevant to the general administration of the Oklahoma Plan and the rate appeal process. Oklahoma, in its administration of the Medicaid program, has a very complex system of reimbursement. As part of this system, Oklahoma has a fairly extensive appeals process in place, as required by federal law. See 42 C.F.R. § 447.253(c) (requiring the state to have an appeals process). An appeal may be taken from the administrative proceedings under the provisions of the Oklahoma Administrative Procedures Act ("APA"). Okla. Stat. tit. 75, § 250 et seq. Section 318(B) of the Oklahoma APA provides for judicial review by either by "appellate proceedings in the Supreme Court of Oklahoma" or by filing a petition in the state district court. This appeals process allows individual hospitals, such as TRMC, to challenge reimbursement rates in a manner that promotes consistent decisions. Furthermore, the Oklahoma Plan has been designed and administered in response to a *1361 complex set of competing demands. DHS must administer Medicaid funding for every hospital in the state and do so in compliance with the mandates of the federal government. The goal of the Oklahoma Plan is to satisfy these demands in a consistent and uniform manner. By granting Plaintiff's request for relief, and thereby modifying the rate by which TRMC is reimbursed under the Oklahoma Plan, would require the Court to decide issues potentially disruptive to this goal of uniform treatment of all state hospitals. Third, the Oklahoma Plan includes a specific rate appeal process available to any hospital seeking to dispute its reimbursement.[8]See OAC 317:30-5-54. Oklahoma has an important stake in maintaining its reimbursement system. To function effectively, DHS must achieve uniformity in determining which appeals are granted or denied and a consistent application of the burden of proof standard in each proceeding. Fourth, the state Medicaid Plan at issue in this case is controlled by complex and difficult state law. Cf. Grimes, 857 F.2d at 705 ("In the instant case the state of Oklahoma has formulated a complex and comprehensive scheme of insurance regulation which contains the Uniform Insurers Liquidation Act. ..."). While it would be possible to render a decision in this matter, the Court believes that any such decision would unduly interfere with a complex state system established for the purpose of coherent regulation. Exercising jurisdiction in this case would disrupt the ability of the OHCA to efficiently and consistently operation the system of administration established under the state statutes. See id. at 706. Moreover, there exists ample opportunity for administrative and state judicial review. Thus, it is clear that abstention under Burford is appropriate. Unlike other forms of federal court abstention, Burford abstention requires the Court to dismiss the case rather than merely stay the proceedings pending state court adjudication. Chemerinsky, at 707. The Court has balanced TRMC's choice of forum against the importance of maintaining a harmonious relationship between the state and federal governments. Consequently, the Court will refrain from becoming involved with state policy making and administration of the Oklahoma Plan. Thus, the Court hereby abstains and Plaintiff's third amended complaint is hereby dismissed. Because the Court holds Burford abstention appropriate in this case, the Court need not reach the other arguments raised in Defendants' motion for summary judgment. Furthermore, the dismissal of this action vacates the temporary injunctive order previously issued by the Court, thus rendering moot Defendants' Motion to Assess Security Bond or in the Alternative to Modify Temporary Injunctive Order (Docket # 74). IT IS SO ORDERED. NOTES [1] On September 1, 1994, Defendants requested the Court to put into place a bond or otherwise secure the amount in dispute. By minute order on February 17, 1995, the Court denied Defendants' motion on the condition that they could reurge the motion upon any indication of financial difficulty on behalf of the hospital. [2] A prospective per diem rate is a rate which is set each June 30th to be applicable to hospitals' services performed for Medicaid patients between July 1 and June 30th of the next year. The rate for each hospital is individually set each year for all eight levels of care. [3] In the third amended complaint filed on February 21, 1995, Plaintiff alleges that: The Oklahoma Plan does not comply with the Act in that it does not provide for reimbursement rates adequate to compensate TRMC and allow it to meet its reasonable costs. In fact, during the period of time TRMC was allegedly overpaid, it lost in excess of $666,000.00 by providing services to Medicaid patients under the Oklahoma Plan, even after receiving the $1,677,693.94 that DHS alleged had been overpaid. Moreover, the Oklahoma Plan violates the Act because it provides for Disproportionate Share Adjustments that discriminate against certain Disproportionate Share Hospitals based upon whether they qualify under the Medicaid Test or Low Income Test. Furthermore, the amendments to the Oklahoma Plan to reduce Disproportionate Share Adjustment percentages were not supported by necessary findings and were promulgated arbitrarily. [4] The McCarran-Ferguson Act is a federal mandate devolving to the states authority over the regulation and taxation of the "business of insurance." Grimes, 857 F.2d at 702 n. 3. The Tenth Circuit stated that the act was relevant to the case because it encourages the states to formulate their own systems to regulate insurers doing business in their states. Therefore, in instances where states have responded to this congressional policy by formulating complex and specialized administrative and judicial schemes to regulate insurers ... it becomes increasingly possible that the exercise by a federal court of its jurisdiction will prove to be "disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Id. at 703 (quoting Colorado River, 424 U.S. at 814, 96 S. Ct. at 1245). [5] The Court notes that "[a]pplication of the Grimes factors must be considered in conjunction with the Supreme Court's subsequent decision in [New Orleans Pub. Serv., Inc.], which refined the Burford doctrine." Crawford v. Employers Reinsurance Corp., 896 F. Supp. 1101, 1104 (W.D.Okla.1995). [6] As the Second Circuit stated, "[i]n Burford, the Supreme Court observed that if a statutory standard lends itself to variation in its application and if conflicts in interpretation would be dangerous to the success of state policies, federal courts should abstain." Bethphage, 965 F.2d at 1243 (citing Burford, 319 U.S. at 332-34, 63 S. Ct. at 1106-08). [7] The Second Circuit noted that "[e]very abstention case is to be decided upon its particular facts and not with recourse to some `mechanical checklist.'" Bethphage, 965 F.2d at 1245 (quoting Law Enforcement Ins. Co. v. Corcoran, 807 F.2d 38, 40 (2d Cir.1986)). [8] Which appeal process TRMC utilized on June 23, 1993. See supra ¶ 27.

2013-10-30 06:32:42.940753+00

Kelley

774 A.2d 785 (2001) Ernest S. FARANCE, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (Marino Brothers, Inc.), Respondent. Commonwealth Court of Pennsylvania. Argued October 30, 2000. April 26, 2001. *786 Susan Aczak, Pittsburgh, for petitioner. Michael A. Cohen, Pittsburgh, for respondent. Before KELLEY, FLAHERTY, Judges, and RODGERS, Senior Judge. OPINION BY JUDGE KELLEY Ernest S. Farance (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of a workers' compensation judge (WCJ) which denied Claimant's penalty petition that had been filed pursuant to the provisions of the Pennsylvania Workers' Compensation Act (Act).[1] We affirm. Marino Brothers, Inc. (Employer) hired claimant in 1979 as a laborer and driver of Employer's delivery truck. He continued in his employment until January 19, 1990. On that date, Claimant was injured when a cutting torch he was using exploded, causing injuries to his eyes, neck shoulder and hands. Pursuant to a notice of compensation payable dated February 15, 1990, Claimant received weekly compensation benefits based on injuries described as "multiple lacerations". On June 10, 1991, a supplemental agreement was executed which stated that as of June 20, 1990, Claimant had fully recovered from his physical injuries but he remained disabled as a result of a conversion disorder arising from his work-related injuries. As a result, Claimant's disability benefits continued. On April 7, 1997, Employer filed a petition to terminate/suspend Claimant's disability benefits. In the petition, Employer alleged that Claimant had no residual disability from his work-related injury as of December 10, 1996. On April 14, 1997, pursuant to Section 435 of the Act[2], Claimant filed a penalty petition in which he alleged that his benefits had been improperly suspended under the provisions of Section 311.1 of the Act,[3],[4]. Timely *787 answers were filed to the petitions and hearings before a WCJ ensued. On June 4, 1998, the WCJ issued an order and decision disposing of Employer's termination petition and Claimant's penalty petition in which she made the following relevant findings of fact: 6. The facts on which the penalty petition is based are not in dispute. The insurance carrier sent a verification form (LIBC-760) under Section 311[.1](d) to the claimant for completion. The claimant returned the verification form after the thirty day period set forth in Section 311.1(g) had passed. The insurance company suspended the claimant's benefits effective February 12, 1997. The claimant benefits were reinstated as of March 13, 1997, after the verification form was returned. The claimant's benefits were not reinstated retroactively to the date of the suspension. On the face of LIBC-760 there is a warning in bold face capital letters which states: FAILURE TO COMPLETE AND RETURN THIS FORM WITHIN THIRTY DAYS MAY RESULT IN A SUSPENSION OF YOUR COMPENSATION BENEFITS, AS WELL AS PROSECUTION FOR FRAUD UNDER ARTICLE XI OF THE WC ACT.[5] WCJ Decision, p. 2. Based on the foregoing, the WCJ concluded that there was no violation of the Act by Employer in suspending Claimant's benefits until the LIBC 760 was completed and returned to the insurance carrier. In fact, the WCJ concluded that the procedure followed by Employer regarding the return of the form was in compliance with the Act and the regulations promulgated by the Pennsylvania Department of Labor and Industry.[6] As a result, the WCJ issued *788 an order denying Claimant's penalty petition.[7] On June 18, 1998, Claimant filed an appeal of the WCJ's decision denying his penalty petition with the Board. On April 6, 2000, the Board issued an order and opinion affirming the WCJ's decision. Claimant then filed the instant petition for review in this Court.[8] In this appeal, Claimant contends: (1) the Board erred in affirming the WCJ's decision denying his penalty petition because the provisions of Section 311.1(g) of the Act violate the Pennsylvania and United States Constitutions by denying him property without due process of law; and (2) the Board erred in affirming the WCJ's decision denying Claimant's penalty petition because an employer is required to retroactively reinstate benefits when a claimant complies with the provisions of Section 311.1 of the Act. We initially note that this Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Lehigh County Vo-Tech *789 School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). In order for the imposition of penalties to be appropriate, a violation of the Act or of the rules and regulations issued pursuant to the Act must appear on the record. Galloway v. Workers' Compensation Appeal Board (Pennsylvania State Police), 756 A.2d 1209 (Pa.Cmwlth.2000); Moore v. Workmen's Compensation Appeal Board (Reading Paperboard Corp.), 676 A.2d 690 (Pa.Cmwlth.), petition for allowance of appeal denied, 546 Pa. 658, 684 A.2d 559 (1996). However, the imposition of a penalty is at the discretion of the WCJ. Galloway; Essroc Materials v. Workers' Compensation Appeal Board (Braho), 741 A.2d 820 (Pa.Cmwlth.1999); Moore. Thus, the imposition of a penalty is not required even if a violation of the Act is apparent on the record. Galloway; Essroc Materials; Moore. Because the assessment of penalties, as well as the amount of penalties imposed, are discretionary, we will not overturn a penalty on appeal absent an abuse of discretion by the WCJ. Essroc Materials. As noted above, Claimant first contends that the Board erred in affirming the WCJ's decision denying his penalty petition because the provisions of Section 311.1(g) of the Act violate the Pennsylvania and United States Constitutions by denying him property without due process of law. In particular, Claimant asserts that because the provisions of Section 311.1(g) of the Act and Section 123.502(c) and (g) of the regulations permit the suspension of benefits without a hearing, they constitute an impermissible automatic supersedeas under Baksalary v. Smith, 579 F. Supp. 218 (E.D.Pa.1984). We do not agree. As this Court has previously noted: In Baksalary the court was concerned with the automatic supersedeas which typically occurred in two types of cases: Thus, in two sorts of cases an employee receiving benefits can have his benefits terminated pending disposition of his employer's or his employers' insurer's petition to terminate or modify those benefits. The first sort of case is one where the petition alleges that the employee has returned to work at the same or higher wages. The second sort of case is one where the petition alleges that the employee has fully recovered... [In both cases], [t]he employee has no avenue to contest application of the automatic supersedeas other than his defense on the merits of the petition before the referee. Referees typically take one year or more to decide contested cases. Baksalary, 579 F.Supp. at 221 (emphasis added). The Baksalary court concluded that because under Section 413's automatic supersedeas there was no effective process available for a claimant to contest the employer's petition to terminate or modify benefits prior to such termination or modification, Section 413 did not afford due process and was unconstitutional. Like the Baksalary court, this Court has held that it is not the policy of the Court to endorse an employer's unilateral decision to cease paying a claimant's benefits without a written agreement or official order. Such action is an unauthorized supersedeas for which penalties may be imposed. Arnott v. Workmen's Compensation Appeal Board (Sheehy Ford Sales, Inc.), [156 Pa.Cmwlth. 167, 627 A.2d 808 (Pa.Cmwlth.1993), petition for allowance of appeal denied,] 537 Pa. 624, 641 A.2d 589 (1994). *790 Crawford County Care Center v. Workmen's Compensation Appeal Board (Daly), 168 Pa.Cmwlth. 169, 649 A.2d 203, 206-207 (1994). See also Gillis v. Workers' Compensation Appeal Board (Willits Roofing, Inc.), 725 A.2d 257, 259-260 (Pa.Cmwlth.1999) ("[T]he law is well settled that an employer who is obligated to pay a claimant benefits can cease paying benefits if it satisfies any of the following conditions: (1) submits a supplemental agreement pursuant to Section 408 of the Act, 77 P.S. § 732; (2) submits a final receipt signed by the claimant pursuant to Section 434 of the Act, 77 P.S. § 1001; (3) secures an interlocutory order from a WCJ granting a discretionary supersedeas pursuant to Sections 413(a.1) and 413(a.2) of the Act, 77 P.S. § 774; (4) files a petition to suspend compensation with an accompanying affidavit from the insurer that the claimant has returned to work at wages greater than or equal to his pre-injury wage pursuant to Section 413(c) of the Act, 77 P.S. § 774.2; or (5) secures a final order from a WCJ terminating a claimant's benefits. Sheridan v. Workers' Compensation Appeal Board (Anzon, Inc.), 713 A.2d 182 (Pa.Cmwlth.1998). Until one of the above events occurs, an employer is under a continuing obligation to pay a Claimant benefits properly owed to him. Id."). In contrast, in the instant case, the suspension of benefits resulted from Claimant's failure to timely submit the Form LIBC-760, a duty that is required under the provisions of Section 311.1 of the Act. See, e.g., Galloway, 756 A.2d at 1213-1214 ("[I]t is apparent that [Section 311.1] of Act 57 is aimed at the reporting of employment, self-employment and physical condition by claimants at the request of employers. While Section 311.1(g) of Act 57 does permit the suspension of benefits by an employer in the event a completed verification form is not returned by a claimant, we do not believe that the Legislature intended for suspensions to occur in the event a residential address is not listed. In other words, the plain meaning of the Section reflects that suspensions may occur if a verification is lacking information which the Section intends to acquire; namely, information regarding employment, self-employment and/or physical condition..."). In addition, as noted above, Claimant's failure to submit the Form LIBC-760, if done knowingly and with an intent to defraud, could constitute a criminal offense pursuant to the provisions of Section 1102(10) of the Act. Moreover, as noted by the WCJ, Claimant was provided with the following notice on the face of the Form LIBC-760 in bold face capital letters prior to the suspension of his benefits: FAILURE TO COMPLETE AND RETURN THIS FORM WITHIN THIRTY DAYS MAY RESULT IN A SUSPENSION OF YOUR COMPENSATION BENEFITS, AS WELL AS PROSECUTION FOR FRAUD UNDER ARTICLE XI OF THE WC ACT. WCJ Decision, p. 2. Thus, Claimant was provided with notice and the opportunity to submit the required information prior to the suspension of his benefits. In addition, as found by the WCJ, Claimant's benefits were immediately reinstated once he submitted the required form. Id. Clearly, the due process concerns in Baksalary are inapposite, and Claimant's reliance on that opinion is misplaced.[9]See, e.g., Findley v. Workers' *791 Compensation Appeal Board (Brooklyn Bagel, Inc.), 707 A.2d 1220 (Pa.Cmwlth.1998) (Claimant was not denied due process where he had the opportunity to be heard prior to the issuance of an order requiring him to undergo a physical examination and the suspension of his benefits for failing to attend the physical examination.). Finally, Claimant asserts that the Board erred in affirming the WCJ's decision denying Claimant's penalty petition because an employer is required to retroactively reinstate benefits when a claimant complies with the provisions of Section 311.1 of the Act. In particular, Claimant asserts that because Section 311.1 of the Act and Section 123.502 of the regulations speak of a suspension of benefits, and not a forfeiture of benefits, his benefits should have been retroactively reinstated upon his submission of the Form LIBC-760. In support of this claim, Claimant points to the language of Section 306(f.1)(8) of the Act which states: (8) If the employe shall refuse reasonable services of health care providers, surgical medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal. 77 P.S. § 531(8). Claimant asserts that because Section 306(f.1)(8) provides for a forfeiture of benefits, and Section 311.1 of the Act and Section 123.502 of the regulations provide for a suspension of benefits, a reinstatement after a suspension under Section 311.1 of the Act and Section 123.502 of the regulations must be a retroactive reinstatement. However, Claimant's argument overlooks the opinion of this Court in Stuart Painting Co. v. Workmen's Compensation Appeal Board (Asvestas), 148 Pa.Cmwlth. 411, 611 A.2d 787, petition for allowance of appeal denied, 532 Pa. 649, 614 A.2d 1144 (1992). In interpreting the prior version of Section 306(f.1)(8) of the Act, this Court stated the following, in pertinent part: The supreme court in Muse v. Workmen's Compensation Appeal Board (Western Electric Co.), 514 Pa. 1, 8, 522 A.2d 533, 537 (1987), concluded that the words of Section 306(f)(4) of the Act are clear and that "[t]he purpose of the statute is to provide cure where it can reasonably be done by medical arts for the benefit of the claimant; that he not be handicapped in his health or his prospects for gainful and fulfilling employment." The court, however, does not indicate whether the forfeiture language in the statute can be interpreted to mean a forfeiture of benefits forever. *792 We hold that the Board properly interpreted that the meaning of the forfeiture provision in Section 306(f)(4) is analogous to the language of Section 314 of the Act, 77 P.S. § 651[10], which deprives a claimant of compensation for refusing or neglecting, without reasonable cause or excuse, to submit to a physical examination. Under Section 314 of the Act, payment of benefits is suspended until the claimant submits to the examination. If claimant subsequently complies with an order for examination, payment of benefits resumes. Stuart Painting Co., 611 A.2d at 790. Thus, this Court has interpreted the forfeiture provision of the former version of Section 306(f.1)(8) to be of the same effect as the suspension provision of Section 314 of the Act. Id. Under either section of the Act, the payment of a claimant's benefits resumes when the claimant ultimately complies with the acts required by these sections. Id. Likewise, the provisions of Section 311.1 of the Act and Section 123.502 of the regulations provide for the suspension of a claimant's benefits during a period of noncompliance, and the payment of a claimant's benefits resumes when the claimant ultimately complies with the requirements of these sections. In short, the WCJ did not err in suspending Claimant's benefits during the period of noncompliance, and in ordering the reinstatement of benefits as of the date he ultimately submitted the Form LIBC-760, and the Board did not err in affirming the WCJ's decision. Accordingly, the order of the Board is affirmed. ORDER AND NOW, this 26th day of April, 2001, the order of Workers' Compensation Appeal Board, dated April 6, 2000 at No. A98-2453, is affirmed. NOTES [1] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. [2] Section 435 of the Act states, in pertinent part: (d) The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violation of the provisions of this act or such rules and regulations or rules of procedure: (i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable... * * * (iii) Claimants shall forfeit any interest that would normally be payable to them with respect to any period of unexcused delay which they have caused. 77 P.S. § 991(d). [3] Section 311.1 of the Act, added by Section 6 of the Act of June 24, 1996, P.L. 350, states, in pertinent part: (c) An employe is obligated to cooperate with the insurer in an investigation of employment, self-employment, wages and physical condition. (d) If an employe ... is receiving compensation under section 306(a) or (b), the insurer may submit a verification form to the employe either by mail or in person. The form shall request verification by the employe that the employe's status regarding the entitlement to receive compensation has not changed and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and change in physical condition. Such verification shall not require any evaluation by a third party; however, it shall include a certification evidenced by the employe's signature that the statement is true and correct and that the claimant is aware of the penalties provided by law for making false statements for the purpose of obtaining compensation. (e) The employe is obligated to complete accurately the verification form and return it to the insurer within thirty days of receipt by the employe of the form.... * * * (g) If the employe fails to return the completed verification form within thirty days, the insurer is permitted to suspend compensation until the completed verification form is returned. The verification form utilized by the insurer shall clearly provide notice to the employe that failure to complete the form within thirty days may result in a suspension of compensation payments. 77 P.S. § 631.1(c)-(e), (g). [4] In particular, Claimant alleged, inter alia, that the provisions of Section 311.1(g) of the Act violate the Pennsylvania and United States Constitutions as it deprives him of property without due process of law, and that the insurer violated the provisions of the Act by failing to reinstate his benefits retroactive to the date of the suspension upon his submission of the verification form. [5] Section 1102(10) of the Act states, in pertinent part: A person, including, but not limited to... the employe, ... commits an offense if the person does any of the following: * * * (10) Knowingly and with intent to defraud, fails to make the report required under section 311.1... 77 P.S. § 1039.2(10). [6] The relevant regulations are found in Section 123.502 of Chapter 34 of the Pennsylvania Code which states: § 123.502. Verification. (a) Insurers may submit Form LIBC-760, "Employee Verification of Employment, Self-employment or Change in Physical Condition", to the employe and employe's counsel, if known, to verify, no more than once every 6 months, that the status of the employe's entitlement to receive compensation has not changed. (b) Form LIBC-760 shall be delivered to the employe in person or consistent with section 406 of the act. (c) The employe shall complete and return form LIBC-760 to the insurer within 30 days of receipt of the form. (d) If the employe fails to comply with subsection (c), the insurer may suspend payments of wage-loss benefits until Form LIBC-760 is returned by the employe. (e) To suspend payments of compensation due to the employe's failure to comply with subsection (c), the insurer shall provide written notice to the employe, the employe's counsel, if known, and the Department, on Form LIBC-762, "Notice of Suspension for Failure to Return Form LIBC-760 (Employee Verification of Employment, Self-employment or Change in Physical Condition)" of the following: (1) The workers' compensation benefits have been suspended because of the employe's failure to return the verification form within the 30 day statutorily prescribed time period. (2) The workers' compensation benefits shall be reinstated by the insurer, effective upon receipt of the completed verification form. (3) The employe has the right to challenge the suspension of benefits by filing a petition for reinstatement with the Department. (f) Upon receipt of the completed verification form, the insurer shall reinstate the workers' compensation benefits for which the employe is eligible. The insurer shall provide written notice to the employe, employe's counsel, if known, and the Department, on Form LIBC-763, "Notice of Reinstatement of Workers' Compensation Benefits", that the employe's workers' compensation benefits have been reinstated due to the return of the completed verification form. The notice shall further indicate the date the verification form was received by the insurer and the date of reinstatement of the workers' compensation benefits. (g) Employes are not entitled to payments of workers' compensation during periods of noncompliance with subsection (c). 34 Pa.Code § 123.502. [7] The WCJ also made findings of fact and conclusions of law relating to Employer's termination/suspension petition. Id. at pp. 2-8. Likewise, the WCJ issued an order denying Employer's petition. Id. at p. 8. However, Employer did not appeal this determination to the Board. [8] Pursuant to an order of this Court dated July 11, 2000, the Pennsylvania Trial Lawyers Association has filed an amicus curiae brief in support of Claimant's appeal. [9] Moreover, even if it assumed that Claimant is correct in his assertion that the suspension pursuant to Section 311.1 of the Act violated his due process rights, this fact alone does not compel the grant of his penalty petition. As noted above, the imposition of a penalty is at the discretion of the WCJ, and a penalty is not required even if a violation of the Act is apparent on the record. Galloway; Essroc Materials; Moore. Thus, the WCJ was free to choose not to grant the penalty petition even if Employer imposed an impermissible automatic supersedeas by suspending Claimant's benefits. See, e.g., Crawford County Care Center, 649 A.2d at 207 ("[T]herefore, Employer's unilateral suspension of benefits was in violation of Claimant's rights under Baksalary, and the imposition of a penalty for violation of the act was proper and well within the discretion of the [WCJ]..."); see also Arnott v. Workmen's Compensation Appeal Board (Sheehy Ford Sales, Inc.), 156 Pa.Cmwlth. 167, 627 A.2d 808 (1993), petition for allowance of appeal denied, 537 Pa. 624, 641 A.2d 589 (1994) (Although an employer's unilateral cessation of paying a claimant's benefits without written agreement or official order operated as unauthorized supersedeas under Baksalary, which could not be endorsed, substantial evidence supported the denial of retroactive benefits to the claimant; the claimant did not file a formal petition for penalties and counsel fees and the employer successfully established that the claimant had obtained employment, thereby constituting a reasonable basis for denying penalties and counsel fees.). [10] Section 314(a) of the Act states, in pertinent part: [T]he refusal or neglect, without reasonable cause or excuse, of the employe to submit to such examination or expert interview ordered by the workers' compensation judge, either before or after an agreement or award, shall deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect, and the period of such neglect or refusal shall be deducted from the period during which compensation would otherwise be payable. 77 P.S. § 651(a).

2013-10-30 06:32:42.965106+00

Harbison

535 S.W.2d 327 (1976) Alan D. HILL, b/n/f Ronald G. Hill, and Ronald G. Hill, Individually, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee. Supreme Court of Tennessee. March 15, 1976. *328 James A. Ridley, III, Knoxville (Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, of counsel), for appellants. Jerry A. Farmer, Knoxville (Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, of counsel), for appellee. OPINION HARBISON, Justice. This case involves the validity of an exclusion in the uninsured motorist provisions of an automobile insurance policy. The trial court upheld the exclusion against a contention that it conflicts with the uninsured motorist statutes of the state. The facts of the case are stipulated. The suit arises out of an accident which occurred on September 5, 1973, when a motorcycle driven by appellant Alan D. Hill collided with an automobile owned by Mary E. Troutt and operated by her husband, Edgar L. Troutt. At the time of the accident Alan D. Hill was a minor, fifteen years of age. The motorcycle which he was operating was titled in the name of his older brother, Randell G. Hill. The two brothers lived in the home of their parents, Mr. and Mrs. Ronald G. Hill. Appellants Alan D. Hill and his father sued Mr. and Mrs. Troutt and recovered a judgment against them, which is outstanding and unpaid. Mr. and Mrs. Troutt had no liability insurance on their automobile. The appellants are claiming coverage under a liability policy issued to appellant Ronald G. Hill on his family automobiles, up to the policy limit of ten thousand dollars. On the date of the accident, Mr. Hill held a liability insurance policy issued by appellee covering two scheduled automobiles. This policy contained uninsured motorist coverage as required by the Tennessee statutes, T.C.A. §§ 56-1148 et seq. This coverage, referred to in the policy as "Family Protection Coverage", extends to the named insured, Mr. Hill, and, while residing in the same household, his spouse and relatives. His younger son, Alan, therefore, was within the general coverage of the family automobile policy, subject to its terms and conditions. Under the stipulated facts, the motorcycle which Alan was operating was not listed upon or covered with liability insurance under the policy issued by appellee. It was titled in the name of Alan's older brother, but was actually scheduled upon and covered by a separate liability insurance policy, issued to Mr. Hill by another company. The stipulation shows that Mr. Hill had expressly rejected uninsured motorist insurance coverage in connection with the policy covering the motorcycle. There seems to be little question but that Alan D. Hill was covered with liability insurance while operating his brother's motorcycle, under this separate policy, but there was no uninsured motorist protection provided to anyone under that policy. Contained in the uninsured motorist provisions of the family automobile policy are four exclusions from coverage, only one of which is pertinent here. The exclusion relied upon by appellee in the present case is as follows: "This endorsement does not apply: ... (b) to bodily injury to an Insured while occupying a land motor vehicle (other than an insured land motor vehicle) owned by a Named Insured or any relative resident in the same household... ." It is conceded that the motorcycle being operated by Alan D. Hill was a "land motor vehicle" within the meaning of the exclusion. It was admittedly owned by a relative residing in the same household. The exclusion, therefore, is clearly applicable, precluding coverage under the stipulated facts, if it complies with the state law. The sole attack made upon the exclusion by appellants is that it contravenes the provisions of T.C.A. § 56-1148, and is not authorized by any other provision of state *329 law, so that it is, in effect, illegal and contrary to the public policy of the state as contained in the uninsured motorist statutes. At all times pertinent here, T.C.A. § 56-1148 provided that no automobile liability insurance policy should be issued in the state, covering any motor vehicle registered or principally garaged in the state, unless prescribed uninsured motorist coverage was provided therein, or unless "any insured named in the policy shall reject the coverage... ." The statute prescribes minimum limits for such coverage and requires that it be provided: "... subject to provisions filed with and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom... ." Alan D. Hill was a person insured under the automobile policy issued to his father.[1] Therefore, the statute mandates that uninsured motorist coverage be extended to him also, but "subject to provisions filed with and approved by the insurance commissioner... ." It is stipulated by the parties that the policy of insurance issued by appellee to Mr. Hill "was approved by and is on file with the Tennessee Commissioner of Insurance." The exclusion in question, therefore, according to this stipulation, has official approval in the state. Nevertheless, it is contended on behalf of appellants that such official approval is not determinative. It is insisted that the purported exclusion denies coverage to one who is otherwise covered, simply because he is occupying a vehicle owned by the named insured or a member of his family, but not scheduled on or covered by the underlying liability insurance policy. Appellants insist that a person protected by the uninsured motorist endorsement is covered under most circumstances if injured by an uninsured motorist, and that the exclusion operates to produce arbitrary and illogical results. If the insured person is riding in a vehicle covered by the liability policy, and is struck by an uninsured motorist, he is usually covered;[2] similarly, if he is a pedestrian on a sidewalk or street, and is struck by an uninsured motorist, he is covered. Coverage is denied, however, if he is riding in another family vehicle not carried on the family liability insurance policy. It is insisted that such a result is contrary to the legislative purpose and intention, and to the underlying public policy of providing protection against injuries by uninsured motorists. The issue presented has been the subject of a very large number of cases in the United States, and there is a substantial split of authority among the courts with respect to the validity of an exclusion such as that involved here. On behalf of the insurance industry, it is argued that if the exclusion is stricken, then complete unrestricted coverage is provided to all members of the insured's family, while riding in an unscheduled family vehicle, although no premium was charged for such unscheduled vehicle and the vehicle itself is not covered by the liability insurance features of the policy. This position has been accepted by a number of courts, and in a very recent case, sustaining an exclusion similar to that involved here, the Arizona Court of Appeals, referring to earlier cases from that state, said: "We reasoned that to hold otherwise would allow an insured to purchase one liability policy with uninsured motorist *330 coverage and thereafter have such coverage extended to cover himself and occupants while driving any number of vehicles owned by him without paying any additional premium for this added coverage and risk." Rodriquez v. Maryland Indemnity Insurance Company, 24 Ariz. App. 392, 539 P.2d 196, 198 (1975). Authorities accepting the rationale of the case just cited point out that vehicular liability insurance is ordinarily written upon and follows particular scheduled vehicles. It is not written upon named individuals, and is not like general health or accident insurance coverage.[3] The liability policy covers a scheduled vehicle, and extends its protection, through omnibus clauses, not only to the named insured but to members of his family and other persons using the vehicle with permission, subject to prescribed conditions and exclusions. Other authorities, holding that exclusions such as that involved in the present case are not valid, have reasoned that uninsured motorist coverage should be analogized to broad personal insurance, and that it should not be geared to or limited by coverage on particular scheduled vehicles. They emphasize that the statutes speak in terms of "protection of persons" rather than vehicles.[4] Both lines of authority are supported by cogent reasons. By statute, uninsured motorist insurance coverage is appended to or made supplemental to vehicular liability insurance, so that the concepts of vehicular coverage do have relevance; on the other hand, the statutes refer to the protection of persons, not vehicles. Faced with these somewhat mixed concepts, the courts have had to construe statutory language in an attempt to carry out legislative policy. Each case, in the last analysis, turns upon the terms and provisions of a particular state statute and its language with respect to uninsured motorist coverage. The Tennessee statutes on uninsured motorist insurance have been the subject of a number of reported cases. In addition to the general provisions of T.C.A. § 56-1148, prescribing uninsured motorist coverage, T.C.A. § 56-1152, at all times pertinent here, provided that none of the other statutory provisions on the subject should be construed as requiring insurance companies to afford limits in excess of those which "would be afforded had the insured thereunder been involved in an accident with a motorist who was insured under a policy of liability insurance with the minimum limits described in § 59-1206."[5] T.C.A. § 56-1152 further provides: "Such forms of coverage may include such terms, exclusions, limitations, conditions, and offsets, which are designed to avoid duplication of insurance and other benefits." The uninsured motorist statutes of most states do not contain provisions similar to those contained in T.C.A. § 56-1152. In previous cases, this Court has noted the difference in statutory provisions, and has construed T.C.A. § 56-1152 as denoting "a legislative purpose to provide less than broad coverage." Terry v. Aetna Casualty and Surety Company, 510 S.W.2d 509, 513 (Tenn. 1974). In the latter case, the Court sustained a policy provision providing an offset against the uninsured motorist coverage for any amount recovered under workmen's compensation. *331 In the recent case of State Automobile Mutual Insurance Company v. Cummings, 519 S.W.2d 773 (Tenn. 1975), this Court again gave effect to T.C.A. § 56-1152 stating: "While we do not applaud either the draftsmanship or the existence of T.C.A. § 56-1152, we must give it the effect that its reasonable construction demands. The Legislature has stated that nothing in the Uninsured Motorist statutes is to be construed as requiring coverage beyond the sum of $10,000, either alone or in combination with similar coverage, and has expressly authorized all policies to contain provisions to avoid duplications of insurance and other benefits." 519 S.W.2d at 775. In the case of Smith v. Allstate Insurance Company, 224 Tenn. 423, 456 S.W.2d 654 (1970), the Court sustained an exclusion in a policy provision requiring "physical contact" between an insured vehicle and an uninsured vehicle before uninsured motorist protection was applicable. It was insisted that such a limitation on coverage was not valid under the Tennessee statutes. The Court held otherwise, citing cases from a number of jurisdictions, and also emphasizing that the Insurance Commissioner had approved the "physical contact" requirement. The Court noted, in that opinion, that approval by the Commissioner "will not render policy endorsements invulnerable if they are violative of existing law." The Court found no conflict, however, between the statutes and the policy provision. It found that the limitation on coverage was reasonable, designed to protect the insurer from spurious claims. The provision was upheld although the Court recognized that in some cases "our ruling will work a hardship and likewise seem inequitable... ." In the case of Holt v. State Farm Mutual Automobile Insurance Co., 486 S.W.2d 734 (Tenn. 1972), the Court upheld an exclusion in a liability insurance policy, denying coverage to members of the family or household of the insured. It also denied recovery under uninsured motorist coverage to a family member. As to the son's claim against the insurance carrier on an automobile owned by his mother which was not involved in the collision, the Court simply said: "Certainly Jimmy cannot recover on the policy covering the automobile which was not involved in the accident." 486 S.W.2d at 736. As to the automobile which was in the accident, the family exclusion was held valid, as was the definition of "uninsured motor vehicle". In the Holt case the Court concluded that uninsured motorist coverage is closely related to the underlying liability insurance coverage to which it is appended. The exclusion of family members from the liability coverage effectively excluded them from uninsured motorist coverage under the facts of that case.[6] The Court said: "Considering the Act as a whole, it would be a strained construction of the Act to say it requires an `uninsured motor vehicle' be defined as to include uninsured motorist coverage for a person specifically excluded from liability coverage by the terms of the policy." 486 S.W.2d at 737. The foregoing cases make it clear that the Court has given force and effect to the provisions of T.C.A. § 56-1152, the statutory authorization for exclusions from uninsured motorist coverage such as that involved here. The Court has also considered approval by the Insurance Commissioner to be a factor, although not conclusive, in determining the validity of policy provisions. *332 We do not attach controlling significance to the fact that the named insured in the present case, Mr. Hill, specifically rejected uninsured motorist coverage on his son's motorcycle. It is apparent, however, that had such coverage been purchased, it would have covered his son Alan, since it would have been appended to the liability policy on which the motorcycle was scheduled. In that event, one of the reasons for the exclusion now under consideration becomes apparent; the family automobile policy exclusion would then have operated according to its terms so as to prevent a "duplication of insurance" as authorized by T.C.A. § 56-1152. Under all of the circumstances, therefore, we are unable to say that the policy provision in question was not "designed" to avoid such duplication, or that it so conflicts with the underlying purpose of the uninsured motorist statutes, as construed in this state, that it must be deemed illegal and void. We recognize that there is no duplication in the present case, because of the absence of uninsured motorist coverage on the motorcycle. Further, as recognized in the Smith case, supra, application of the exclusion results in there being no coverage at all under these particular circumstances. The statute does not speak in absolute terms, however, but authorizes the Commissioner to approve policy provisions and exclusions which "are designed to avoid duplication of insurance and other benefits." We cannot say that the present policy exclusion violates this statutory provision. It accordingly results that the judgment of the trial court is affirmed at the cost of appellants. FONES, C.J., BROCK and HENRY, JJ., and HYDER, Special Justice, concur. NOTES [1] The liability coverage of the policy protected the named insured and residents of his household while operating the two automobiles scheduled on the policy. As previously stated, this policy did not provide liability coverage to anyone in the family while operating the motorcycle. [2] But see Holt v. State Farm Mut. Automobile Ins. Co., 486 S.W.2d 734 (Tenn. 1972), discussed later in this opinion, disallowing recovery if the injured person is excluded from the coverage of the underlying liability policy. [3] For other cases sustaining an exclusion similar to that in the present case, see Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973); Nunley v. Turner, 57 Mich. App. 473, 226 N.W.2d 528 (1975); Shipley v. Am. Standard Ins. Co. of Wisconsin, 183 Neb. 109, 158 N.W.2d 238 (1968). [4] The cases striking the exclusion usually turn upon definitions and terms used in the particular statutory provisions under consideration. Illustrative of the cases voiding an exclusion similar to that involved in the present case are State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974); Elledge v. Warren, 263 So. 2d 912 (La. App. 1972); Doxtater v. State Farm Mut. Automobile Ins. Co., 8 Ill. App. 3d 547, 290 N.E.2d 284 (1972); Lowery v. State Farm Mut. Automobile Ins. Co., 285 So. 2d 767 (Miss. 1974). [5] T.C.A. § 59-1206 is part of the State Financial Responsibility Law. [6] See discussion of the Holt case and many other cases on the subject in Note, 23 Drake L.Rev. 850 (1974), at pp. 856 et seq. The case was cited and followed in Miles v. State Farm Mutual Ins. Co., 519 S.W.2d 378 (Mo. App. 1975); Kay v. Kay, 30 Utah 2d 94, 513 P.2d 1372 (1973). Its rationale was rejected in Rodman v. State Farm Mut. Automobile Ins. Co., 208 N.W.2d 903 (Iowa, 1973).

2013-10-30 06:32:42.978977+00

Fisher

955 F. Supp. 354 (1997) Susan FERRARO, Plaintiff, v. BELL ATLANTIC COMPANY, INC., et al., Defendants. Civil No. 96-6111(CSF). United States District Court, D. New Jersey. February 20, 1997. *355 Law Offices of Linda B. Kenney, by Linda B. Kenney, Nancy S. Martin, Gregory S. Schaer, Red Bank, NJ for Plaintiff. Carpenter, Bennett & Morrissey, by Francis X. Dee, David J. Reilly, Pamela Davis-Clarke, Newark, NJ for Bell Atlantic-New Jersey, Inc. AMENDED OPINION CLARKSON S. FISHER, District Judge. This matter comes before the court on plaintiff's motion to remand to the Superior Court of New Jersey, Monmouth County, Law Division. Plaintiff's complaint was filed on November 6, 1996, in the Superior Court, and contained six counts: (1) discrimination on the basis of gender in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq; (2) hostile work environment in violation of the NJLAD; (3) retaliation for filing a complaint in violation of the NJLAD; (4) intentional infliction of emotional distress against defendant Daniel Galbraith; (5) breach of an express and/or implied contract against defendant Bell Atlantic; (6) breach of the covenant of good faith & fair dealing against defendant Bell Atlantic. Defendant filed a notice of removal pursuant to 28 U.S.C. § 1441 on December 30, 1996. For the reasons set forth below, plaintiff's motion to remand will be denied. Plaintiff began her employment with Bell Atlantic Company, Inc. on or about December 30, 1974. As an employee, plaintiff is a member of the International Brotherhood of Electrical Workers, AFL-CIO, Local # 827 ("Union"). A collective bargaining agreement ("CBA") exists between Bell Atlantic-New Jersey and Local # 827. Plaintiff's position was as a "Systems Technician" in the radio/video department, specializing in mobile/temporary communications. Plaintiff was the only female in this department and she was the only female in this field of mobile/temporary communications. She had obtained a Federal Communications Compliance ("FCC") license and was Bellcore certified. Plaintiff alleges that she was the only employee that had obtained both accreditations. Plaintiff alleges that beginning sometime in or about October 1992, defendants began treating her in a hostile, demeaning and threatening manner. Plaintiff alleges that she attempted to speak to her male co-workers, yet the hostile work environment continued. Plaintiff alleges that she repeatedly told her supervisor, Bruce Pierson, about the environment, yet no resolution was reached. Plaintiff alleges that on or about November 10, 1994, when the hostile work environment had not improved she spoke with the Union representative, Diane McNamara, about the hostile work environment and the threatening behavior of certain co-workers. Plaintiff also contacted the Equal Employment Opportunity ("EEO") officer to inform him of the situation. Plaintiff alleges that the environment grew increasingly more hostile and eventually caused her to become ill and see a physician. *356 Her treating physician, Dr. Katz, initially advised plaintiff that she needed to take time off from work because the stress in the workplace was affecting her health. Dr. Katz later ordered plaintiff to remain out of work. This recommendation was made on a week-to-week basis. On November 29, 1994, pursuant to defendant Bell Atlantic's policies, plaintiff's disability benefits began. Plaintiff sought counseling through Bell Atlantic's Employee Assistance Program and, upon termination of that benefit, continued counseling sessions with Dr. Rubin. Plaintiff alleges that because of the hostile work environment and gender discrimination, she applied for Social Security Disability benefits and was determined to be entitled to benefits as of August 1, 1996. Plaintiff alleges that after she was forced to leave her employment on a disability leave, Bell Atlantic never provided her with her accrued vacation time for 1994 or for any time for which she may be entitled. Plaintiff alleges that Bell Atlantic's failure to pay her for her accrued vacation time is in violation of Bell Atlantic's policies and practices. Additionally, plaintiff alleges that because of Bell Atlantic's failure to provide her with her accrued vacation time, her length of service with the company was affected, and thus Bell Atlantic paid plaintiff at half pay instead of extending her full-time payments to correspond with her actual length of service. Plaintiff alleges that this was in contradiction to Bell Atlantic's own policies regarding the length of time an employee may receive full-time salary. Plaintiff also alleges that she never received the contract raise negotiated by the Union which became effective on May 21, 1995. Plaintiff alleges that she was informed, just prior to the end of short-term disability ("STD") benefits that she would be considered retired and begin receiving long-term disability ("LTD") benefits. Less than a month later, plaintiff received a notice that she must apply for long-term disability benefits. Eventually, on or about July 9, 1996. plaintiff's request for long-term disability benefits was denied. The issue presently before the court is whether Counts Five and Six of plaintiff's complaint are preempted by either the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1144, or Section 301 of the Labor Management Relation Act ("LMRA"), 29 U.S.C. § 185. A defendant sued in state court can remove the case to federal district court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). The party seeking removal bears the burden of establishing its propriety. See Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991). The Third Circuit instructs district courts to construe removal statutes strictly in favor of remand. Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir.1994). Where there is no diversity between the parties, a defendant may remove a case if the plaintiff's claim arises under federal law within the meaning of 28 U.S.C. § 1331. La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 343-344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L. Ed. 2d 94 (1975). Plaintiff argues that this case is not removable, because all counts are grounded in state law. Plaintiff argues that "whether an action arises under federal law is determined by an examination of the claims as set forth in the complaint rather than the pleaded facts underlying them." Box Tree South, Ltd. v. Bitterman, 873 F. Supp. 833, 837 (S.D.N.Y.1995). "The well-pleaded complaint rule is the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1986). Defendant, Bell Atlantic-New Jersey, Inc. ("defendant"), argues that plaintiff's state law claim for breach of express and/or implied contracts to compensate her for accrued vacation time, and to provide her with collectively bargained-for wage increase, and her claim that defendant denied her certain STD and LTD benefits in violation of defendant's policies and practices are founded directly upon rights created by the applicable *357 collective bargaining agreement, and can be resolved only by interpretation of that collective bargaining agreement. Defendant alleges that therefore, these claims are preempted by Section 301 of the LMRA, 29 U.S.C. § 185. Defendant also contends that plaintiff's claim for breach of the covenant of good faith and fair dealing, which contains allegations regarding STD and LTD benefits, directly relates to employee benefit plans and is preempted by ERISA, and, as such arises under Section 502(a)(1)(B) of ERISA, 29 U.S.C. §§ 1132(a)(1)(B), of which the United States District Courts have original jurisdiction pursuant to 29 U.S.C. § 1132 and Sections 502(e) and (f) of ERISA, 29 U.S.C. § 1132(e) and (f), and, therefore, was properly removed. "One corollary of the well pleaded complaint rule developed in the case law ... is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64, 107 S. Ct. at 1546. "For twenty years, [the U.S. Supreme Court] has singled out claims pre-empted by § 301 of the LMRA for such special treatment." Id. at 64, 107 S. Ct. at 1546 (citing Avco Corp. v. Machinists, 390 U.S. 557, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (1968)). In referring to what is currently labeled the Avco principle, the Supreme Court held in Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., et al., 463 U.S. 1, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983) The necessary ground of the decision [in Avco] was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Id. at 23, 103 S. Ct. at 2854. This court first turns to the issue of preemption under § 301 of the LMRA. In Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), the Supreme Court held that [i]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted and federal labor-law principles ... must be employed to resolve the dispute. Id. at 405-406, 108 S. Ct. at 1881 (citing Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962)). Plaintiff alleges that defendant never provided her with her accrued vacation time for 1994 or for any time for which she may be entitled. Complaint ¶ 55. Furthermore, plaintiff alleges that defendant's failure to pay her for her accrued vacation time is in violation of defendant's policies and practices and constitutes a breach of express and/or implied contract. Id. at ¶ 56. Additionally, plaintiff alleges that she has been harmed as a result of defendant's actions. Id. at ¶ 57. Plaintiff also alleges that she never received the contract raise negotiated by the Union which became effective on May 21, 1995. Id. at ¶ 61. These allegations are set forth under both Counts Five and Six of plaintiff's complaint. Plaintiff argues that the CBA simply offers an alternative to an action under state law. Plaintiff admits that she included the loss of her payment for vacation time in her complaint, yet argues that this issue can be decided clearly as a breach-of-contract claim under state law. However, the contract relied upon is the CBA, see McCandless, 50 F.3d at 229, as plaintiff's claims for vacation benefits and the negotiated wage increase which became effective on May 21, 1995, are defined by the CBA. Affidavit of Joseph L. Agrusti ¶¶ 4-5. Therefore, this court must necessarily interpret those provisions to resolve plaintiff's claims. Plaintiff is indirectly requesting that this court determine whether there was a violation of the CBA and subsequently determine the outcome of plaintiff's state common law claim. Plaintiff's artful pleading will not prevent this court from finding that this claim is completely preempted by § 301 of the LMRA, as it is fundamentally based on an alleged violation of the CBA. *358 This court next turns to the issue of ERISA preemption. ERISA defines an "employee welfare benefit plan" as any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer, or by an employee organization, or by both, to the extent that such plan, fund, or program was established or maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in 29 U.S.C. § 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). 29 U.S.C. § 1002(1). The Third Circuit has held that the complete preemption doctrine applies only if two circumstances are met. First, "the statute relied upon by the defendant as preemptive [must] contain civil enforcement provisions within the scope of which the plaintiff's state claim falls." Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 311 (3d Cir.1994) (other citations omitted). Secondly, there must be "a clear indication of Congressional intention to permit removal despite the plaintiff's exclusive reliance on state law." Id. (other citations omitted). The analysis of these prerequisites to the ERISA preemption issue asserted by the defendant in the present case, was addressed by the Supreme Court in Metropolitan Life. The facts of Metropolitan Life forced the Supreme Court to resolve the question of "whether or not the Avco principle could be extended to statutes other than the LMRA in order to recharacterize a state law complaint displaced by § 502(a)(1)(B) as an action arising under federal law." Metropolitan Life, 481 U.S. at 64, 107 S. Ct. at 1547. Basing its holding on the similarity of language between § 301 of the LMRA and ERISA's civil enforcement provisions, as well as legislative history, the Supreme Court held that Congress clearly intended "to make § 502(a)(1)(B) suits brought by participants or beneficiaries, federal questions for the purposes of federal court jurisdiction in like manner as § 301 of the LMRA." Metropolitan Life, 481 U.S. at 66, 107 S. Ct. at 1547. The Court held that "Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of § 502(a) removable to federal court." Id. In Metropolitan Life, as in the instant case, the plaintiff filed suit against his employer alleging various state-law causes of action, including a claim he had been wrongfully denied disability benefits. The employer subsequently removed the case to federal court. The United States Supreme Court held that ERISA preempted the state common law cause of action for disability benefits, because the action "related to" an employee benefit plan under 29 U.S.C. § 1144. Id. at 62-63, 107 S. Ct. at 1545-46. The Court stated that the action was "necessarily federal in character" and thus was removable to federal court under 28 U.S.C. § 1441. Id. at 63, 107 S. Ct. at 1546. Count Six of the complaint is labeled "breach of the covenant of good faith and fair dealing." The Superior Court of New Jersey, Appellate Division set forth in East Penn Sanitation, Inc. v. Grinnell Haulers, 294 N.J.Super. 158, 682 A.2d 1207 (1996), that "`every contract' has `an implied covenant of good faith and fair dealing,' which `applies to the parties' performances and their enforcement of the contract.'" Id. at 170, 682 A.2d 1207 (other citations omitted). In the present case, plaintiff alleges that defendant's alleged failure to provide plaintiff with her accrued vacation time for 1995 and to provide payment for unused vacation time from 1994 resulted in a miscalculation which was in contradiction to defendant's own policies regarding the length of time an employee may receive full-time salary as set forth in the Bell Atlantic Sickness & Accident Disability Plan and Long Term Disability Plan ("Plan"). Complaint ¶ 60. See Plan at Exhibit "A" to Agrusti Certification. Furthermore, plaintiff alleges that if she had been given her net credited service, her disability *359 leave would have been extended at full pay for thirty-nine weeks and then half pay for an additional thirteen weeks. Complaint ¶ 60. Plaintiff also alleges under Count Six of the complaint that to this date she has been denied her disability benefits. Id. ¶ 65. Although plaintiff appears to set forth a state common-law claim under Count Six, this court finds that plaintiff has again artfully pled a claim which is in fact an ERISA issue. The state-law claim alleged under Count Six clearly involves the "recovery of benefits due under the terms of [the] plan," See Mints v. Educational Testing Serv., No. 95-3446, at 6, 1995 WL 907598, aff'd 99 F.3d 1253 (3d Cir.1996) and, "relates to" an employee benefit plan so as to make the action "necessarily federal in character" under 29 U.S.C. § 1144. See Metropolitan Life. Although plaintiff does not directly request that this court specifically enforce rights under the plan, her reliance on defendant's alleged failure to provide benefits due under the plan as a basis for her claim forces this court to determine whether defendant properly executed the ERISA plan. To that end, plaintiff is requesting that this court determine if any benefits are owing to her, and subsequently determine whether her claims will prevail. Therefore, this court finds that part one of the two-part test under Goepel has been met. Part two of the test has been addressed above, as Congress has expressed a clear intent to permit removal despite the plaintiff's exclusive reliance on state law. See Metropolitan Life. To the extent that plaintiff has alleged as a basis for Count Six of her complaint that defendant made errors in calculating the disability benefits to which she was entitled, her state common law claims are preempted by ERISA. In conclusion, this court finds that plaintiff's claims are preempted by the LMRA and ERISA and, therefore, "arise[] under the ... laws ... of the United States." 28 U.S.C. § 1331. Plaintiff's motion to remand is denied, as this case was properly removed to federal court by the defendants.

2013-10-30 06:32:43.274537+00

Brock

535 S.W.2d 861 (1976) Johnnie Lou HOLLEY, Appellant, v. Nana Lou Reeves MARKS, Appellee. Supreme Court of Tennessee. April 5, 1976. *862 Jack B. Henry, Pulaski, for appellant. David E. Cheatham, Pulaski, for appellee. OPINION BROCK, Justice. The plaintiff in this case, Johnnie Lou Holley, has a contingent remainder interest in the estate of Adlay Marks, who died on February 10, 1974. In his will, Marks left his entire estate to his wife, Nannie L. Marks, defendant, for her life, to be used "as she sees fit." Whatever remains at the death of Mrs. Marks is given by the will to Johnnie Lou Holley if she survive the life tenant. The only relief sought is that the plaintiff be allowed periodically to inspect the defendant's records to determine if she is exceeding her rights in the property by giving it away. Testamentary gifts for the use of a life tenant "as he sees fit" have been construed as conveying a life estate with power to dispose of the corpus at least to the extent necessary to provide support and maintenance to the donee. Redman v. Evans, 184 Tenn. 404, 199 S.W.2d 115 (1947); Jones v. Jones, 225 Tenn. 12, 462 S.W.2d 872 (1971). But the donee does not have the right to make a gift of the property. Black v. Pettigrew, 38 Tenn. App. 1, 270 S.W.2d 196 (1953). Even though a life tenant has been called a quasi trustee for the remaindermen, Morrow v. Person, 195 Tenn. 370, 259 S.W.2d 665 (1953), he has no duty to account for his use of the property. Vaden v. Vaden, 38 Tenn. 444 (1858). Security may be required, or in a proper case an equitable remedy may be granted, to prevent the life tenant from wrongfully defeating the remainder interest. Henderson v. Vaulx, 18 Tenn. 30 (1836). But the complainant who cannot demonstrate to the court's satisfaction that there is real danger of destruction of the estate is entitled to no relief. Downing v. Johnson, 45 Tenn. 229 (1867). In this record there is neither allegation nor proof that the defendant is dealing with the property in any manner not authorized by the will. Hence, no showing is made to justify the relief sought. The Chancellor was, therefore, correct in dismissing the complaint. Costs incurred in this Court will be borne by the plaintiff, Johnnie Lou Holley. FONES, C.J., and COOPER and HARBISON, JJ., concur. HENRY, J., not participating.

2013-10-30 06:32:43.304073+00

Walter

535 S.W.2d 371 (1976) Robert MALLORY et al., Appellants, v. DOROTHY PRINZHORN REAL ESTATE, INC., Appellee. No. 4874. Court of Civil Appeals of Texas, Eastland. March 11, 1976. *372 Larry S. Parnass, Irving, for appellants. William M. Jones, Dallas, for appellee. WALTER, Justice. Dorothy Prinzhorn Real Estate, Inc. recovered a summary judgment against Robert Mallory, individually, and Robert Mallory & Associates, Inc. plus attorney's fees. The defendants have appealed. Plaintiff negotiated a contract for the sale of real estate from William M. Jones to Libra Properties, Inc. In support of its motion for summary judgment, the plaintiff filed the affidavit of its President, Richard L. Clements. In its motion for summary judgment, the plaintiff says: "Defendant's original answer is insufficient to raise a controverted fact issue." The amendment to Rule 166-A, effective January 1, 1971, provides: "(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor." Plaintiff's motion for summary judgment does not comply with this amendment. In Mr. Clements' affidavit, he says, ". . . a copy of said contract having been heretofore filed in the above cause, and incorporated herein by reference." Attached to plaintiff's original petition we find a copy of the contract. Rule 166-A, T.R.C.P. provides: "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." No sworn or certified copy of the contract was attached to Mr. Clements' affidavit. In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), the court said: "We hold, however, that a compliance with Rule 166-A(e) required that the certified copies of the documents referred to should be attached to the motion. There were no papers, records or other documents from said Cause No. 58-68 attached to the motion by either sworn or certified copies. Since the matters referred to were court records, certified copies should have been attached to the motion; therefore, defendants had not complied with the provisions of Rule 166-A and were not entitled to a summary judgment." Mr. Clements' affidavit constitutes the only summary judgment proof offered in support of plaintiff's motion for summary judgment. He is president of the plaintiff corporation and is an interested witness. The general rule is that the testimony of an interested witness does no more than raise an issue of fact. There are exceptions to this rule which are not applicable. In Re, James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (1960). The judgment recites, "The court having also considered the evidence concerning attorney's fees, . . ." The only summary judgment evidence contained in the record is Mr. Clements' affidavit and there is no mention of attorney's fees. There is no indication in the record how this evidence on attorney's fees was presented. Oral testimony is prohibited by the summary judgment rule and the State Bar Minimum Fee Schedule is not conclusive. In Coward v. Gateway National Bank of Beaumont, 525 S.W.2d 857 (Tex.1975), the court said: "Article 2226, Vernon's Ann.Tex.Civ.St., authorizes the recovery of a reasonable amount as attorney's fees where certain types of claims are not paid or satisfied thirty days after presentment and judgment *373 is finally obtained thereon. The statute was amended in 1971 to add the following provisions: The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney's fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney's fees without the necessity of hearing further evidence. In our opinion the quoted provisions apply only in suits to establish one or more of the claims covered by the statute, and the fee suggested in the State Bar Minimum Fee Schedule is not conclusive even when there is no evidence to the contrary." The judgment is reversed and the cause remanded.

2013-10-30 06:32:43.318222+00

Schwelb

774 A.2d 1107 (2001) Bari MUHAMMAD, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Verizon Communications, formerly d/b/a/ Bell Atlantic, Washington, D.C., Inc., Intervenor. No. 00-AA-336. District of Columbia Court of Appeals. Argued June 7, 2001. Decided June 28, 2001. *1108 Bari Muhammad, pro se. Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent, District of Columbia Department of Employment Services. Donald P. Maiberger, Rockville, MD, for intervenor, Verizon Communications. Before SCHWELB and REID, Associate Judges, and MACK, Senior Judge. SCHWELB, Associate Judge: Bari Muhammad has asked this court to review a decision by the Director of the District of Columbia Department of Employment Services (DOES or the agency) denying him a "schedule award"[1] for a *1109 25% permanent disability of the "right upper extremity"[2] pursuant to D.C.Code § 36-308(3) (1997). Mr. Muhammad contends that the Director erroneously affirmed a compensation order previously issued by a DOES hearing examiner. We agree with Mr. Muhammad that certain findings by the hearing examiner that led to the denial of the schedule award were not supported by substantial evidence on the record as a whole. Accordingly, we vacate the agency's decision to the extent that it denies Mr. Muhammad a schedule award, and we remand the case to the agency for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND Mr. Muhammad has been employed by Verizon Communications and its predecessors, Bell Atlantic and C & P Telephone Company, since 1982. After having served as a security guard for a short period, Mr. Muhammad worked as a telephone service technician from 1982 until 1992. While employed in that capacity, he sustained two job-related injuries to his lower back, one in 1989 and one in 1990. As a result of these injuries, Mr. Muhammad was placed on permanent medical restrictions that made it impossible for him to continue to work as a service technician.[3] In 1992, he was reassigned to a position as a computer/keyboard operator. In that capacity, Mr. Muhammad spends a large portion of his workday responding, through the use of a computer keyboard and mouse, to telephonic complaints from customers. In the early 1990s, Mr. Muhammad began experiencing problems in both hands, including stiffness, numbness, tingling, reduced coordination, and dull, shooting pain. He did not seek treatment for this condition until April 1996, when his condition deteriorated, especially in his right hand. On April 12, 1996, Mr. Muhammad was diagnosed with bilateral carpal tunnel syndrome. Later in the same month, he informed his immediate supervisor of this diagnosis, and he explained its impact on his ability to perform his job. On May 28, 1996, Mr. Muhammad filed an Employee's Claim Application pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C.Code §§ 36-301 et seq. (1997 & Supp.2000), and he provided written notice to his employer on July 26 of the same *1110 year.[4] On December 12, 1996, following consultations with various doctors, both through his medical care providers at Kaiser Permanente and as requested by Verizon in connection with his compensation claim, Mr. Muhammad underwent carpal tunnel surgery on his right hand. He was released to return to work on January 20, 1997, although he continued thereafter to receive physical therapy. However, even following the surgery and physical therapy, Mr. Muhammad continued to experience problems and pain in his right hand. At the time of the hearing, on February 23, 1999, Mr. Muhammad was taking Motrin and using a wrist brace to control the symptoms on an as-needed basis. From time to time, he had to stop working, and he sometimes missed work altogether. At the February 23, 1999 hearing, Mr. Muhammad requested temporary total disability benefits from December 11, 1996 through January 23, 1997; wage loss benefits for approximately ten days intermittently between July and September 1998; a schedule award for a 25% permanent disability of the "right upper extremity" pursuant to D.C.Code § 36-308(3); and related medical costs. See also note 3, supra. In her compensation order, which was issued on June 30, 1999, the hearing examiner granted the requested relief in part. She awarded Mr. Muhammad temporary total disability benefits and intermittent wage loss benefits, offset against any wage loss benefits that Verizon had previously paid to Mr. Muhammad for the periods in question. The examiner also ordered Verizon to pay the related medical costs. The hearing examiner found, however, that Mr. Muhammad had not carried his burden of proving a "rateable impairment"[5] of his right hand and arm. Consequently, she denied Mr. Muhammad's request for a schedule award.[6] *1111 Mr. Muhammad filed an internal appeal to the Director in connection with the hearing examiner's ruling that he had not sustained a rateable impairment and was not entitled to a schedule award. On February 29, 2000, in a brief written opinion, the Director affirmed the compensation order. Mr. Muhammad now asks this court to review the Director's decision. II. STANDARD OF REVIEW Mr. Muhammad contends that the findings by the hearing examiner presently at issue were not supported by substantial evidence, and that the Director erred in adopting them.[7] We have held that the "Director is limited to substantial evidence review of a hearing examiner's decision." WMATA, supra note 5, 683 A.2d at 476. Substantial evidence review "presents an issue of law which this court is in a position to address without need for deference to the agency's decision." Id. (internal alteration, quotation marks, and citation omitted). To meet the substantial evidence standard, (1) the [hearing examiner's underlying] decision must state findings of fact on each material, contested factual issue; (2) those findings must be based on substantial evidence; and (3) the conclusions of law must follow rationally from the findings. Stewart v. District of Columbia Dep't of Employment Servs., 606 A.2d 1350, 1351 (D.C.1992) (citation omitted). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation marks and citations omitted). However, in making her factual findings, the "trier of fact" — in this case, the hearing examiner — "is entitled to draw reasonable inferences from the evidence presented." Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 108 (D.C.1985). III. SUBSTANTIAL EVIDENCE REVIEW The gravamen of Mr. Muhammad's argument to this court is that the hearing examiner's finding of no rateable impairment, and her resulting denial of the schedule award, were unsupported by substantial evidence. In reaching her conclusion, the hearing examiner "relied upon the findings, diagnosis[,] and conclusions in the medical reports of [Mr. Muhammad's] treating physicians at Kaiser Permanente." The examiner "rejected the opinion of William Launder, M.D., an orthopedic specialist who examined [Mr. Muhammad]... at the request of [Mr. Muhammad's] counsel," and who found that Mr. Muhammad suffered a 25% permanent disability to this right hand and arm.[8] The hearing examiner declined to adopt Dr. Launder's views because the doctor *1112 had based "his opinion regarding the percentage of permanent impairment largely upon [Mr. Muhammad's] reduced grip strength in his right hand." The examiner found the "reduced grip strength" analysis unconvincing because "the Kaiser physical therapy reports reflect [Mr. Muhammad's] lack of concern about grip weakness in April of 1997" and because Mr. Muhammad "also testified [that] he works out weekly at a gym, doing ten to fifteen pushups at a session." As an initial matter, we discern no substantial evidence supporting the hearing examiner's implicit finding that Mr. Muhammad's grip weakness did not contribute to any part of his permanent disability. The hearing examiner did not find — nor could she have found, see infra — that Mr. Muhammad did not suffer from grip weakness. Rather, she based her decision on her impression that "the Kaiser physical therapy reports reflect [Mr. Muhammad's] lack of concern about grip weakness in April of 1997." It is true that, in April 1997, Mr. Muhammad was less concerned about grip weakness than about the pain he continued to experience in his right hand. His greater concern with the pain that he was suffering did not, however, take the issue of grip weakness out of the case. The fact that pain caused even more distress than loss of strength is not "such relevant evidence as a reasonable mind might accept as adequate to support [the hearing examiner's] conclusion" that grip weakness could not form the basis for any permanent partial disability suffered by Mr. Muhammad. Stewart, supra, 606 A.2d at 1351. Although the April 1997 Kaiser Permanente report reveals that Mr. Muhammad understandably wanted to have his pain treated first, the same report identifies the achievement of increased strength in the patient's right grip as a goal of the continuing physical therapy. This report thus demonstrates that, at that very time, grip weakness problems were an ongoing medical concern. The Kaiser Permanente report is therefore consistent with, rather than contradictory to, Dr. Launder's finding that Mr. Muhammad suffered a significant permanent partial impairment as a result of continued grip weakness in his right hand. Under these circumstances, we conclude that the hearing examiner's determination that Mr. Muhammad did not suffer a rateable impairment based on grip weakness is not supported by substantial evidence on the record as a whole. The hearing examiner also based her partial denial of Mr. Muhammad's claim on his testimony that "he works out weekly at a gym, doing ten to fifteen push-ups at a session." The evidence regarding pushups, however, likewise fails to provide the requisite support for the hearing examiner's findings. Even if we were to assume that the ability to do push-ups negates the existence of grip weakness — and the record contains no substantiation of this not-at-all obvious proposition — Mr. Muhammad testified that although he exercises when he is feeling well enough, he does not go to the gym when he experiences substantial pain in his right hand. The compensation order contains no explanation of the examiner's apparent assumption that Mr. Muhammad's ability to do push-ups on days when his hand is not hurting is irreconcilable with the presence of a rateable impairment. We therefore conclude that the Director erred in affirming that aspect of the compensation order.[9] *1113 Even if Mr. Muhammad's grip weakness did not warrant a schedule award — and, as explained in the preceding discussion, we do not believe that the finding to that effect is supported by substantial evidence — there remains the question whether Mr. Muhammad's other symptoms, including the pain, tingling, reduced coordination, and general dysfunction of his right hand and arm, constitute a partial permanent disability entitling him to such an award. In Murrell v. District of Columbia Dep't of Employment Servs., 697 A.2d 40, 42 & n. 3 (D.C.1997), we declined to decide whether pain alone could support a schedule award, but we did not exclude such a possibility. Dr. Launder found Mr. Muhammad's loss of grip strength to constitute a 15% disability, but he also specifically stated that Mr. Muhammad suffered from a "5% impairment of the hand" due to "loss of [finger] motion" and that Mr. Muhammad's "pain, dysfunction, and loss of endurance" constituted another 5% permanent disability. Thus, quite apart from the weakness in Mr. Muhammad's grip, there was evidence that Mr. Muhammad suffered from an additional 10% permanent impairment. In her compensation order, the hearing examiner did not address the relevance of these additional symptoms, nor did she determine whether Mr. Muhammad has suffered a rateable impairment through them. The hearing examiner concluded that Mr. Muhammad had suffered "no rateable impairment of the right upper extremity," but she did not focus her inquiry on whether he had suffered an impairment, but a lesser one than he had argued for. (Emphasis added.) The hearing examiner's failure to address the other symptoms is particularly significant because the Kaiser Permanente reports on which she relied, and particularly the April 30, 1997 report emphasized in her order, are replete with documentation of Mr. Muhammad's complaints about the pain, numbness, reduced coordination, and general dysfunction in his right hand.[10] Mr. Muhammad testified to the same effect. In our view, the evidence on which the hearing examiner professed to rely in reaching her conclusion on the rateable impairment issue supports, rather than contradicts, Dr. Launder's report with respect to Mr. Muhammad's symptoms. In sum, the hearing examiner also failed to address Mr. Muhammad's claim that he suffered from conditions, other than the loss of grip strength, that entitled him to a schedule award based on a rateable impairment. The record therefore compels us to conclude that the hearing examiner's order did not "state findings of fact on each material, contested factual issue," Stewart, supra, 606 A.2d at 1351, by failing to address Mr. Muhammad's other symptoms, such as pain, dysfunction, and loss of mobility, as a possible basis for a schedule *1114 award. For that reason, as well, the challenged portions of the compensation order are not supported by substantial evidence. IV. CONCLUSION For the foregoing reasons, we conclude that the Director erred in affirming the hearing examiner's order, in which the examiner found that Mr. Muhammad did not suffer from a rateable impairment, and in which the examiner denied Mr. Muhammad's request for a schedule award. We therefore vacate the agency's decision and remand the case for further proceedings consistent with this opinion. So ordered. NOTES [1] A "schedule award" pursuant to D.C.Code § 36-308(3) (1997) is an award designed to compensate an employee who has suffered a permanent partial disability, that is, a disability that does not result in the loss of two hands, arms, feet, legs, or eyes and that does not prevent the employee from "earn[ing] any wages in the same or other employment." D.C.Code § 36-308(1) & (3). The statute enumerates a list of injuries, e.g., the loss of an arm or a hand, id. § 36-308(3)(A) & (C), and specifies the amount of disability compensation (i.e., the "schedule award") to which an employee suffering from that partial disability is entitled. Thus, the loss of an arm entitles the employee to an award of "662/3 % of the employee's average weekly wages" multiplied by "312 weeks' compensation"; the loss of a hand results in an award of 662/3 % of those wages multiplied by "244 weeks' compensation." Id.; see also Harris v. District of Columbia Dep't of Employment Servs., 746 A.2d 297, 300 (D.C.2000) (explaining award mechanism). [2] This rather ponderous term appears to have been used during the administrative proceeding to describe Mr. Muhammad's hand, wrist and arm. [3] On March 19, 1999, as a result of the injuries to his back, Mr. Muhammad was awarded continuing permanent partial disability wage loss benefits for a period beginning on September 22, 1993. He received this award in a second proceeding independent from the one presently under review. The proceeding relating to the back injuries is relevant to the present case only insofar as the hearing examiner here ordered that the temporary total disability benefits that she awarded Mr. Muhammad in this case were to be offset against any wage loss benefits that the employer had already paid him for the same time periods. The Director affirmed this decision, and Mr. Muhammad has not asked us to review this aspect of the affirmed order. [4] The hearing examiner concluded that Mr. Muhammad "knew, or should have known, [when he was diagnosed with carpal tunnel syndrome on April 12, 1996 that] his right hand symptoms were related to his work duties of typing information using a computer keyboard." Mr. Muhammad did not provide written notice of his injury to Verizon until more than three months after this diagnosis, thereby failing to comply with the notice requirements of D.C.Code § 36-313 (1997). That section requires that the claimant provide the employer and the Mayor with written notice of an employment-related injury within "30 days after the employee ... is aware or... should have been aware of a relationship between the injury ... and the employment." Id. § 36-313(a) & (b). The hearing examiner found, however, that Verizon acquired actual knowledge of Mr. Muhammad's injury and of its relation to his employment in late April 1996, when Mr. Muhammad informed his immediate supervisor of the relevant facts. Because Verizon had actual knowledge, it was not prejudiced by Mr. Muhammad's failure to give timely written notice. D.C.Code § 36-313(d)(1). Verizon has not challenged the agency's resolution of this issue. [5] A "rateable impairment" results where an employee suffers a partial disability, see supra note 1, not in the form of a lost "member" (i.e., a limb, an eye, or other essential body part), but in the form of some permanent "partial ... loss of use of a member." D.C.Code § 36-308(3)(S). An employee suffering from such a partial loss is entitled to "[c]ompensation ... for proportionate ... loss of use of the member." Id. Thus, if Mr. Muhammad had been awarded a 20% rateable impairment of his "right upper extremity," as he requested, he would have received a schedule award equal to 20% of the award for total loss of that member. Id. § 36-308(3); see also Washington Metro. Area Transit Auth. (WMATA) v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 473 & n. 2 (D.C.1996). [6] The hearing examiner also found that Mr. Muhammad did, in fact, suffer from carpal tunnel syndrome, that Verizon had introduced insufficient evidence to rebut the statutory presumption that this condition arose out of Mr. Muhammad's employment, D.C.Code § 36-321(1) (1997), and that Mr. Muhammad had provided Verizon with timely notice of the injury, see supra note 4. None of these findings has been challenged either before the agency or in this court. [7] In his pro se brief, Mr. Muhammad consistently refers to and challenges the hearing examiner's order, without focusing on the Director's affirmance of that order. Because "it is the Director's final decision, not the examiner's, which may be reviewed in this court," however, we treat Mr. Muhammad's argument as applying to the Director's affirmance of the hearing examiner's order. WMATA, supra note 5, 683 A.2d at 472 (internal quotation marks and citation omitted). [8] The hearing examiner was also unpersuaded by a medical evaluation prepared by a physician selected by Verizon, who insisted that Mr. Muhammad had never suffered from carpal tunnel syndrome. [9] In addition, the Director apparently concluded that the hearing examiner was faced with "competing expert medical opinions" in reaching her conclusion concerning the schedule award. As we have demonstrated in the preceding discussion, the record does not bear this out. [10] The April 30, 1997 report notes that Mr. Muhammad "is concerned about the pain he has in his [right] hand" and that that pain causes him problems with typing and with moving the "mouse." A November 30, 1998 report by a Kaiser Permanente physician notes that Mr. Muhammad suffered pain in his right hand and that he had endured "numbness and pain in his hands for five years," with the symptoms having recurred following the carpal tunnel release surgery. At the hearing, Mr. Muhammad testified that he continued to experience pain and stiffness in his hand. His symptoms sometimes caused him to have to stop typing, and they caused him to work more slowly than the three-minute-per-call standard set for Verizon customer service representatives. Indeed, he testified that on several occasions, his condition compelled him to take consecutive days off from work.

2013-10-30 06:32:43.335202+00

Howard

955 F. Supp. 1076 (1996) UNITED STATES of America, Appellee, v. Harry James SAUL, Ronny Snead, Appellants. Nos. LR-CR-95-97(2), LR-CR-95-134(1). United States District Court, E.D. Arkansas, Western Division. October 2, 1996. William C. Adair, Asst. U.S. Atty., Little Rock, AR, for U.S. Brad J. Beavers, Sharpe, Beavers & McGill, Forrest City, AR, Timothy O. Dudley, Little Rock, AR, for Appellants. ORDER GEORGE HOWARD, Jr., District Judge. Appellants, Harry James Saul and Ronny Snead, appeal their convictions by the Magistrate Judge of violation of 7 U.S.C. § 136j(a)(2)(G) and 18 U.S.C. § 2. Harry James Saul is part owner and operator of Harry Saul Minnow Farm, Inc.; Ronny Snead is an employee of the minnow farm. Appellants were convicted of using a restricted pesticide in a manner inconsistent with the label on the pesticide. The Court will uphold the Magistrate Judge's factual findings unless clearly erroneous, but reviews his application of those facts to the law de novo. United States v. Rollins, 706 F. Supp. 742, 743 (D.Idaho 1989). See Fed. R.Crim. Pr. 58(g). The parties filed stipulations of fact in the case. They establish the following: On August 31, 1992, Saul purchased five gallons of Furadan 4F insecticide-nematicide, for the purpose of killing blackbirds and white egrets. Furadan 4F is a restricted use pesticide. Saul and Snead, thereafter, caused on one or more occasions, Furadan 4F to be mixed with a gallon of water in a five gallon bucket containing minnows. These minnows, along with grain, corn chops, that had been treated *1077 with Furadan were spread on a levee on the minnow farm for the purpose of killing blackbirds and white egrets. On or about April 8, 1993, a Special Agent with the United States Department of the Interior, Fish and Wildlife Service, along with the assistance of two Refuge Officers, discovered on the lands of the minnow farm three piles of minnows, a dead possum, two or three dead raccoons, a dead great horned owl, and lots of dead blackbirds on the shore of one of the minnow ponds or close to it. Analysis of the dead animals revealed that they contained carbofuran. An Amended Information filed on July 27, 1995, charged appellants with using or causing to be used a restricted use pesticide, Furadan 4F, an insecticide consisting of the chemical carbofuran, to be used as a poisoned bait to be placed on levees adjacent to minnow ponds to kill birds and mammals that prey upon minnows in the ponds, and to fish tanks to kill undesirable fish. The labeling on Furadan 4F containers advises of environmental hazards and warns: It is a violation of federal law to use this product in a manner inconsistent with its labeling. The Magistrate Judge found appellants' conduct violated the statutes and imposed fines on each of the appellants. Appellants argue that the term "inconsistent with the label" means that the conduct which the label specifically prohibits. Thus, according to appellants, the statute does not prohibit use of a pesticide to eradicate pests not mentioned on the label. If such meaning is given the terms, then appellants argue that their conduct did not violate the statute. Furadan 4F is a restricted use pesticide. See 7 U.S.C. § 136a(d) Its use is restricted to only those uses specifically permitted by its approved label and supplement. "The term `to use any registered pesticide in a manner inconsistent with its labeling' means to use any registered pesticide in a manner not permitted by the labeling ..." 7 U.S.C. § 136(ee) (emphasis added). The statute then lists six exceptions, none of which apply in this case. The Magistrate Judge found, after reviewing the label and supplement, that appellants' conduct was not permitted by the label. The Court agrees with the Magistrate Judge's finding and with his interpretation of the statute. There can be no doubt that appellants used the pesticide in a manner inconsistent with its labeling. Appellants used the pesticide to kill blackbirds and egrets. The pesticide is labeled as an insecticide nematicide.[1] Nowhere does the label permit use of the pesticide as a chemical to control birds. Appellants also mixed and applied the pesticide in a manner inconsistent with the label. Furadan 4F is an extremely toxic poison whose use is restricted to a diluted mixture as provided on its label for the control of insects and pests listed on the label. Appellants' indiscriminate use of this pesticide violates 7 U.S.C. § 136j(a)(2)(G). Furthermore, adoption of appellants' analysis that the statute is a "prohibited use" statute is contrary to the plain language of the statute which speaks in terms of "permitted use" and contrary to the legislative purpose. Accordingly, the convictions and sentenced imposed by the Magistrate Judge are affirmed. NOTES [1] An insecticide is a chemical used to control insects. A nematicide, is a chemical used to control nematodes, which are small, slender colorless roundworms that live saprophytically in soil or water or as parasites of plants, animals, or fungi." See Exhibit 16, Glossary)

2013-10-30 06:32:43.344402+00

Billings

535 S.W.2d 110 (1976) CHRYSLER CREDIT CORPORATION, Plaintiff-Respondent, v. FRIENDLY FORD, INC., Defendant-Appellant. No. 9740. Missouri Court of Appeals, Springfield District. February 10, 1976. Motion for Rehearing or Transfer Denied March 1, 1976. David W. Bernhardt, Thomas J. O'Neal, Bussell, Hough, Bernhardt, Leighton & O'Neal, Springfield, for plaintiff-respondent. John R. Lewis, Bruce K. Kirby, Kirby, Lewis & Cohick, Springfield, for defendant-appellant. *111 Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ. Motion for Rehearing or Transfer to Supreme Court Denied March 1, 1976. BILLINGS, Chief Judge. Respondent Chrysler Credit Corporation had judgment in this court-tried case against appellant Friendly Ford, Inc. for the balance due on a retail installment contract. The contract had been assigned by Friendly Ford to Chrysler Credit with full recourse, and Friendly Ford had unconditionally guaranteed payment of any unpaid indebtedness under the contract. The lower court also allowed Chrysler Credit attorney fees as provided by the contract and ruled in its favor on Friendly Ford's counterclaim for damages. We affirm. Chrysler Credit maintained a branch office in Springfield, and Friendly Ford sold automobiles and trucks in that city. For some time prior to the sale giving rise to the subject installment contract, Chrysler Credit had financed installment sales by Friendly Ford. Friendly Ford sold a 1968 Ford diesel tractor to William Richardson under a retail installment contract dated March 29, 1968. The contract was assigned to Chrysler Credit by Friendly Ford on the same date. A policy of insurance covering the vehicle against physical damage had been issued the previous day, March 28, 1968. Richardson was the named insured, and Chrysler Credit was shown as lien holder and loss payee. The policy was for the period of March 28, 1968, to March 28, 1969, and both Chrysler Credit and Friendly Ford were notified of the insurance coverage. The certificate of insurance was subsequently forwarded to Chrysler Credit by the insurance company. On April 9, 1969, Chrysler Credit received an endorsement of a policy issued by a second insurance company insuring the vehicle against loss or casualty. Richardson was described as owner of the tractor, and Chrysler Credit was shown as the loss payee. This second policy was for the period of July 1, 1968 to July 1, 1969. Friendly Ford was not notified of the issuance of the second policy. On December 17, 1969, Richardson executed an extension agreement to Chrysler Credit whereby, for an additional charge, his monthly payments due under the contract were postponed until March, 1970. This transaction was approved by Friendly Ford. The Ford tractor, uninsured, was damaged beyond repair in June, 1970. Richardson was then current in his monthly payments but thereafter discontinued payments. Chrysler Credit notified Friendly Ford of Richardson's nonpayment and demanded payment of the balance owing under the contract. Friendly Ford obtained possession of the damaged tractor and by consent of the parties to this suit sold it for salvage; the amount received was applied on the indebtedness. Friendly Ford refused to pay the balance of the contract, and this suit followed. The installment contract provided Richardson was to insure the vehicle against loss or damage during the life of the contract. In paragraph 3 of the "Additional Terms and Conditions" of the contract, the failure of Richardson to procure or maintain the requisite insurance was one of several enumerated occurrences that constituted a default under the contract and authorized foreclosure. In addition, paragraph 7 provided: "Buyer agrees to keep the mortgaged property insured at his own expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on the contract, with loss payable to the Seller as its interest may appear and that he will deliver all such insurance policies upon receipt of same to Chrysler Credit Corporation. . . . Seller may, but shall not be required to, and without prejudice to Seller's rights under this mortgage if it does not, procure such vehicle insurance protecting: (a) interest of Buyer and Seller or (b) interest of Seller only, if Buyer fails to procure or maintain such vehicle insurance or fails to furnish satisfactory evidence thereof upon request. . . ." (emphasis added) *112 The assignment portion of the contract provided in part as follows: "For value received, the undersigned does hereby sell, assign and transfer to Chrysler Credit Corporation (hereinafter called `Chrysler') his, its or their entire right, title and interest in and to the within contract and the property covered thereby, and authorizes Chrysler to do every act and thing necessary to collect and discharge obligations arising out of or incident to said contract and assignment.. . . In addition, this assignment is subject to the provisions set out below in the paragraph initialed by undersigned. Liability of undersigned arising out of or incident to this assignment shall not be affected by any indulgence, compromise, settlement, extension, or variation, of terms of the within contract effected with or by the discharge or release of the obligation of Buyer or any other person interested, by operation of law or otherwise. Undersigned waives notice of acceptance of this assignment and notices of non-payment and non-performance of this contract." (emphasis added) Immediately following the foregoing was the form of recourse agreed to by the parties and it is here set forth: "FULL RECOURSE: The undersigned unconditionally guarantees payment of the full amount remaining unpaid under said contract, and agrees to purchase said contract from Chrysler, upon demand, for the full amount then unpaid whether said contract shall then be, or not be, in default." By way of defense and in support of its counterclaim for expenses, Friendly Ford set forth the first sentence of paragraph 7, supra, and then alleged: "That from the date of the alleged assignment by defendant to plaintiff, William D. Richardson, the person obligated on the contract alleged to have been assigned, did have a policy of insurance protecting the lien holder against property damage and did apparently maintain said policy of insurance for a period of time after the date of the alleged assignment; that, thereafter, the policy of insurance insuring the property on which the indebtedness is owed to be lapsed and was not renewed by the owner of the property or the plaintiff lien holder to where on the date of the loss of the property there was no insurance existing on the property covered by the Retail Installment Contract alleged to have been assigned by Defendant to Plaintiff; that because of Plaintiff's failure to maintain the contract in question between itself as the lien holder and as the alleged assignee of said contract, Plaintiff should be estopped from recovering any damage in any amount of money from the defendant under the terms of its Petition." At trial Chrysler Credit submitted its case on stipulations and exhibits including the Richardson retail installment contract, and Friendly Ford offered testimony only on the issue of its claimed defense of estoppel. The trial court made and entered findings of fact and conclusions of law and rendered judgment in favor of Chrysler Credit on its claim and against Friendly Ford on its counterclaim. Three elements must be clearly established by a party seeking to assert an equitable estoppel: (1) an admission, statement or act inconsistent with a claim afterwards asserted or sued upon; (2) action by the other party in reliance on such admission, statement or act; and, (3) injury to such other party if the first party is allowed to contradict or repudiate such admission, statement or act. Peerless Supply Co. v. Industrial Plumbing and Heating Co., 460 S.W.2d 651 (Mo.1970); Owens v. Estate of Saville, 409 S.W.2d 660 (Mo.1966); Rodgers v. Seidlitz Paint and Varnish Co., 404 S.W.2d 191 (Mo.1966); 31 C.J.S. Estoppel § 67 (1964). Silence or inaction may be sufficient conduct to estop a party from asserting an inconsistent claim. However, "[T]he rule is equally clear that mere innocent silence or inaction will not work an estoppel. . . . there must be a right and an opportunity to speak and, in addition, an obligation or duty to do so." 28 Am.Jur.2d Estoppel & Waiver § 53 at 667-68 (1966). And, the estopped party's silence or inaction must be the result of culpable negligence or "done with the intention, or, at least, with the expectation, *113 that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon." Mills v. Taylor, 270 S.W.2d 724, 729 (Mo.1954); Rodgers v. Seidlitz Paint & Varnish Co., 404 S.W.2d 191, 195-96 (Mo.1966); 31 C.J.S. Estoppel §§ 59, 69, 87, 102 (1964); 28 Am.Jur.2d Estoppel & Waiver §§ 41, 53, 61 (1966). Each of the elements of estoppel was considered by the trial judge who concluded the contract placed no duty on Chrysler Credit to insure the vehicle and there was no estoppel. We agree. The retail installment contract gave Friendly Ford, or its assignee, the authority to procure insurance at Richardson's expense "if Buyer fails to procure or maintain such vehicle insurance or fails to furnish satisfactory evidence thereof upon request." However, the duty to maintain insurance remained on Richardson, and the contract specifically provides Friendly Ford or its assignee "shall not be required to" exercise its power to acquire insurance if Richardson failed to do so. The option to acquire insurance was assigned to Chrysler Credit, together with the rest of Friendly Ford's rights under the contract. In its assignment Friendly Ford expressly agreed its liability to Chrysler Credit, "arising out of or incident to [the] assignment shall not be affected by any indulgence, compromise, settlement, extension, or variation, of terms of the within contract effected with or by the discharge or release of the obligation of Buyer or any other person interested, by operation of law or otherwise" and specifically waived "notices of non-performance of the contract." By the full recourse provision of the assignment, Friendly Ford unconditionally guaranteed payment of any remaining indebtedness under the contract and agreed to repurchase the contract upon demand from Chrysler Credit "whether said contract shall then be, or not be, in default." Friendly Ford contends that since Chrysler Credit made efforts to monitor policies on financed vehicles and had the right under the contract to purchase insurance at Richardson's expense, the loss occasioned by lack of insurance should fall on Chrysler Credit. This contention would convert the option to insure into an absolute duty, contrary to the plain and unequivocal language found in the contract and agreed to by Friendly Ford. The record is completely silent as to the reason for no insurance coverage at the time of the loss. We do not know if the policy lapsed for nonpayment of premium or if it was canceled by the insurer for any number of reasons. The fact of the matter is that there is no evidence of notice to Chrysler Credit that coverage had lapsed or was terminated. There is no evidence Chrysler Credit misled Friendly Ford, and the latter had equal opportunity to learn the fact of noninsurance. If Chrysler Credit can be faulted for its failure to learn the vehicle was not insured, Friendly Ford can be equally faulted. There is some indication in the record Friendly Ford was aware that on previous occasions Chrysler Credit had not exercised the option to insure, resulting in no coverage on financed vehicles. In spite of its liability under the assignment, Friendly Ford made no inquiry or effort to determine whether the Richardson truck was insured. In such circumstances, estoppel cannot be successfully asserted. 31 C.J.S. Estoppel §§ 71, 87, 102 (1964); 28 Am.Jur.2d Estoppel & Waiver §§ 35, 80 (1966). In this appeal Friendly Ford, for the first time, seeks to invoke § 400.3-606, RSMo 1969,[1] and says Chrysler Credit's failure to exercise the option to insure constitutes an unjustifiable impairment of collateral. This affirmative defense was not *114 pled by Friendly Ford or submitted below. It cannot now be raised. Rule 55.08; Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256 (Mo.App.1975); Forty Four O One Hampton Realty Co. v. Keegan, 426 S.W.2d 701 (Mo.App.1968). Furthermore, we entertain doubt that the instant retail installment contract is a negotiable instrument as defined by the Uniform Commercial Code [§ 400.3-104, RSMo 1969] because of the numerous promises made and powers granted by Richardson.[2] Consequently, the discharge provisions of § 400.3-606 would not be available to Friendly Ford. Additionally, § 400.3-606 recognizes consent may bar such a defense, and Friendly Ford's argument ignores the broad consensual language of its assignment to Chrysler Credit. As assignor, Friendly Ford consented that its liability to Chrysler Credit would not be altered by any "indulgence, compromise, settlement, extension, or variation of" the contract or "by the discharge or release of [Richardson] or any other person interested" and Chrysler Credit was relieved of any duty to notify Friendly Ford of Richardson's nonperformance of the contract. The same result would follow if Friendly Ford had sought discharge under § 400.9-207,[3] RSMo 1969, or under the principles of general suretyship law.[4] The sweeping assignment clause negates Friendly Ford's claim of release from the full recourse provisions.[5] We are not unaware of at least three cases which have implied a duty on a secured creditor such as Chrysler Credit to *115 either insure or notify one in the position of Friendly Ford of insurance lapse or termination.[6] In each of these cases the secured creditor had in fact been notified by the insurance carrier the policy of insurance was about to expire or be cancelled and the secured creditor failed to notify the assignor or procure other insurance. The known insolvency of the debtor was present in two of the cases.[7] The cases do not reflect an assignment clause such as in the case at bar. Other cases have refused to imply and cast such an onerous duty on secured creditors.[8] In Commerce Union Bank v. May, 503 S.W.2d 112 (Tenn.1973), the court said: "We do not agree that [Bank's] presumed superiority of experience and knowledge of. . . transactions over defendants' created a legal duty to see that the fire insurance was renewed. To so hold would be to set an unjustifiable precedent, the consequences of which would be unpredictable and chaotic. Nor does the mere possession of the memorandum of the insurance policy upset the equal opportunity of the defendants and [Bank], in the eyes of the law, to know or ascertain the date of policy expiration.. . . Further, the provision in the note whereby the Bank relieved itself of all liability to perform services, send notices or take action of any kind in connection with the management of the security, operates as a complete bar of the right . . to claim discharge, that claim being based upon an asserted duty to perform said acts." 503 S.W.2d at 118. We affirm the judgment of the trial court. All concur. NOTES [1] Section 400.3-606, RSMo 1969, provides in part: "(1) The holder discharges any party to the instrument to the extent that without such party's consent the holder * * * * * * (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse." [2] Section 400.3-104, RSMo 1969, requires that a negotiable instrument within Article 3 (§ 400.3-101 et seq., RSMo 1969) must "contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article." (emphasis added) Retail installment sales contracts are usually not negotiable instruments because they contain additional promises by the maker "and thus fail the `no other promise' test." J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code §§ 13-2, 14-4 (1972). [3] Section 400.9-207, RSMo 1969, provides in part: "(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed. (2) Unless otherwise agreed, when collateral is in the secured party's possession (a) reasonable expenses (including the cost of any insurance and payment of taxes or other charges) incurred in the custody, preservation, use or operation of the collateral are chargeable to the debtor and are secured by the collateral; (b) the risk of accidental loss or damage is on the debtor to the extent of any deficiency in any effective insurance coverage; * * * * * * (3) A secured party is liable for any loss caused by his failure to meet any obligation imposed by the preceding subsections but does not lose his security interest." [4] Restatement of Security § 132 (1941) states: "Where the creditor has security from the principal and knows of the surety's obligation, the surety's obligation is reduced pro tanto if the creditor (a) surrenders or releases the security, or (b) wilfully or negligently harms it, or (c) fails to take reasonable action to preserve its value at a time when the surety does not have an opportunity to take such action." [5] Examples of pre-code cases recognizing that a surety or guarantor may consent to release or impairment of collateral include Joe Heaston Tractor & Implement Co. v. Securities Acceptance Corp., 243 F.2d 196 (10th Cir. 1957); Barrett v. Shanks, 382 Ill. 434, 47 N.E.2d 481 (1943); and Merchants Nat'l Bank v. Stone, 5 N.E.2d 430 (Mass.1936). Cases decided under the code which recognize the validity of the surety's consent to release or impairment of collateral include: Liberty Nat'l Bank & Trust Co. of Savannah v. Interstate Motel Developers, Inc., 346 F. Supp. 888 (S.D.Ga.1972); Nation Wide, Inc. v. Scullin, 256 F. Supp. 929 (D.N.J.1966); Etelson v. Suburban Trust Co., 263 Md. 376, 283 A.2d 408 (1971); American Bank of Commerce v. Covolo, 88 N.M. 405, 540 P.2d 1294 (1975); see also Midway Nat'l Bank v. Gustafson, 282 Minn. 73, 165 N.W.2d 218 (1968). See also Clark, Suretyship in the Uniform Commercial Code, 46 Tex. L. Rev. 453 (1968); Murray, Secured Transactions—Defenses of Impairment and Improper Care of Collateral, 79 Com.L.J. 265 (1974); Note, Discharge of Sureties—Impairment of the right of Recourse, 9 B.C.Ind. & Comm.L.Rev. 970 (1968). [6] United States v. Fyles, 253 F. Supp. 386 (D.Vt. 1965); Evans v. American National Bank and Trust Co. of Chattanooga, Tenn., 116 Ga.App. 468, 157 S.E.2d 816 (1967); Woodruff Motors, Inc. v. Commercial Credit Corp., 123 Vt. 404, 190 A.2d 705, and 124 Vt. 37, 196 A.2d 569 (1963); see also Liberty National Bank and Trust Co. of Savannah v. Interstate Motel Developers, Inc., 346 F. Supp. 888 (S.D.Ga.1972). [7] United States v. Fyles, supra; Evans v. American National Bank and Trust Co. of Chattanooga, Tenn., supra. [8] E. G. Milburn v. People's Building & Loan Association, 106 Ark. 415, 153 S.W. 605 (1913); Hassell v. Sterling Federal Savings & Loan Association, 132 Ill.App.2d 1005, 271 N.E.2d 7 (1971); Rayborn v. Fort Thomas Building & Loan Association, 453 S.W.2d 558 (Ky.1970); Service Finance Corp. v. Brombaugh, 135 S.W.2d 503 (Tex.Civ.App.1939); 10 Williston on Contracts § 1233 (3d ed. 1967).

2013-10-30 06:32:43.383987+00

Kaufman

955 F. Supp. 526 (1997) Susan CAMPBELL, Plaintiff, v. Jeffrey MASTEN, et al., Defendants. Civil No. K-96-2754. United States District Court, D. Maryland. March 11, 1997. Roy L. Mason and Natasha Sethi Wesker, Baltimore, MD, for Plaintiff. Stephen M. Silvestri and Mark T. Mixter, Baltimore, MD, and Richard A. DeTar, Easton, MD, for Defendants. MEMORANDUM AND ORDER FRANK A. KAUFMAN, Senior District Judge. (1) Reference is hereby made to Defendants' Motion to Dismiss or in the Alternative *527 Motion for Summary Judgment with regard to plaintiff's Complaint and Amended Complaint. Defendants' motion with regard to plaintiff's original Complaint was filed on October 15, 1996, and defendants' motion with regard to plaintiff's Amended Complaint was filed on January 3, 1997. Plaintiff's Amended Complaint is substantially similar to her original Complaint with the singular addition of a state law cause of action for wrongful discharge. Additionally, this Court has read and considered the plaintiff's Motion for Voluntary Dismissal of her state law claims, and the defendant's opposition to that motion. For the reasons stated in this Memorandum and Order, this Court will grant the defendants' motion to dismiss each and all of plaintiff's federal claims, and will not exercise supplemental jurisdiction over the remaining state law claims of plaintiff. Consequently, this Courts grants the plaintiff's Motion for Voluntary Dismissal. (2) Plaintiff, Susan Campbell ("Campbell") filed her original Complaint on September 9, 1996 in which she alleged both federal and state claims against Jeffery Masten ("Masten") and the Wildlife International, Ltd. ("Wildlife"), her former employer. In particular, plaintiff brings, in Counts One, Two and Three of her Complaint, claims of sex discrimination, quid pro quo sexual harassment, and hostile work environment discrimination, solely against Wildlife, and all based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). This Court's jurisdiction for this suit against Wildlife and Masten is based on those Title VII claims. Further, in Counts Four, Five, Six, Seven, Eight, and Nine, plaintiff alleges that both defendants participated in conduct that constitute the state law claims of intentional infliction of emotional distress, negligent selection, supervision and retention, false light, tortious interference with prospective advantage, wrongful discharge, and civil conspiracy respectively. (3) The record in this case contains only one item other than pleadings, i.e., the affidavit of Joann B. Beavers, Campbell's supervisor, offered by the defendants in connection with their defense of plaintiff's tortious interference claim. Therefore, the Court will evaluate each of plaintiff's federal claims against the standards applicable to a motion to dismiss. When considering the merits of a motion to dismiss a complaint for failure to state a claim, the district court is required to treat all well-pleaded allegations as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848-49, 23 L. Ed. 2d 404 (1969). The district court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). This Court gave the plaintiff an opportunity to make a case for discovery in order to resist the defendants' motions. The plaintiff has declined to request discovery, and has requested that all of the state claims in this case be dismissed without prejudice. Accordingly, this Court will evaluate defendants' motions with regard to plaintiff's federal claims on the basis of the record in this case to date. (4) Campbell was employed by Wildlife frown 1989 through July 5, 1995. Campbell worked first as a research biologist, and then as a study director until her termination. Campbell's manager at Wildlife was Joann Beavers ("Beavers"). It appears from the Complaint filed in this case, that Campbell entered a consensual sexual relationship with Masten in February of 1993, shortly after Masten began working at Wildlife as Director of Quality Assurance, in November of 1992. In March, 1993, Campbell received a $5,000 raise. Campbell alleges Masten claimed responsibility for that raise, had supervisory authority over her, and attached "unspoken expectations" to her receipt of this raise. (Am. Compl. ¶ 10.) Beavers, in her affidavit filed in this case, proffers that she was Campbell's supervisor from February, 1993 through her termination on July 5, 1995, and that she was solely responsible for supervising, and evaluating the performance of Campbell. (Beavers Aff. ¶ 3; see also, Am. Compl. ¶¶ 14-15.) In July of 1993, Masten broke off the sexual relationship between Campbell and *528 himself, and became engaged to another woman. After the Masten-Campbell relationship came to an end, Campbell alleges Masten became critical of her work in front of her co-workers, and that his "criticism and ridicule made their way to Ms. Campbell's direct manager, Joann B. Beavers." (Am. Compl. ¶¶ 12, 14.) Campbell further asserts that she was asked to resign by Beavers due to a dispute regarding her performance, and subsequently fired by Mark Jaber and Curt Hutchinson, the co-owners of Wildlife. (Am. Compl. ¶¶ 15, 16.) Campbell asserts that her termination was causally connected to Masten's criticism, who was motivated to force her from Wildlife due to his fear that "his wife would find out that he had been sexually involved with Campbell at the time of their engagement." (Am. Compl. ¶ 17.) (5) In order to advance a claim of sex/gender discrimination, separate and apart from plaintiff's sexual harassment claims, plaintiff must at least allege significant acts which, if proven, would demonstrate that the defendant, in this case Wildlife, treated her in a disparate fashion on the basis of gender. Balazs v. Liebenthal, 32 F.3d 151, 155 (4th Cir.1994). Title VII unequivocally prohibits "discrimina[tion] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). In this case, Campbell states no facts which if taken as true create a causal connection between her gender as such and any ill will demonstrated by her supervisors. Nowhere is it alleged that Campbell was treated differently than her co-workers, on the basis of gender. Instead, Campbell argues she suffered ill treatment and was subsequently terminated because Masten perceived her as a threat to his marriage, and that due to Masten's close relationship with various members of Wildlife management, Wildlife management retaliated against Campbell for her involvement with Masten. She states, "[c]learly, she would not be perceived as such a threat had he not initiated an affair with her, and he would not have done that but for her gender as a female." (Pl.'s Opposition to Def's Mot. to Dismiss at 5.) This Court agrees that Masten's affair with Campbell, and subsequently, his apparent antipathy for her are indeed premised on the underlying fact that Campbell is a woman, given his apparent heterosexuality. Campbell's status as a woman, however, is only the foundation on which her Title VII claim, if valid, would proceed. From that foundation, Campbell must offer some allegation that the terms and conditions of her employment were affected because of her status as a woman, not simply as a result of personal incompatibility and petty grudges. In the absence of such a distinction, any workplace affected by consensual workplace romances gone sour, and the concomitant workplace politics, could spawn Title VII claims. See Trautvetter v. Quick, 916 F.2d 1140, 1151 (7th Cir.1990) (discussing an analogous claim). In Huebschen v. Dept. of Health and Social Services, 716 F.2d 1167 (7th Cir.1983), Judge Pell, writing for the Seventh Circuit addressed similar issues. In that case a male employee alleged violations of the Equal Protection Clause and Title VII when a female supervisor with whom he had had a consensual sexual affair recommended that he be demoted after he ended the affair. In reviewing the implications of concluding that this conduct did not constitute discrimination, Judge Pell wrote: Rader's motivation in [recommending demotion] was not that Huebschen was male, but that he was a former lover who had jilted her. ... Thus the proper classification, if there was one at all, was the group of persons with whom Rader had or sought to have a romantic affair. It was this group, of which Huebschen may have been the only one, that Rader sought to disadvantage. As unfair as Rader's treatment of Huebschen may have been, we simply are not persuaded that the Equal Protection Clause should protect such a class. Huebschen, 716 F.2d at 1172. Even if taken for its most narrow proposition, Huebschen indicates the following: [T]hat when an employer penalizes an employee after the termination of a consensual relationship, a presumption arises that the employer acted not on the basis of *529 gender, but on the basis of a failed interpersonal relationship — a presumption rebuttable only if the employee can demonstrate that the employer demanded further sexual relationships before taking the action he did. Read in this way, Huebschen makes a great deal of sense. Title VII prohibits discrimination in the workplace. An employee has the right to work in an atmosphere free from sexual abuse, and to obtain the privileges and benefits of her employment without having to provide sexual favors to her employer. An employee who chooses to become involved in an intimate affair with her employer, however, removes an element of her employment relationship from the workplace, and in the realm of private affairs people do have the right to react to rejection, jealousy and other emotions which Title VII say have no place in the employment setting. Such an employee, of course, always has the right to terminate the relationship and to again sever [her] private life from the workplace; when she does so, she has the right like any other worker, to be free from a sexually abusive environment, and to reject her employer's sexual advances without threat to punishment. Yet, she cannot then expect that her employer will feel the same as he did about her before and during their private relationship. Feelings will be hurt, egos damaged or bruised. The consequences are the result not of sexual discrimination, but of responses to an individual because of her former intimate place in her employer's life. Keppler v. Hinsdale Township High School Dist. 86, 715 F. Supp. 862, 869 (N.D.Ill.1989) (discussing the interplay between a consensual affair and a quid pro quo sexual discrimination claim) (footnote omitted). Though Campbell has alleged Masten was uncomfortable around her and overly critical of her work after their affair ended, she makes no claim that that situation was based on gender, rather than personal animosity. In addition, Campbell offers no causal connection between Beavers's (and/or Wildlife's) decision to terminate her, and her gender; nor does she allege that Beaver, Jaber, Hutchinson and Masten acted together to discriminate against Campbell on the basis of gender as such. Indeed, while Beavers's alleged friendship with Masten, and Masten's criticism of Campbell's work after their relationship ended, may have detrimentally affected Beavers's opinion of Campbell, it is hardly uncommon for a friend to demonstrate loyalty through a showing of allegiance and support after her friend ends a romantic relationship with another. While such behavior may cause divisiveness among coworkers as a result of blurring the line between one's private life and one's workplace, it does not add up to, or even approach, sex discrimination. Accordingly, even assuming all of plaintiff's allegations are true, Campbell has put forth no set of allegations which could make out a colorable sex discrimination claim. Thus, as to Count One, defendants' motion to dismiss will be granted. (6) Campbell's next federal claim, Count Two, consists of an allegation of quid pro quo sexual harassment. A cognizable claim of quid pro quo sexual harassment requires that the plaintiff assert "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when (1) submission to such conduct is made explicitly or implicitly a term or condition of an individual's employment. ..." 29 C.F.R. § 1604.11(a). "The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'" Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 2406, 91 L. Ed. 2d 49 (1986). Plaintiff nowhere alleges in either her original or Amended Complaint that her sexual relationship with Masten was "unwelcome." Rather, Campbell concedes that the affair was consensual, and she concedes Masten was the party to end the relationship. Indeed, if there was a jilted lover amongst this pair, it was Campbell not Masten. Under those circumstances, there is no factual basis for this Court to infer that Masten's sexual relationship with Campbell became "unwelcome" based on Campbell's reference to "unspoken *530 expectations" somehow communicated by Masten after the affair had progressed, without objection by Campbell, and well after she had received a raise. Finally, as discussed in the Keppler opinion, cited above, negative employment actions which follow on the heels of a consensual relationship gone sour do not constitute quid pro quo sexual harassment unless they are linked in some way to other or further "unwanted" sexual advances. Thus, taking as true every allegation in Plaintiff's Complaint, plaintiff has not alleged all the elements of a cognizable claim for quid pro quo sexual harassment; therefore, defendants' motion to dismiss will be granted as to Count Two. (7) Plaintiff's final Title VII claim, for hostile work environment, also fails. "To prove such a [hostile work environment] claim, the plaintiff must show that the conduct in question was unwelcome, that the harassment was based on sex, and that the harassment was sufficiently severe or pervasive to create an abusive working environment." Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir.1987). See also Meritor Savings Bank, 477 U.S. at 66, 106 S. Ct. at 2405. Campbell claims neither gender-based harassment — she alleges that her work was criticized and ridiculed by Masten because of his fears that his wife would learn of their past affair — nor verbal or physical conduct of sexual nature, and hence sets forth no colorable hostile work environment contention. Thus, defendants are entitled to the dismissal of Count Three. (8) Further, the court declines to exercise its discretionary supplemental jurisdiction set forth in 28 U.S.C. § 1367(a) over the remaining state law claims. "[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." While this Court appears to have supplemental jurisdiction over the state law claims in this case, Congress has provided district courts with several discretionary exceptions to their exercise of supplemental jurisdiction in 28 U.S.C. § 1367(c) — one of which this Court will exercise. Districts courts may decline supplemental jurisdiction where "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3); see also, Hardy v. Birmingham Board of Education, 954 F.2d 1546, 1550 (11th Cir.1992) ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.") (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966)). This Court believes the determination of the sufficiency of Campbell's state law claims is best left to the Maryland state courts, and accordingly, this Court declines herein to exercise supplemental jurisdiction over the state law claims. Furthermore, as no discovery has taken place in this case, this Court finds the interests of the defendants are not unduly prejudiced by plaintiff's Rule 41(a)(2) Motion for Voluntary Dismissal, and hence, hereby grants plaintiff's motion. (9) Copies of this Memorandum and Order and of a separate Judgment Order of even date herewith are today being mailed to counsel of record. JUDGMENT ORDER (1) Judgment is hereby entered for the defendants with regard to each of plaintiff's federal claims, Counts One, Two, and Three of plaintiff's Amended Complaint. (2) Plaintiff's state law claims, Counts Four, Five, Six, Seven, Eight and Nine of her Amended Complaint, are hereby dismissed without prejudice. The Clerk of the Court is directed to close the Court File in this case.

2013-10-30 06:32:43.391421+00

Alexander

774 A.2d 378 (2001) 2001 ME 105 In re ANNIE A. Supreme Judicial Court of Maine. Argued: May 17, 2001. Decided: July 13, 2001. *379 Joyce Mykleby, Esq., (orally), Machias, for appellant. *380 G. Steven Rowe, Attorney General, John H. Hawkes, Asst. Attorney General (orally), Matthew Pollack, Asst. Attorney General, Augusta, for appellee. Frederick Stocking, Esq., Lamoine, Guardian ad Litem. Carol Lewis, Esq., Lubec, for intervenors. Panel: WATHEN, C.J., and RUDMAN, CLIFFORD, DANA,[*] SAUFLEY, ALEXANDER, and CALKINS, JJ. ALEXANDER, J. [¶ 1] The mother of Annie A. appeals from a judgment of the District Court (Machias, Romei, J.) terminating her parental rights in her daughter. The mother contends that the court erred when it (1) found by clear and convincing evidence that she was unable to take responsibility for Annie within a time which was reasonably calculated to meet Annie's needs, and (2) failed to accord Annie's maternal grandparents priority consideration for Annie's placement. We affirm the judgment. I. CASE HISTORY [¶ 2] The factual history of the case must be examined with acknowledgement of a statutory mandate that gives grandparents priority for consideration for placement if that placement is in the best interests of the child. The relevant statute provides: In any proceeding when standing and intervenor status have been granted, the grandparent may request the court to order that the child be placed with the grandparent. In making a decision on the request, the court shall give the grandparents priority for consideration for placement if that placement is in the best interests of the child and consistent with the purposes listed in section 4003. 22 M.R.S.A. § 4005-B(4) (Supp.2000). The record supports the following facts: [¶ 3] Annie was born on September 1, 1999, and was immediately removed from her mother's care. On September 3, pursuant to a preliminary child protection order obtained by the Maine Department of Human Services (DHS), Annie was placed in a foster home. Shortly thereafter, the court conducted a summary preliminary hearing on the protection order. See 22 M.R.S.A. § 4034(4) (Supp.2000). At the hearing, a DHS caseworker testified that Annie would be in jeopardy if she was returned to her mother because Annie's father had an extensive history of substance abuse and domestic violence. After the hearing, the court ordered that Annie remain in DHS custody because of her father's behavior and her mother's minimization of that behavior and the threat it posed to Annie. The court also stated that the mother lacked "sufficient intellectual capacity to be the primary caretaker of an infant."[1] [¶ 4] Beginning in November 1999, the mother was allowed to visit Annie at her foster home under the foster mother's supervision. The visits lasted three to four hours per day and occurred five days per week. In addition, Annie's mother attended weekly counseling sessions with a licensed clinical social worker, and participated *381 in a parenting capacity evaluation conducted by a clinical psychologist. [¶ 5] In early January 2000, the court received a report from Annie's guardian ad litem. The guardian's report noted that Annie's mother had suggested that the mother's father and stepmother, who reside in Belleville, Michigan, would be an appropriate placement for Annie. The grandparents later testified that they each had contacted a person at DHS in the fall of 1999 and attempted to arrange visits with Annie around Christmas or on weekends, but were refused because at the time they had no legal standing. [¶ 6] The court conducted a jeopardy hearing on January 10, 2000. See 22 M.R.S.A. § 4035(1) (Supp.2000). On January 18, authorities found Annie's father's body in a snowbank. He had died from exposure while stranded during a snowstorm. Apparently no party advised the court of this significant change of circumstances between the January 10 jeopardy hearing and the later jeopardy order. [¶ 7] In its jeopardy order, the court determined that Annie should remain in DHS custody at her foster home. The court found that circumstances of jeopardy existed due to "a serious threat of emotional abuse, physical abuse and neglect" because of the father's violent personality and substance abuse problem, and the mother's failure to recognize the threats Annie's father's behavior posed to herself and Annie. In addition, the court ordered DHS to initiate a home study of Annie's Michigan grandparents for potential placement and custody of Annie with a relative in the event that reunification with the mother failed. See 22 M.R.S.A. § 4191 (1992). [¶ 8] Between the January 10 jeopardy hearing and the July 10 contested judicial review, reunification efforts continued as the mother maintained her supervised visits with Annie[2] and attended her weekly therapy sessions. Near the end of January, a DHS caseworker contacted the grandparents, and the grandparents expressed their interest in gaining placement of Annie. Shortly thereafter, the grandparents filed a motion for, and were granted, intervenor status. See 22 M.R.S.A. § 4005-B(2) & (3) (Supp.2000). [¶ 9] At the beginning of the July 10 contested judicial review, both the mother's counsel and the court expressed disappointment because the grandparents' home study had not yet been received. Counsel requested a continuance until its receipt. DHS opposed the continuance, and the court denied the request. The home study had been completed on June 17 and mailed from Michigan on or after July 1. It is not clear when DHS received it. A cover page indicates that DHS had the study in its possession on or before July 13. Thus, DHS may have received the home study between July 10 and July 13. [¶ 10] During the July 10 hearing, the mother's therapist testified that the grandfather has had little involvement in his daughter's life and that the grandfather was reluctant to address or identify her intellectual limitations. Following the hearing, the court issued an order allowing DHS to cease its reunification efforts. In its order, the court discussed the importance of bonding and the great extent to which Annie had already bonded with her foster parents. The court also noted that despite her diligent efforts, Annie's mother never will have the capacity to protect Annie or appreciate her special needs. Finally, the court stated that the grandfather *382 has never been a significant part of his own daughter's life, and that it would "not lightly transfer custody to someone who has not been a part of — a significant part of Annie's life, if any part at all, but has been really a rather insignificant part of [the mother's] life...."[3] [¶ 11] The Michigan home study indicated that Annie's grandparents currently have two young children of their own. The home study characterized the grandparents' marital relationship as "stable, respectable, and loving," and noted that they "were very supportive of each other and anxious to adopt Annie." The study concluded "that the [grandparents'] home is an extremely loving home capable of nurturing and raising another child," and that although Annie's grandfather "feels badly that Annie cannot be raised by her mother, he has accepted [the mother's] limited abilities and is prepared to raise his granddaughter." The home study ultimately approved Annie's placement with the grandparents. [¶ 12] DHS filed a petition to terminate the mother's parental rights on August 2, and the court conducted a termination hearing on September 25. At the hearing, a DHS caseworker testified that Annie had significantly bonded with her foster mother and that she did not believe Annie's placement in the grandparents' home was in Annie's best interests. The caseworker also stated her concern that placement in the grandparents' home was really a situation designed to allow the mother to raise Annie. On cross-examination, the caseworker admitted that Annie's mother had done everything she could to comply with reunification and had been diligent in her efforts, but had made only minimal improvements in several areas. The caseworker also testified that her plan from the beginning was to support Annie's placement with the foster parents in the event that reunification with her mother failed.[4] [¶ 13] The grandmother testified that she first had contact with DHS in December 1999. She stated that she talked to a DHS worker on the telephone for about thirty minutes, and that she told the worker that she and her husband would never permit Annie's mother to move to Michigan to raise Annie. [¶ 14] Once they were granted intervenor status, the grandmother testified she and Annie's grandfather were told they would be allowed one visit per month with Annie. The visits were to last only one hour, and had to be scheduled between Monday and Friday. Cf. 22 M.R.S.A. § 4005-B(6) (Supp.2000). Annie's grandmother explained that if there had been some flexibility allowing a longer weekend visit, it probably would have made a difference in terms of their coming from Michigan to Maine for a visit. The grandmother testified that it was difficult to come to Maine during the week for a one hour visit because it was a twenty hour drive, she worked full-time, it was expensive, and they had two young children. The grandmother also stated that DHS told her that "it was in Annie's best interest if [she and *383 her husband] stayed out of Annie's life and basically just let the State take care of it." [¶ 15] Annie's grandfather testified that he told Annie's mother she would not be permitted to come to Michigan to raise Annie, and that Annie's mother understood that the grandparents would be Annie's parents. The grandfather further stated that he recognized that Annie's mother has limited intellectual ability, but that he did not want "people — outsiders — telling me my child has a — is limited." On cross-examination, the grandfather admitted that he knew Annie had been in foster care since September 1999, but that he did not come to Maine to see her until one supervised visit in August 2000. He explained that he was raising his two children and that he was "getting the run-around" from DHS. [¶ 16] Following the termination hearing, the court entered a judgment terminating the mother's parental rights in Annie finding, by clear and convincing evidence, that (1) termination was in Annie's best interests; (2) her mother was unable to protect Annie from jeopardy and the circumstances were unlikely to change within a time which was reasonably calculated to meet Annie's needs; and (3) the mother was unable to take responsibility for Annie within a time which was reasonably calculated to meet Annie's needs. [¶ 17] The court noted that "[Annie's mother] has been regular in her visits and she loves Annie [but] regrettably, however, given her intellectual limitations, she will never be able to keep Annie safe or be able to meet her emotional or developmental needs." The court further noted that "Annie, by all reports, is a happy and healthy child with some developmental delays. She has been in her present foster home since birth and she's closely bonded to her foster parents. Her foster parents are sensitive to her delays and have shown the ability to put services in place for her."[5] Finally, the court concluded that the grandparents are "good people," but their lack of insight into Annie's developmental needs, the grandfather's inability to acknowledge Annie's mother's developmental delays, and the significant bonding that had occurred between Annie and her foster family, established that it was in Annie's best interests to remain at her foster home. The court then adopted DHS's permanency plan and ordered that Annie remain with her foster parents. Annie's mother brought this appeal. The grandparents did not appeal. II. DISCUSSION A. Termination of Parental Rights [¶ 18] A court may terminate parental rights if the parent is unable to protect the child from jeopardy or to take responsibility for the child within a time which is reasonably calculated to meet the child's needs, and if termination is in the best interests of the child. 22 M.R.S.A. § 4055(1)(B)(2)(a) and (b)(i-ii) (1992 & Supp.2000). The court can terminate parental rights only if it finds, by clear and convincing evidence, that these elements have been satisfied. 22 M.R.S.A. § 4055(1)(B)(2). [¶ 19] "When reviewing sufficiency challenges for clear and convincing evidence, we examine whether the trial court could have reasonably been persuaded on the basis of evidence in the record that the required factual findings were highly probable." In re Charles G., 2001 ME 3, ¶ 5, 763 A.2d 1163, 1165-66 (citation omitted). *384 Therefore, if "`rational or competent support in the record'" exists for the District Court's findings, we must sustain them. Id.5, 763 A.2d at 1166 (quoting In re David G., 659 A.2d 859, 861 (Me.1995)). [¶ 20] Proof of any one of the four statutory definitions of parental unfitness, pursuant to 22 M.R.S.A. § 4055, is independently adequate to justify termination if supported by clear and convincing evidence and a separate finding that termination is in the child's best interests. Id.6, 763 A.2d at 1166. In this case, although it needed to find only one, the trial court determined that DHS proved two of the parental unfitness grounds by clear and convincing evidence. See id. See also In re Kafia M., 1999 ME 195, ¶ 10, 742 A.2d 919, 923. Specifically, the trial court found that (1) Annie's mother was unable to protect Annie from jeopardy and the circumstances were unlikely to change within a time which was reasonably calculated to meet Annie's needs, see 22 M.R.S.A. § 4055(1)(B)(2)(b)(i); and (2) Annie's mother was unable to take responsibility for Annie within a time which was reasonably calculated to meet Annie's needs. 22 M.R.S.A. § 4055(1)(B)(2)(b)(ii). [¶ 21] The evidence is sufficient to support the court's findings of parental unfitness and best interests. The evidence demonstrates that DHS made significant efforts to promote reunification with the mother by providing counseling, frequent visitation, and parenting skills education. See 22 M.R.S.A. § 4041 (1992 & Supp.2000). Although there is no dispute that Annie's mother loves her daughter very much, has made every effort through counseling and visitation to learn effective parenting skills, and has been cooperative and diligent in her attempt to gain the skills necessary to be a competent parent for Annie, the court could conclude that the mother's limited cognitive skills have placed a barrier on her ability to retain and generalize information. The evidence supports the conclusion that the mother lacks the cognitive ability to learn, retain, and apply basic parenting skills such as washing baby bottles, holding a baby safely, and protecting a baby or toddler from everyday household dangers. Accordingly, because the evidence establishes that it is highly probable that the mother will always remain unable to independently take responsibility for Annie, the evidence is sufficient to support the trial court's findings supporting termination. B. Grandparent Placement [¶ 22] The grandparents did not appeal the court's placement decision. Annie's mother, however, raises the issue because Annie's placement with the foster parents assuredly deprives the mother of any contact with her daughter. Conversely, placement with the grandparents may provide a situation within which the mother could maintain some level of meaningful contact with Annie. Accordingly, although the grandparents are not parties to the appeal, we consider the issue properly before us on the basis of the mother's appeal and her direct and substantial interest in maintaining contact with her daughter within her family structure. [¶ 23] As noted in the case history, section 4005-B(4) requires that intervening grandparents be accorded priority status for placement consideration if such placement is in the grandchild's best interests. There is no dispute, nor could there be on this record, that the grandparents were not accorded priority status pursuant to the statute. The record establishes that DHS, from the beginning, intended the foster parents to serve as the adoptive family of Annie in the event that reunification with her mother failed. DHS, the guardian ad litem, and the foster parents *385 were consistently opposed to the possibility of Annie's placement with the grandparents. The court was persuaded by such opposition. [¶ 24] In its order terminating parental rights and awarding placement to the foster parents, the court found that the grandparents were "good people" but addressed neither the information in the home study nor the grandparents' testimony at the hearing. Thus, the grandparents received no priority consideration. [¶ 25] However, the Legislature has directed that a favorable "best interest" determination is a prerequisite to giving grandparents priority consideration for placement. Thus, section 4005-B(4) directs that grandparents shall receive priority consideration for placement only "if that placement is in the best interests of the child and consistent with the purposes listed in section 4003." [¶ 26] In this case, Annie's placement with the grandparents would be consistent with the purposes of the Act.[6] In addition, placement with the grandparents promotes the goal of family reunification. See 22 M.R.S.A. § 4003(3).[7] In allowing the grandparents to intervene, the court must have found that (1) the grandparents had made sufficient effort to establish a relationship with Annie; (2) granting intervenor status was in Annie's best interests; and (3) the grant of intervenor status was consistent with the purposes of the Act. See 22 M.R.S.A. § 4005-B(3).[8] Those findings standing alone, however, do not compel a finding that placement with the intervening grandparents is in the child's best interests. [¶ 27] In the context of a termination hearing, the trial court determines the best interests of the child by relying on such factors as "the needs of the child, including in its analysis, the child's age, the child's attachment to relevant persons, periods of attachments and separation, the child's ability to integrate into a substitute *386 placement or back into the parent's home, and the child's physical and emotional needs." In re Charles G., 2001 ME 3, ¶ 14, 763 A.2d at 1168. See 22 M.R.S.A. § 4055(2) (Supp.2000).[9] [¶ 28] Annie is a twenty-two month-old child who has experienced some developmental delays. She has lived with her foster family since she was two days old, and has never known a different home. In contrast, she has visited with her grandparents, perhaps by no fault of the grandparents, for only one hour. She has significantly bonded with her foster mother and has never experienced any substantial period of separation from her. Although she may be able to integrate into a substitute placement with her grandparents, it is not evident that the grandparents have a plan for services to address Annie's special needs. In addition, the record contains some evidence suggesting that Annie's grandfather failed to recognize, at some level, the special needs and developmental delays of his own daughter. The foster family can provide Annie with love, affection, and guidance, and their home provides the stability that she needs now and may need in the future if her special needs further develop. This evidence is sufficient to support the court's finding that it is in Annie's best interests to maintain her present placement, rather than to remove her from the foster home and give priority consideration to placement with the grandparents. [¶ 29] The trial court acted appropriately in granting the grandparents' intervenor status, promptly ordering a home study, weighing the grandfather's prior demonstrated deficits against Annie's current placement, and concluding that Annie's best interests will be served by placement with her foster parents where her developmental delays are more likely to be recognized and addressed. [¶ 30] To resolve the priority status issue in the mother's favor, we must determine that the evidence compels a finding that placement with the grandparents is in Annie's best interests. See Estate of Sylvester v. Benjamin, 2001 ME 48, ¶ 9, 767 A.2d 297, 300 (party with burden of proof, challenging an adverse factfinding, must demonstrate that a finding in that party's favor is compelled by the evidence) (citation omitted). On this record we find no error because the evidence supports the court's finding that placement with the foster parents was in Annie's best interests. Thus, the grandparents were not entitled to the priority consideration provided in 22 M.R.S.A. § 4005-B(4). The entry is: Judgment affirmed. NOTES [*] Although not available at oral argument, Justice Dana participated in this opinion. See M.R.App. P. 12(a) (stating that a "qualified justice may participate in a decision even though not present at oral argument"). [1] After the hearing, the mother and DHS, agreed that the mother should be placed in St. Andre's home in Bangor so she could learn basic parenting skills in a supervised setting, St. Andre's rejected the placement, however, as the mother, at age 27, exceeded its age limit. [2] The length and location of the supervised visits were reduced and changed after the mother took some money from the foster mother's purse. [3] In his report, the guardian ad litem stated that he was opposed to Annie's placement with the grandparents "even if the home study report of the [grandparents'] home is favorable." [4] The following colloquy between the grandparents' counsel and the caseworker occurred on cross-examination: Q: So from the beginning it has been your plan that if it did not work with [Annie's mother] that this family would be able — A: Absolutely. Q: — to adopt this child? A: Yes. [5] The testimony of several witnesses establishes that Annie has some form of developmental delay. The severity of the delay is not clear from the record. [6] The purposes of the Act are set forth as follows: Recognizing that the health and safety of children must be of paramount concern and that the right to family integrity is limited by the right of children to be protected from abuse and neglect and recognizing also that uncertainty and instability are possible in extended foster home or institutional living, it is the intent of the Legislature that this chapter: . . . . 2. Provide that children will be taken from the custody of their parents only where failure to do so would jeopardize their health or welfare; 3. Give family rehabilitation and reunification priority as a means for protecting the welfare of the children, but prevent needless delay for permanent plans for children when rehabilitation and reunification is not possible; 4. Promote the early establishment of permanent plans for the care and custody of children who cannot be returned to their family. 22 M.R.S.A. § 4003 (1992 & Supp.2000) (emphasis added). [7] The court's grant of intervenor status to the grandparents must have resulted in a judicial finding that such status would be consistent with the purposes of the Act. See 22 M.R.S.A. § 4005-B(3). Although the existing permanency plan was, admittedly, established earlier than any potential plan involving placement with the grandparents, such fact does not mean that placement with the grandparents at this point would be inconsistent with the purposes of the Act. The Act seeks early establishment. It does not, however, advocate premature placement or the premature establishment of a permanency plan. [8] Section 4005-B(3) requires the court to grant standing and intervenor status when it finds that the grandparent "has made sufficient effort to establish a relationship with the child, that the status would be in the best interests of the child and that the status would also be consistent with the purposes of this chapter as set forth in section 4003." [9] The result in this case, turning as it must on a determination of what is in Annie's best interests, is not an easy one. The best interests standard "delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute." Rideout v. Riendeau, 2000 ME 198, ¶ 54, 761 A.2d 291, 310 (Alexander, J., dissenting) (citing Troxel v. Granville, 530 U.S. 57, 73-74, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). That standard requires the trial judge to apply specific factors in a highly individualized process that must, by necessity, receive deferential review by an appellate court. See Daigle v. Daigle, 609 A.2d 1153, 1154 (Me.1992).

2013-10-30 06:32:43.39933+00

Welborn

535 S.W.2d 241 (1976) STATE of Missouri, Respondent, v. Benedict Louis KEMPER, Appellant. No. KCD 27015. Missouri Court of Appeals, Kansas City District. December 31, 1975. Motion for Rehearing and/or Transfer Denied February 9, 1976. Applications to Transfer Denied May 5, 1976. *243 Frank H. Strong, Larry L. Zahnd, Maryville, William D. Lay, Platte City, Richard J. Habiger, National Juvenile Law Center, St. Louis, for appellant. John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent. Before SWOFFORD, P. J., and WELBORN and HIGGINS, Special Judges. ROBERT R. WELBORN, Special Judge. On a change of venue from Nodaway County, a jury in the Platte County Circuit Court found Benedict Kemper guilty on four counts of murder in the first degree. He was sentenced to life imprisonment on each conviction. He appeals from such sentence and judgment. On October 11, 1972, the bodies of Marion Merrigan and Kathleen Merrigan, husband and wife, and of their children, William and Helen Merrigan, were found in their home near Conception, Missouri. All had died of gunshot wounds from a .22 caliber rifle. The attention of law enforcement officers focused on Benedict Kemper. Shortly after 1:00 A.M., a member of the State Highway Patrol, the Nodaway County Sheriff and the Nodaway County Juvenile Officer went to Kemper's residence, located about ¼ mile from the Merrigan house. After approximately 30 minutes of questioning, Kemper admitted that he had gone to the Merrigan home at around 11:00 P.M., October 10, 1972, and waited in the brush until the light went out. Then he entered the house, went to a first floor bedroom where he shot Mr. and Mrs. Merrigan with a .22 caliber rifle, and then ran up a stairway and shot Billy Merrigan and Helen Merrigan. On this appeal, the assignments of error fall into three categories: 1. Juvenile court proceedings. 2. Rulings on motions to suppress statements of appellant. 3. Trial errors. I Juvenile Court Proceedings Benedict Kemper was 15 years and 4 months of age on October 10, 1972. Following *244 his admissions he was taken into custody and on October 12, 1972, the juvenile officer filed a petition in his interest in the Juvenile Division of the Nodaway County Circuit Court. An order for dismissal of the petition by the court was set aside by this court in a prohibition proceeding. On March 29, 1973, an amended petition was filed in the Juvenile Division. A hearing was held on the amended petition on May 9, 1973. At the conclusion of the hearing the Judge of the Juvenile Division entered findings and an order dismissing the petition filed in appellant's interest and permitting his prosecution under the general law. Thereafter an information was filed charging him with four counts of murder in the first degree and the case eventually proceeded to trial, with the above-mentioned result. A Constitutionality of § 211.071, RSMo 1969 In the court below and on this appeal, appellant asserts that § 211.071, RSMo 1969, the statute authorizing the juvenile division of the circuit court to dismiss a petition in that court and permit a minor to be prosecuted criminally as an adult, is unconstitutional. The basis of this contention need not be stated, inasmuch as appellant acknowledges that the Supreme Court of Missouri in State v. Williams, 473 S.W.2d 382 (Mo.1971), and Coney v. State, 491 S.W.2d 501 (Mo.1973), rejected the attack he would make upon this statute. Appellant asserts that these decisions are not in harmony with the Constitution of the United States, but he states that such assertion is made for the purpose of "preserving the issues." He obviously recognizes that this court is obliged to follow the rulings of the Missouri Supreme Court. B Validity of Order of Juvenile Division Appellant contends that the order of the Juvenile Division dismissing the petition is void for four reasons. As to each he asserts that the deficiency or error deprived him of fundamental fairness and due process of law under the Federal and State Constitutions. He also asserts that the first two deficiencies produced a denial of effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. He also assigns, in each instance, violation of the applicable provision of the Juvenile Code. 1 Adequacy of Amended Petition Appellant contends that the amended petition did not give adequate notice of either the purpose of the hearing or of the ultimate facts supporting the legal conclusion that appellant was not a proper subject to be dealt with under the juvenile law. The amended petition in this case is something of an amalgamation of the basic juvenile court petition under § 211.091, RSMo 1969, coupled with a request that such petition be dismissed on the grounds that Benedict L. Kemper was over the age of 14 years and had allegedly committed an offense which would be a felony if committed by an adult and he is not a proper subject to be dealt with under the juvenile law. The asserted inconsistencies which a petition in such form presented are not such as to deprive the amended petition of its effectiveness in advising appellant of the purpose of the May 9th hearing. With respect to the adequacy of the petition, it did state the offense alleged to have been committed by appellant and the conclusion that he was not a fit subject to be dealt with under the juvenile code. The petition was accompanied by a report of the juvenile officer detailing his reasons for such conclusion. The opinion of this court in State ex rel. T. J. H. v. Bills, 495 S.W.2d 722 (Mo.App.1973), affirmed on other grounds, 504 S.W.2d 76 (Mo. banc 1974), is re-adopted as determinative of this contention. 495 S.W.2d 729[18, 19]. *245 Appellant contends that, in State ex rel. R. L. W. v. Billings, 451 S.W.2d 125 (Mo. banc 1970), the court held that juvenile court proceedings should be treated as equitable actions for procedural purposes, that "`equitable' proceedings are made to come under the governance of the Rule (sic) of Civil Procedure." 451 S.W.2d 127. Billings involved the application of Rule 51.03 (now Rule 51.05), change of judge, to juvenile court proceedings. The opinion holds that rules of civil procedure may be applicable to juvenile proceedings, absent express provision in the juvenile code. Section 211.071 sets out the contents of a pleading in the juvenile court which will authorize the waiver of jurisdiction by the juvenile court. Compliance with that provision is all that is required and the rules of civil procedure do not enter into the determination of the sufficiency of the pleading. Appellant contends that the T. J. H. holding of this court on the adequacy of the notice should not be applied because of the inconsistencies in the allegations of the petition and also because, as more fully discussed below, a special juvenile officer testified without having reduced his report to writing. As for the first contention, the expressed conclusions and recommendations of the juvenile officer in his written report made it clear that his conclusions were directed at obtaining an order relinquishing jurisdiction by the juvenile court. Again, the alleged inconsistent allegations of the petition did not obscure the recommendation of the juvenile officer and his reasons therefor, so that any claim of lack of adequate notice of facts relied upon is without merit. As for the testimony of the special juvenile officer, appellant points to no new basic grounds for dismissal of the petition which were supplied by the testimony of the special juvenile officer. In such circumstances the lack of a written report by such officer would not negate the effectiveness of the notice provided by the petition and the report of the juvenile officer which had been reduced to writing. 2 Testimony of Special Juvenile Officer Mr. Donald Tharp, an attorney who had previously served as juvenile officer for the Platte County Circuit Court, was appointed to assist the Fourth Circuit Juvenile Officer in this case. When Mr. Tharp was called as a witness in the Juvenile Court proceedings he stated that he had made no written report of his investigation. Counsel for appellant objected to his testifying without having made a prior written report of his investigation. The objection was overruled and Mr. Tharp was permitted to testify. Relying on a statement in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), appellant now contends that the trial court's ruling was a violation of the constitutional guaranties of fundamental fairness, due process of law and effective assistance of counsel. In Kent, the court stated (383 U.S. 556, 86 S. Ct. 1055): "It is clear beyond dispute that the waiver of jurisdiction is a `critically important' action determining vitally important statutory rights of the juvenile." The court further stated (383 U.S. 557, 86 S. Ct. 1055): "* * * [W]e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel." This language cannot be taken to mean that any official of the juvenile court who is to testify in waiver proceedings must have, as a constitutional requirement, previously submitted to the court a written report of his investigation. All that it requires is that if the official has submitted such a report which is to be considered by the court, such written report must be *246 made available to counsel for the juvenile. §§ 211.071 and 211.401, RSMo 1969, relied upon by appellant, do not establish any constitutional barrier to the testimony offered in this case. § 211.401 does require the juvenile officer to keep a written report of his investigation and § 211.071 authorizes the use of such report in waiver proceedings. There is no complaint insofar as compliance by the juvenile officer with these provisions is concerned. Kent may impose some constitutional obligation to make such report available to counsel for the juvenile, but no reason appears for broadening that holding to require a written report from other personnel as a condition precedent to their revealing to the court and the juvenile and his counsel simultaneously in the waiver hearing the results of their investigation. Nor should such a meaning be accorded § 211.401, which refers only to the report of the juvenile officer. 3 Adequacy of Report of Juvenile Officer Again, relying on Kent v. United States, supra, appellant asserts that the report of the juvenile officer in this case was not a report of "full social investigation," which he again asserts Kent requires as a constitutional matter. The short answer to that contention is that Kent referred to the requirement of a "full investigation" as a "statutory requirement" and, in fact, made such reference in the same sentence in which it referred to "procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness," clear evidence that the court distinguished the statutory requirement from constitutional requirements. Insofar as the requirement of the statute is concerned, § 211.401 requires only "a written report." The adequacy of the report is to be determined by the juvenile court, and on appeal is to be looked to as a matter to be considered in the over-all determination of the validity of the juvenile court's determination. 4 Trial Court's Findings Upon Relinquishment of Juvenile Jurisdiction The juvenile court's order included the following findings: "That said child is not a proper subject to be dealt with under the provisions of said Sections 211.011 to 211.431 for the reasons that: "1. Benedict L. Kemper is now a youth of fifteen years, eleven months. "2. The alleged charges in the Juvenile Officer's petition would be felonies if committed by an adult; that said offenses are alleged to have been committed against four persons, which resulted in their deaths; and if found to be true would indicate an aggressive, violent, premeditated and wilful manner of conduct. "3. That said child is not now suffering from mental disease or defect, and was not suffering from any mental disease or defect at the time the alleged crimes were committed; that he has the capacity to understand the proceedings against him and can assist his attorneys in the defense of said causes. "4. That said child is a well-developed, experienced and mature appearing person. "5. That said child is of above average intelligence. "6. That no facilities exist within the Juvenile Court to offer reasonable expectations of treatment and rehabilitation and to afford the community as a whole protection from the acts of said minor child. "7. That in the totality of the circumstances of said child's case that he should be dealt with under the general law rather than within the benign, rehabilitative purposes of the juvenile code for a period limited to five years, and one month, when he becomes 21 years of age. The Juvenile Code limits retention of jurisdiction of a child by the Juvenile Court to his attainment of the age of twenty-one years." Appellant asserts that, in reaching its ultimate conclusion that appellant was not a proper subject to be dealt with under the Juvenile Code, the juvenile court failed to *247 consider and make findings of fact on matters relevant, material and required to support the order, that the order and findings of fact upon which it was based were, in part, devoid of evidentiary support, in part based upon matters and facts which were irrelevant, immaterial, without probative force and inherently prejudicial to appellant, and finally that the findings are not supported by clear, cogent and convincing evidence, or even a preponderance of the evidence. The initial question this assignment presents relates to the nature and scope of review on this appeal. Appellant asserts that review is as in an equity case, citing § 211.171 6.: "The practice and procedure customary in proceedings in equity shall govern all proceedings in the juvenile court." Applying this standard, appellant would require proof in support of the waiver of jurisdiction by "clear, cogent and convincing" evidence. See Fisher v. Miceli, 291 S.W.2d 845, 848 (Mo.1956). However, § 211.071 entrusts the determination of whether or not to relinquish jurisdiction to the discretion of the juvenile court judge. It is now well-settled that this is not an uncontrollable discretion and that its exercise must be accompanied by a statement of reasons for relinquishment of juvenile court jurisdiction, arrived at upon a record which admits of meaningful review. Kent v. United States, supra. However, the standard of review is whether or not in reaching its conclusion the juvenile court, in view of the totality of the relevant circumstances, abused its discretion. State v. Thompson, 502 S.W.2d 359, 363-364[5] (Mo.1973); State ex rel. T. J. H. v. Bills, supra, 504 S.W.2d 83, concurring opinion of Donnelly, C. J. Both appellant and respondent recognize that the opinion of Judge Shangler in the case of State ex rel. T. J. H. v. Bills, 495 S.W.2d 722 (Mo.App.1973), contains a fair summary of the considerations proper to be looked at by the juvenile court in arriving at its determination of whether or not to waive jurisdiction, as follows (495 S.W.2d 726-728): "* * * In State v. Williams, 473 S.W.2d 382 (Mo.1971), the court noted first that the juvenile law is integral and each section must be construed in terms of the others. The court then determined that the provisions of the juvenile law, including § 211.071 which describes the waiver procedure and § 211.011 which declares the purpose of the juvenile law, are expressed in terms of common understanding, and that when construed together an explicit statutory standard for waiver appears: A child may be determined by the juvenile court judge not a proper subject to be dealt with under the juvenile law if, after receiving an investigation report and hearing evidence, it reasonably appears that the continued exercise of such jurisdiction will not `facilitate (the child's) care, protection and discipline. . . and . . . (provide him) such care, guidance and control, preferably in his own home, as will conduce to the child's welfare and the best interests of the state.' § 211.011. Then in Coney v. State, 491 S.W.2d 501 (Mo.1973), the Supreme Court determined the same rationale for §§ 211.071 and 211.011, without reference to Williams, and also rejected the constitutional argument relator raises here. An earlier decision of the Supreme Court had articulated, more tersely, an equivalent standard for waiver under § 211.071: `The ultimate purpose of the transfer of a juvenile. . . is to protect the public in those cases where rehabilitation appears impossible.' State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377[4] (Mo. banc 1968). * * * * * * "The decisions of the Missouri Supreme Court which expound the explicit statutory standard for waiver also recognize other clear and intelligible principles implied from that standard by which litigants and juvenile courts may be guided in determining when a juvenile is no longer a proper subject to be dealt with under the juvenile act. A juvenile court might reasonably exercise its discretion to relinquish jurisdiction over a child when, from the totality of circumstances, it appears: 1) the child's `age, maturity, experience and development' are such as to require prosecution *248 under the general law (Coney v. State, supra), 2) the nature and seriousness of the child's conduct constitutes a threat to the community (State ex rel. Arbeiter v. Reagan, supra, 427 S.W.2d l.c. 377[4]; Coney v. State, supra), 3) the conduct was committed in a violent and vicious manner (Coney v. State, supra); 4) there is reasonable likelihood that like future conduct will not be deterred by continuing the child under the `care, protection and discipline' of the juvenile law process (State v. Williams, supra, 473 S.W.2d l.c. 384). We understand these decisions to mean that any factor which tends to predict the suitability or unsuitability of the juvenile law process for rehabilitation of the child is relevant to the determination of whether he is a proper subject to be dealt with under that law." Appellant suggests that additional criteria are to be derived from the opinion of the Supreme Court in State ex rel. T. J. H. v. Bills, supra, where the court noted that "* * * the fact a charge is serious does not mean it cannot or should not be handled in juvenile court." 504 S.W.2d 81. That statement means no more than that the seriousness of the offense is not to be the sole basis of the court's action. It does not require that that factor be ignored in the total picture, however. Appellant also points to State v. Thompson, 502 S.W.2d 359 (Mo.1973), where a conclusion of the juvenile court in waiving jurisdiction, to the effect that the infant there involved had received the benefit of every possible means and resource available under the Juvenile Code and had "demonstrated by his behavior that he cannot adjust to society and that he is beyond further rehabilitative care, treatment and services of this (the juvenile) court; * * *" was found adequate and supported by the record. 502 S.W.2d 364. The prior experience of the juvenile court with the child would necessarily be a "factor which tends to predict the suitability or unsuitability of the juvenile law process for rehabilitation of the child * * *." (State ex rel. T. J. H. v. Bills (Mo.App.), supra). However, Thompson does not require such prior experience as an essential of waiver. Turning to the court's findings, the first is that the appellant was then "a youth of fifteen years, eleven months." Appellant questions the relevancy of a finding of age at the time of the decision, stating that age at the time of the offense is the only relevant factor, citing State v. Brown, 443 S.W.2d 805 (Mo.1969). Regardless of the reason for the delay between the time of the offense and the date of the court's ruling, the court had to determine what should be the disposition of the petition as of the date of the ruling. Certainly, the age of the youth was significant as it bore on the important question, more fully considered below, of the time available for rehabilitation under the Juvenile Code. As for the second finding regarding the seriousness of the offense, appellant's attack is premised basically upon reliance on that finding as the exclusive basis of the court's order. Of course, that was not the only finding. It is, however, clearly recognized as a factor to be considered by the juvenile judge. State ex rel. T. J. H. v. Bills, supra. Unquestionably, the finding had evidentiary support and it is not to be ignored as reflecting a consideration of the guilt or innocence of the appellant. On the third finding, regarding appellant's mental condition, appellant contends that the finding is not supported by clear, cogent and convincing evidence, and that even if it were, the standard implied in the finding is improper and that the proper standard should be whether the child is "epileptic, mentally deficient or otherwise mentally disordered," the language of § 211.201. Considering the latter argument first, § 211.201 does authorize the juvenile court, upon finding that a child under its jurisdiction is "epileptic, mentally deficient or otherwise mentally disordered" to commit the child to the division of mental diseases. This provision does not preclude, upon a relinquishment petition, consideration of the child's mental responsibility under the standards of the criminal law. One of appellant's counsel on this appeal has recognized *249 the relevance of such consideration. In proposing a statute expressly stating the findings which must be made as a prerequisite to the waiver of juvenile court jurisdiction, he included the following: "(b) The child or minor is not suffering from a mental disease or defect for which he should be committed to a state mental hospital which mental disease or defect prevented him from knowing or appreciating the nature, quality or wrongfulness of his conduct or rendered him incapable of conforming his conduct to the requirements of the law; and * * *." Habiger "Prosecution of Children in Missouri Poses Constitutional Problems," 30 Mo.Bar J. 11, 22 (1974). The trial court is not to be held to have erred in considering appellant's mental condition in the light of criminal law standards in this case. As for the sufficiency of the evidence to support the court's finding, much of the evidence on the hearing was directed at appellant's mental condition. In his report, the juvenile officer stated that in an interview of the principal of the school which Kemper attended, conducted in early October, 1972 before the offenses here involved, the principal described Kemper as "a walking time bomb," with an uncontrollable temper even though he was very polite. He concluded that Kemper had an "emotional problem," that he was a "loner" who "appeared polite outwardly but was under extreme emotional strain by reason of inability to control his temper." The special juvenile officer testified that in his opinion Kemper was not "normal" and that evaluation and possibly treatment were indicated. The high school principal testified that Kemper was the subject of unjustified charges and ridicule by fellow students and that he was a "loner" and a "walking time bomb" who could not release built-up tension and psychological pressure. Appellant's mother testified that in 1967 or 1968, appellant had gotten into a physical encounter with another boy at the grade school he attended and that she was advised that her son had a problem and should see a psychiatrist. He did see psychiatrists in early 1968, but his family could not afford to continue psychiatric treatment. Dr. Elmer Jackson, M.D., Director of the Warren E. Hearnes Youth Center, Fulton State Hospital, testified that he and other medical personnel had examined appellant over a two-month period from late October through December, 1972. He testified that testing and evaluation indicated that appellant was suffering from "an adjustment reaction of adolescence characterized by schizoid and explosive tendencies." He stated that the condition was characterized by "maladjustment, failure to get along" with others, possessing some of the characteristics of schizophrenia. Doctor Jackson testified that he had concluded that appellant had no known disease or defect within the meaning of § 552.010; that he had the capacity to understand the proceedings against him and to assist in his own defense; and that he "did know and appreciate the nature, quality and wrongfulness of his alleged conduct, and was capable of conforming his conduct to the requirements of the law." Dr. M. R. Gaitonde, M.D., a board certified psychiatrist, examined appellant pursuant to court order on three occasions. He concluded that appellant's mental condition was "personality disorder, explosive personality," of more than five years' duration. He was of the opinion that the condition precluded appellant from conforming his conduct to the requirements of the law at the time of the alleged offense. On such a record, the finding of the trial court cannot be said to have been unsupported by evidence. The testimony and findings of Doctor Jackson support directly the court's finding. Doctor Gaitonde disagreed with Doctor Jackson's conclusion, but this did not preclude the conclusion reached by the court. As for the fourth and fifth findings, relating to the child's development, experience, maturity and intelligence, Coney v. State, 491 S.W.2d 501, 512[14] (Mo. 1973), recognizes that the first three considerations *250 are relevant in a waiver proceeding. They are proper matters for consideration in determining whether or not the criminal law processes are more appropriate than juvenile court procedures. The intelligence of the youth is also a proper factor for consideration. Appellant complains that this finding is not supported by evidence. Kemper's high school principal testified that the youth scored above average on a group intelligence test. Other testimony indicated that the youth had a great deal of ability but that he failed to apply himself. The trial court's finding does not lack evidentiary support. On the sixth finding relating to the availability of facilities within the juvenile system to offer reasonable expectation of treatment and rehabilitation while affording society protection against acts of appellant, the attack is based upon the lack of evidentiary support for the finding. Appellant contends that the evidence points to a conclusion directly opposite from the court's finding. The juvenile officer testified that his opinion that Kemper should be dealt with under the criminal law was based in part upon the lack of facilities within the Fourth Judicial Circuit for the rehabilitation or the protection of Kemper "not only for himself, but for the State." He acknowledged that he had arranged for children under the juvenile court's jurisdiction to obtain care and treatment for mental problems. In fact, he had interviewed Kemper on the afternoon of October 11, after the death of the Merrigans, but before the discovery of their bodies. His inquiry at that time related to burglaries in July which Kemper admitted having committed. He had concluded at that time that Kemper should receive psychiatric assistance through the juvenile court, but in view of the seriousness of the later discovered matters, he concluded that Kemper should be dealt with under the criminal law. Mr. Chamberlain stated that he was not familiar with facilities which might be provided at Fulton State Hospital for care of juveniles. Mr. Tharp, the special juvenile officer, stated that his opinion regarding the disposition of the waiver motion was based in part upon the absence of facilities available to the juvenile court other than "open facilities," from which the individual could leave at will. On cross-examination, Tharp stated that he was familiar with the Biggs Building facility at the Fulton State Hospital, a "quite secure" facility. He acknowledged that juveniles are treated there, although the facility is not exclusively for juveniles, and that the Division of Mental Diseases, upon the commitment of a child to its custody, would determine whether the child should go to the Biggs facility. Doctor Jackson testified that psychiatric treatment for teenagers was available at the Warren E. Hearnes Youth Center and at four other youth centers. These are open facilities, but teenagers are treated in the Biggs Building, a maximum security facility. Doctor Jackson testified that, if a juvenile court did commit a juvenile to the maximum security facility at Fulton, the Director of the Division of Mental Diseases would transfer him to a less secure facility only after evaluation, but the Director had the power to make such transfers as he saw fit. This evidence did show that there was no exclusively juvenile facility available to the court which would provide the treatment which might be required by the child and still afford the security which the court deemed essential in the handling of a youth such as appellant. There was, as appellant argues, evidence that if appellant were committed to the Division of Mental Diseases the Director might assign him to the Biggs facility. However, there was no assurance that such action might be taken, although Doctor Jackson did state that, if a juvenile court should specify a commitment to the Biggs Building, the assignment would be recognized to the extent of conducting an evaluation in that facility, but no further assurance was provided. Here the court was considering the disposition of the case of a juvenile who had been evaluated at the Hearnes facility, located *251 as is the Biggs facility, at the Fulton State Hospital. Certainly the juvenile court was entitled to consider the conclusion previously reached by members of the staff of the Fulton institution in considering the disposition of the case. In these circumstances, the contention that the finding of the court is without evidentiary support is unacceptable. Appellant also attacks the final finding of the court, particularly as it relates to the sufficiency of the time available within the juvenile framework for appellant's possible rehabilitation. Both Mr. Chamberlain, the juvenile officer, and Mr. Tharp, the special juvenile officer, were of the opinion that facilities were not available within the juvenile framework which might offer rehabilitative possibility within the five and one-half years during which the juvenile court could retain jurisdiction over the youth, or until he became 21 years of age. Both acknowledged that medically trained persons would be in a better position than they to make such an evaluation. However, the testimony of Doctor Gaitonde supports the opinion of these lay witnesses. Doctor Gaitonde in his testimony stressed the possibility of providing treatment for appellant, but made it clear that such a program would be a long-term matter. He stated, in response to a question as to whether or not psychiatric care and treatment would ultimately permit appellant to move again in society: "Well, counselor, you realize to be a prophet is the saddest thing that a physician should engage in, prophesying, but I would say that the offense that Ben has committed was of such enormity that we should not look lightly. I think that we have a right, as society, to protect, in spite of our compassion, in spite of our feelings or concern for this young man, we have a right to protect ourselves from his irrational outrage as it occurred at that time when he killed four people. * * * * * * "* * * As I said I think that society has to protect itself from any irrational outbursts and therefore I would think of Ben's inpatient hospitalization in terms of years in which he would have to document his behavior, that he is able to conform his conduct on a sustained basis. And the people that are working with him have to be satisfied that yes, we are not letting loose in society a person who could be a menace. Every reasonable precaution must be taken in this area. And I think that we would want to error on the side of longer hospitalization than shorter hospitalization." In view of this testimony, the trial court's finding is not to be rejected as lacking evidentiary support. Citing Kent v. United States, 130 U.S. App.D.C. 343, 401 F.2d 408 (1968), in which the waiver of jurisdiction by the district court upon the remand of Kent was reversed on the grounds that the district court failed to give adequate consideration to the possibility of civil commitment, appellant here asserts that the trial court failed to give adequate consideration to that possibility. Kent involved a psychotic youth. There was no evidence in this case that appellant was psychotic. The decision of the District of Columbia Court of Appeals in Kent is wholly unpersuasive as a basis for error on the part of the juvenile court in this case. Appellant asserts that the trial court made no finding as to the suitability or unsuitability of the juvenile law process for the rehabilitation of appellant. Such an argument ignores the necessary import of the trial court's findings. The fact that appellant had not previously been the subject of juvenile court action did not preclude the finding by the trial court of the unsuitability of retention of juvenile jurisdiction. Unfortunately juvenile courts are frequently presented with cases where the entire gamut of the facilities of that institution have been made available to a child, without beneficial results. In such a case the futility of further efforts within the juvenile system becomes an obvious factor in that court's relinquishment of jurisdiction. However, waiver is not to be conditioned upon lack of success in the juvenile *252 process, when the court, as it did in this case, concludes that the relevant factors, properly found and considered, lead to the conclusion that the juvenile system is not the proper forum for the handling of the particular youth involved. Upon a review of the juvenile court's findings in the light of the evidence, this court cannot say that its conclusion to waive jurisdiction amounted to an abuse of discretion and no reversible error may now be predicated upon the action of that court. II Suppression of Confessions A Confession to Officers When the sheriff of Nodaway County and his deputy and members of the Missouri State Highway Patrol arrived at the Merrigan residence following the discovery of the bodies of the four members of the family, they interrogated neighbors and others in an effort to determine who might have committed the offenses. Information obtained by the officers led them to Benedict Kemper. At around 11:30 P.M. on October 11, the sheriff called the Fourth Circuit Juvenile Officer, Mr. Chamberlain, at his home in Rock Port and asked him to come to Conception. The sheriff told Chamberlain they had four murders on their hands and wanted to question a juvenile. Chamberlain met county and state officers at the Merrigan house and went with them to the Kemper residence, where they arrived at around 1:00 A.M. Mr. and Mrs. Kemper and a daughter were at the house when the officers arrived. Chamberlain, the sheriff and Sergeant Hollingsworth of the Highway Patrol went to Benedict's bedroom on the second floor of the house. The officers awakened Benedict and asked him to dress and come downstairs with them. He did so. Benedict, Sergeant Rhoades of the Highway Patrol, Sheriff Middleton and Chamberlain sat around a dining room table. Mr. and Mrs. Kemper and their daughter were also in the room. According to Chamberlain, he read the Miranda warnings from a card and handed the card to Benedict and asked him to read it. He asked Benedict whether he understood the warnings. Benedict indicated that he did and Chamberlain asked him to initial the card and he did so. Chamberlain said that they told Ben "why we were there." Chamberlain began the questioning. According to Sergeant Rhoades, Chamberlain asked several questions which produced no incriminating response. Rhoades then took over the questioning and began by pointing out that a .22 shell casing had been found at the scene of the killings and that the Patrol could identify the weapon from which the shells had been fired. (Mr. Kemper had given the officers a .22 caliber rifle with which Benedict hunted when they came to the house.) According to Rhoades, at around this juncture Benedict, by a nod of his head, indicated his involvement in the affair. Rhoades noted a reluctance on the part of Benedict to speak and Rhoades asked whether he would like his parents to leave the room. Benedict gave an affirmative response and Rhoades asked the father, mother and daughter to leave the room. They went to a porch where the door was closed and they could not hear any further interrogation. Further interrogation produced details of the event. After approximately 30 minutes of questioning, the interrogation ceased. The sheriff placed Benedict under arrest and took him to the county jail. No written statement was obtained. A motion to suppress the statement was filed in the circuit court. A hearing was held on the motion. The trial court concluded that Chamberlain would not be permitted to testify to any statement made to him because such statement was used in the juvenile court proceedings and was thus made inadmissible in the criminal proceedings by § 211.271, RSMo 1969. The trial court also suppressed the use in evidence of a sheath knife which Chamberlain obtained in the course of the interrogation of appellant *253 and some items of clothing which Chamberlain had received from appellant's mother. The trial court held that Sheriff Middleton and Sergeant Rhoades would be permitted to testify to statements made to them. The court made a Jackson v. Denno finding as to the voluntariness of the statement and concluded that it was admissible. Sergeant Rhoades testified over objection at the trial to the interrogation of appellant and to the statement of appellant admitting the killings and providing details of the occurrence. On this appeal, the use of the appellant's admissions is attacked as erroneous on numerous grounds. One ground, that the admissions were given to the juvenile officer, is meritorious. Having reached such conclusion, the other grounds of objection need not be considered. Section 211.271(3), RSMo 1969, provides: "After a child is taken into custody as provided in section 211.131, all admissions, confessions and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter." This provision has been construed and applied in three recent decisions of the Supreme Court en banc. In State v. Wright, 515 S.W.2d 421 (Mo. banc 1974), a juvenile suspected of robbery and murder was in juvenile custody. Police questioned the defendant at the juvenile court in the presence of a deputy juvenile officer and the defendant's mother. The juvenile officer informed defendant of his constitutional rights, advised him that because of his previous juvenile record he would probably be certified to stand trial as an adult and that he might receive a death sentence on such a trial. The police officers then took over the questioning and obtained a confession which was subsequently used in defendant's criminal trial which resulted in a conviction. In rejecting the contention that the statement was made to a juvenile officer within the meaning of § 211.271(3), the court held (515 S.W.2d 430): "* * * The mere presence of the juvenile officer to warn the youth of his rights and to make sure that they were accorded to him, when all the facts and circumstances are considered, did not make the confession to the police officer a statement to the juvenile officer." The court stated the applicable rule to be "* * * that if, after he has been granted his federal constitutional Fifth and Sixth Amendment rights, a juvenile subject to jurisdiction of the juvenile court makes a voluntary statement to someone other than a juvenile officer or other juvenile court personnel, and if it is made clear to the juvenile that criminal responsibility can result from any statement he makes and that the questioning authorities are operating as his adversaries rather than his friends, such statements are admissible in evidence against the juvenile in a criminal trial." That rule was applied in State v. Rone, 515 S.W.2d 438 (Mo. banc 1974). There a juvenile robbery suspect was arrested by police, turned over to juvenile authorities and returned to the police for questioning in the presence of a deputy juvenile officer. The police interrogation resulted in a confession. In rejecting the argument based on § 211.271(3), the court stated (515 S.W.2d 441): "Applying [the Wright] rule, we note that prior to interrogation defendant was given a Miranda warning which included information that any statement given could be used against him in court. A deputy juvenile officer was present as an observer during all of the interrogation. Defendant was interrogated in an adversary situation by a person he knew to be a police officer and the statement made was to that officer, not to the bystander juvenile officer. Defendant makes no complaint that there was any coercion or any mistreatment. In the hearing on the admissibility of the confession, he stated that his confession was voluntary. In that testimony he recognized *254 that anything he said could be used against him in any subsequent proceedings in court. We conclude and hold that defendant's confession was admissible under the rule announced in Wright." In State v. McMillian, 514 S.W.2d 528 (Mo. banc 1974), the Wright rule resulted in the conclusion that a statement in response to police interrogation, made after a juvenile officer had given an explanation of rights, referring only to proceedings in the juvenile court, was inadmissible because the youth had not been adequately warned of the possible use of the statement in a criminal prosecution as an adult. The interrogation in this case occurred before these decisions and the officers involved did not have the benefit of the guidelines which such decisions prescribed. Essentially those guidelines require nonparticipation by the juvenile officer in the questioning process, beyond an explanation of his rights to the juvenile and a showing that the juvenile was aware of the consequences of his making a statement insofar as criminal responsibility is concerned. The conduct of the questioning in this case did not meet those requirements. There is no question that the juvenile officer went beyond an explanation of appellant's rights and participated actively in the interrogation. It is clear that the juvenile officer opened the interrogation with questions designed to provide answers linking appellant with the offenses. The state contends that the juvenile officer's questions produced no incriminating answers and that the damaging responses were to Sergeant Rhoades's questions. That reasoning, however, misses the point of the Wright rule which requires the juvenile officer to refrain from participating in the questioning if the interrogation is to be a police as distinguished from a juvenile interrogation. In this case, for instance, the testimony of the juvenile officer and of Sergeant Rhoades is at odds as to the extent of the former's participation. According to Chamberlain he "principally" asked the questions. He also said: "I don't think any of us ever ceased asking questions." He stated that after Sergeant Rhoades asked several questions, he and Sheriff Middleton asked some. Rhoades testified that Chamberlain's questioning ceased before incriminating replies were received from appellant, but Chamberlain's testimony that he never stopped questioning would have to be ignored if Rhoades's recollection is to be relied upon. As long as the juvenile officer participates in interrogation, there cannot exist the adversary atmosphere required by Wright to make juvenile confessions admissible in criminal proceedings, under § 211.271(3). Another problem here is that the evidence did not show that it was made clear to appellant that criminal responsibility might result from any statement he made. There was no testimony of any direct warning to that effect. The state relies upon the presence of police officers who were either known to or introduced to appellant as such. However, this case presents an unusual situation in that, only some 12 hours before, the juvenile had been interviewed by the juvenile officer, in the company of a deputy sheriff, in what appears to have been a meeting to provide the basis of handling of appellant within the juvenile system. In such circumstances, reliance upon appearance alone is not a sufficient compliance with the Wright requirement and the particular circumstances distinguish this case from Rone, where the appearances were held sufficient to meet the Wright requirement. B Statement to Jail Inmate On April 2, 1973, the Judge of the Juvenile Division of the Nodaway County Circuit Court entered an order for the change of the place of detention of appellant from the Nodaway County jail to the Andrew County jail. This order was made because of the inadequacy of the Nodaway County facility for the detention of juveniles and the superior facilities of the Andrew County jail. On April 3, 1973, appellant was taken to the Andrew County jail. He was placed in *255 the security section on the first floor of the jail. An iron door which might have been closed and would have separated the security area from the rest of the jail remained open during the period here pertinent. On October 12, 1972, Raleigh Lee Landess, 27 years of age, entered the Andrew County jail to serve a six-month sentence for assault. Before appellant entered the jail, Landess had slept in the security section, but when Kemper was placed there, Landess slept in the so-called "Juvenile Section," on the first floor of the jail. Landess was discharged from imprisonment on either April 10 or 12, 1973. While appellant was in the jail, Landess "had the run" of the place. He could not enter the security section but from the outside of that area he could see and talk with appellant. He and appellant spent several hours every day playing cards through the bars. Landess brought Kemper his three daily meals on most of the occasions during the 9 or 10 days both were in the jail. A short time after Kemper was placed in the jail, Landess went to the security area and asked Kemper if he wanted a cup of coffee. Kemper said he did and Landess brought it to him. The two started playing cards and talking. Kemper asked Landess if he knew what he was in there for and Landess said "Yes" and asked, "Well, did you do it, are you guilty" and Kemper said he was. After Landess satisfied Kemper that he was not a police "plant," Kemper told him the details of the affair. According to Landess, he subsequently discussed the case with Kemper on numerous occasions and discussed "bits and pieces" of it, but Kemper changed only his first story that he walked in the front door of the Merrigan house and said he hid in the basement and came up a different way. According to Landess, the Andrew County sheriff asked him on some occasion whether Kemper had told him anything and Landess made no reply. Landess was discharged from jail at 9:00 A.M., April 10, 1973, according to the sheriff (Landess said the date was April 12, 1973.) When he was discharged, he went to the sheriff's office. Sergeant Rhoades was in the sheriff's office and he and the sheriff asked him whether Kemper had told him anything. Landess's father had come to take him from the jail and he asked his father whether he should tell the officers anything. His father advised him to do so and Landess told them what Kemper had said to him. Sergeant Rhoades reduced the statement to writing and Landess signed it and swore to its truth before a notary public. A motion to suppress the statement and testimony of Landess was filed on behalf of appellant, based upon the fact that, during the period of his confinement while Landess was in the jail, he was permitted to be in contact with Kemper and Kemper was not separated from adult prisoners as required by § 211.151, subd. 1(4), RSMo 1969. The motion also alleged a violation of right to assistance of counsel and violation of the privilege against self-incrimination. A hearing was held on the motion and the motion overruled. Landess testified at the trial and related the details of the incident as Kemper told them to him. Appellant now contends that the admissions made to Landess were the "fruit" of an illegal detention and that their admission in evidence violated appellant's rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Art. I, §§ 10, 18(a) and 19 of the Constitution of Missouri, 1945. Section 211.331 2., RSMo 1969 (applicable under § 211.341 1. to the detention facilities here provided) states: "The place of detention shall be so located and arranged that the child being detained does not come in contact, at any time or in any manner, with adults convicted or under arrest, and the care of children in detention shall approximate as closely as possible the care of children in good homes." There can be no question that this statute was not complied with as appellant obviously came into contact with Landess, a convicted adult. The question is the *256 effect of such violation upon the admissibility of the admissions made to Landess. Based primarily upon the decisions in State v. Arbeiter, 408 S.W.2d 26 (Mo.1966), and Hamby v. State, 454 S.W.2d 894 (Mo. banc 1970), appellant would fashion an exclusionary rule applicable to all statements to whomever made by a juvenile, illegally detained. Arbeiter and Hamby did hold that statements of juveniles to police, in response to police questioning at a time when the police had failed to deliver the juvenile to juvenile officials, as required by § 211.061, RSMo 1969, may not be used against a juvenile in criminal proceedings. Hamby also extended such exclusionary rule to a statement to police while a juvenile is imprisoned in jail, without the order of the juvenile court, as required by §§ 211.141 and 211.151, RSMo 1969. These exclusionary rules are designed to prevent police from taking advantage of a situation created by their failure to comply with the law. The basic purpose behind the requirement of confinement of juveniles apart from adult prisoners is to protect juveniles from the adverse influence which adult prisoners might have upon the juveniles. It was intended to inhibit communication from an adult to a juvenile. To impose an exclusionary rule in a situation such as this would not further the essential object of the statute. Insofar as the constitutional guaranties relied upon by appellant are concerned, it is well settled that the Miranda decision, which has as its basis the constitutional guaranties here invoked, does not apply to volunteered statements of a defendant while in police custody. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Gregg v. State, 446 S.W.2d 630, 632[12] (Mo.1969); State v. Wintjen, 522 S.W.2d 628, 630[6] (Mo.App. 1975). The trial court did not err in overruling the motion to suppress the statements made to Landess or in allowing Landess to testify at trial to the statements. In view of the trial error subsequently considered, the state's contention that the admission of Rhoades's testimony regarding the statement of appellant is, in view of the admissibility of Landess's statement, harmless error, will not be considered. Of course, in the event of a new trial, the testimony of Rhoades (or Sheriff Middleton) to the statement should not be introduced. III Alleged Trial Errors A Failure to Instruct on Second Degree Murder As above stated, Doctor Gaitonde testified that appellant has an "explosive personality." He read to the jury from the Diagnostic and Statistical Manual of Mental Disorder, 2d Ed., published by the American Psychiatric Association, concerning this condition: "* * * `this behavior pattern is characterized by gross outburst of rage or of verbal or physical aggressiveness. These outbursts are strikenly (sic) different from the patient's usual behavior, and he may be regretful and repentant for them. These patients are generally excitable, aggressive and over-responsive under mental pressure. It is the intensity of the outburst and the individual's inability to control them which distinguishes this group.'" Further questions by appellant's counsel and answers received from Doctor Gaitonde were as follows: "To what extent did the condition which you have diagnosed here for us affect the ability of Benny Kemper to deliberate on October 10th, 1972 at the time of the alleged offense? "A. I think to a very great degree. You see, as soon as he felt that the Merrigan family, the Merrigan children, had done insulted him, had been teasing him, and no one was helping him out, nobody was taking care of them (sic), he had no place to go for comfort, and then he decided on October 10, around 7 o'clock or so, that he was going *257 to take the law into his hands. From that point on, in my opinion, the patient lacked substantial capacity to bring his conduct in conformity with the law. "Q. Could he deliberate? "A. He could not." At the conclusion of the testimony, defense counsel requested the court to instruct on second degree murder as to all four counts of the information. The court denied such request and no instructions on second degree murder were given. Appellant now contends that the failure to instruct on murder in the second degree was error. Subsequent to the trial of this case, the Supreme Court of Missouri en banc, in State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974), held that Section 552.030(3)(1) amounted to a rule of evidence making admissible evidence that, at the time of an offense, a defendant had a mental disease or defect which precluded his having a state of mind which is an element of the offense charged. In that case a defendant charged with murder in the first degree was found guilty of murder in the second degree. He had pleaded not guilty and not guilty by reason of mental defect. Testimony offered on behalf of the defendant was that he had a severe depression, a mental disease or defect, and that as a result he was unable to premeditate. On appeal, he contended that in view of this evidence, the court should have instructed the jury on manslaughter. The court sustained this contention, holding that, under Section 552.030(3)(1), the jury was entitled to consider evidence on the absence of premeditation due to mental disease or defect the same as it would have been entitled to consider other evidence bearing upon that issue. That case is controlling of the issue here raised. The presence of deliberation is the element which distinguishes murder in the first degree from murder in the second degree. As in Anderson, when evidence was presented that the appellant's mental disease or defect prevented the mental process required for the existence of that element of the offense, the jury was entitled to consider that evidence and determine whether or not it called for a finding that the offense was murder in the second degree. The state would avoid the effect of Anderson on the theory by which the court in that case distinguished State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968). Glenn was a felony murder case in which no error was found in the refusal of a second degree murder instruction to which defendant claimed he was entitled under Section 552.030(3)(1) by reason of evidence as to his mental incapacity. Apparently respondent's view of the effect of Glenn as recognized in Anderson is that in the case of felony murder, when the mental elements embodied in conventional murder in the first degree are supplied by proof of the underlying felony, Section 552.030(3)(1) may not be involved. The theory of the respondent here is that this case involved murder "by lying in wait" under Section 559.010 and that proof of the "lying in wait" supplied the elements of premeditation and deliberation and made the offense first degree murder or no offense, so that there was no error in failing to instruct on murder in the second degree. The most obvious defect in the state's argument is that this case was charged and submitted as conventional murder in the first degree. There is no need to consider the meaning and effect of "lying in wait" as used in Section 559.010. Compare State v. Kilgore, 70 Mo. 546, 556 (1879); State v. Daly, 210 Mo. 664, 109 S.W. 53, 57 (1908), and State v. Payton, 90 Mo. 220, 2 S.W. 394, 396 (1886). This case was not submitted on any theory of "lying in wait." The defendant having adduced evidence that his mental state did not admit of his having deliberated before the shootings, the court was, under State v. Anderson, supra, required to submit to the jury for its consideration an instruction on murder in the second degree, the offense for which appellant might have been found guilty had the jury considered and accepted his evidence on the issue of deliberation. *258 B Motion for Acquittal at End of Evidence Appellant's argument that his motion for acquittal at the end of all of the evidence should have been sustained is predicated upon the inadmissibility of appellant's statements, testified to by Sergeant Rhoades and Raleigh Lee Landess. In view of the conclusion that the statement to Landess was admissible, this contention is without merit. C Examination of Psychiatric Witnesses In the direct examination at trial Doctor Gaitonde expressed the opinion that appellant was suffering from emotional illness or defect on October 10, 1972, and that, although he appreciated the nature, the quality and wrongfulness of his conduct, he was incapable of conforming his conduct to the requirements of the law. His diagnosis was that appellant had an explosive personality. When Doctor Gaitonde started to testify about the necessity or desirability of treatment for the condition, an objection on the part of the state was sustained. Defense counsel made an offer to prove by Doctor Gaitonde that the condition diagnosed by him was treatable, that there are specific types of clinical treatment available in a clinical facility which would lead toward improvement of the condition. The offer of proof was rejected. The defendant also sought to prove that, in his report to the magistrate court on appellant's mental state, Doctor Gaitonde had recommended that defendant be treated in a hospital. This offer of proof was also rejected. In rebuttal, the state offered the testimony of Doctor Jack and Doctor Jackson of the staff of the Fulton State Hospital. Both testified to the examination and evaluation of appellant at that institution and both concluded that appellant had no mental disease or defect which prevented his conforming his behavior to the requirements of the law. Both witnesses stated that appellant had "explosive tendencies" but they were of the opinion that his abnormality did not rise to the status of a mental disease or defect. In the cross-examination of both of these witnesses, defense counsel sought to show that appellant's condition as found by them was subject to treatment. Offers of proof to such effect as to both witnesses were refused by the court. Appellant here assigned separately error in the court's ruling with respect to the testimony of his witness and respondent's witnesses. As to the former, he contends that he was denied the opportunity of submitting an important fact concerning his mental condition, i. e., that his condition could be improved by treatment in a proper setting. As to the latter, he contends that he was not permitted to impeach the testimony of the state's witnesses by showing that appellant's mental condition was treatable. Thus the essence of appellant's position is the same with respect to both of his assignments of error, i. e., that evidence that appellant's mental condition was subject to treatment bore upon the question of whether or not he was suffering from a mental disease or defect which excluded criminal responsibility. Appellant offers no authority, either legal or medical, in support of this proposition. Section 552.010, RSMo 1969, in defining "mental disease or defect" for purposes of Chapter 552, makes no reference to the possibility of treatment as a factor to be considered in the determination required to be made in order to excuse criminal responsibility. The express exclusion of certain types of mental illness or defects would appear to exclude such element in a determination under Chapter 552. In the absence of some logical relevance to the testimony which appellant sought to adduce, its exclusion by the trial court cannot have been error. Appellant also contends that, in his opening statement, the prosecutor had referred to defendant's mental condition as "not a treatable thing." Appellant contends that this put the subject in issue. As the trial court noted when this argument was advanced there, the court had instructed the jury that what the lawyers said was not *259 evidence. Furthermore, a statement by counsel in his opening statement does not, standing alone, give rise to a factual issue. State v. Hoelzer, 493 S.W.2d 703, 705-706[2-4] (Mo.App.1973); United States v. Tomaiolo, 249 F.2d 683, 689 (2d Cir. 1957). No error may be predicated on this theory. Other matters assigned as trial error will not likely recur upon a new trial and will not be considered. For the error in failing to instruct on murder in the second degree, the judgment is reversed and the cause remanded. Reversed and remanded. All concur.

2013-10-30 06:32:43.431207+00

Jones

955 F. Supp. 1073 (1996) UNITED STATES of America v. Harry James SAUL, Ronny Snead. Nos. LR-CR-95-134(1), LR-CR-95-97(2). United States District Court, E.D. Arkansas. March 21, 1996. *1074 Timothy O. Dudley, Little Rock, AR, for Harry James Saul. William C. Adair, Jr., U.S. Attorney's Office, E.D. Arkansas, Little Rock, AR, for U.S. MEMORANDUM AND ORDER JONES, United States Magistrate Judge. The defendants, Harry James Saul and Ronny Snead, have been charged by information with the violation of 7 U.S.C. § 136j(a)(2)(G) and 18 U.S.C. § 2. The parties filed stipulations of fact in this case rather than presenting evidence at trial. The stipulations follow in part: Harry Saul Minnow Farm, Inc. is a corporation located in Prairie County, in the Eastern District of Arkansas. Defendant Harry James Saul is part owner and operator of the minnow farm, and defendant Ronny Snead is an employee of Harry Saul Minnow Farm, Inc. The alleged criminal acts of these defendants occurred on this property, each defendant acting in concert with the other to accomplish a common goal. Both defendants had applied for and completed an approved private applicator training program conducted by the Arkansas Cooperative Extension Service, and had received a private applicator restricted use pesticide license issued by the Arkansas State Plant Board. Defendant Harry James Saul had received his initial training on January 30, 1990, by County Extension Agent Steve Kelly. Both defendants received a copy of the Pesticide Applicator Study Guide (Exhibit 16), and a slideshow with dialogue (Exhibits 17 and 18) as part of their training. On August 31, 1992, defendant Harry James Saul purchased five gallons of Furadan 4F insecticide-nematicide, properly labeled (Exhibit 14) and label supplement (Exhibit 15), for the purpose of killing blackbirds and white egrets. Furadan 4F is a restricted use pesticide whose active ingredient is carbofuran. Sometime immediately prior to April 8, 1993, defendants Harry James Saul and Ronny Snead caused on one or more occasion, Furadan to be mixed with a gallon of water in a five gallon bucket containing minnows. These minnows along with grain, corn chops, that had been treated with Furadan were spread on a levee on the minnow farm for the purpose of killing blackbirds and white egrets. On or about April 8, 1993, Special Agent Kevin Wood of the United States Department of the Interior, Fish and Wildlife Service, with the assistance of Refuge Officers Darwin Huggins and Ron Parker, legally entered the lands of the minnow farm and discovered three piles of minnows (Exhibits 1, la and 2), a dead possum, (Exhibit 4), two or three dead raccoons, a dead great horned owl (Exhibits 5 and 5a), and lots of dead blackbirds on the shore of one of the minnow ponds (Exhibit 3) or close thereby. Samples from each of the minnow piles and from corn chops, together with the owl, were properly tagged and sent to the National Fish and Wildlife Forensics Laboratory in Ashland, Oregon for examination, analysis, and diagnosis. Analysis of the minnows, possum, and owl revealed they contained carbofuran. The diagnosis of the owl's death was secondary carbofuran poisoning (Exhibits 6, 6a and 7). Both defendants have made statements admitting to treating corn chops and minnows for the purpose of providing poisoned bait for the killing of blackbirds and white egrets. They admit to placing the same upon levies [sic] of ponds on Harry Saul Minnow Farm, Inc. for this purpose. The information charges that the defendants: ... did use and/or cause to be used a restricted use pesticide, Furadan 4F, an insecticide consisting of the chemical carbofuran, to be used as a poisoned bait to be placed on levees adjacent to minnow ponds to kill birds and mammals that prey upon minnows in the ponds, and to fish tanks to kill undesirable fish. The labeling on Furadan 4F containers advises of environmental hazards and warns: "It is a violation of a federal law to use this product *1075 in a manner inconsistent with its labeling." [The defendants] did use and/or cause to be used Furadan 4F insecticide, a registered, restricted use pesticide in a manner inconsistent with its labeling and for a purpose not prescribed by law ... Defendants argue that their conduct was simply not inconsistent with the labeling of Furadan when "inconsistent" is given its common-sense meaning. Defendants also assert that to the ordinary person inconsistent with the label would mean conduct which the label specifically prohibits and no such proof of specifically prohibited conduct exists in this case. The Government and the defendants quote extensively from the legislative history of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The legislative history of this Act, however, is inconsistent and inconclusive. When the Act was amended in 1978, Congress attempted to deal with the problems of enforcement which were seen both as too inclusive and not inclusive enough. Those who enforced the Act apparently found it difficult to determine what activities were indeed inconsistent with product labeling. Because of the 1978 amendment, 7 U.S.C. § 136(ee) now reads in part: The term "to use any registered pesticide in a manner inconsistent with its labeling" means to use any registered pesticide in a manner not permitted by the labeling, except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling (5) any use of a pesticide in conformance with section 5, 18 or 24 of this Act [7 U.S.C.S. §§ 136c, 136p, or 136v], or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this Act [7 U.S.C.S. §§ 136 et seq.]. Defendants argue that "permit" means to "allow or let" and that there was nothing on the label that did not allow them to use the pesticide in the manner described in the stipulation. Defendants also argue that the Court must resolve any ambiguity in their favor and cite United States v. Brummels, 15 F.3d 769 (8th Cir.1994), for the proposition that if there is a reasonable doubt regarding an alternative interpretation of the statute the rule of lenity applies and the Court must adopt the interpretation most favorable to them. The Court in Brummels, however, also states at 773: The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable. Smith v. United States, 508 U.S. 223, 238, 113 S. Ct. 2050, 2059, 124 L. Ed. 2d 138 (1993). Moreover, a court need not "determine the precise contours" of a statutory term if any reasonable construction of the term would encompass the conduct of the defendant. The statute lists specific exceptions to prohibited conduct, and the defendants do not argue that their conduct falls within any of the exceptions. After examining the Furadan 4F label and supplement (Defendants' Exhibits 14 and 15) the Court does not find a listed exception for defendants' conduct and defendants cannot reasonably argue that their conduct fits within the kind of exceptions described in the statute. Given those exceptions the Court believes that reasonably construed, the statute covered their conduct. *1076 The Court, therefore, finds beyond a reasonable doubt that the defendants' conduct was not permitted by the product's labeling and thus violated the statute's prohibitions.

2013-10-30 06:32:43.433104+00

Palmore

535 S.W.2d 71 (1975) Dottie Frances CHANDLER, Appellant, v. William CHANDLER, Appellee. Court of Appeals of Kentucky. October 3, 1975. C. B. Creech, Creech, Hogg & Williams, Ashland, for appellant. James P. Stavros, Wilson & Stavros, Ashland, for appellee. PALMORE, Justice. By an agreement incorporated therein the judgment dissolving the marriage provided that the mother, Dottie Chandler, "shall have the care, custody and control of the parties' child, William Paul Chandler, age 2½, and the Second Party [William Chandler, the father] shall have reasonable visitation rights." It was entered on August 2, 1974. On October 30, 1974, on its own motion ex parte, without any notice or hearing, the trial court entered an order redocketing the proceeding and, "Upon the basis of information received by the Court," determined that the best interests of the child would be served by transferring its custody to "the Paternal Grandparents of said child," whereupon it was so directed. A copy of this order was mailed to and received by the child's mother. Meanwhile, on October 26, 1974, at Cleveland, Ohio, where Dottie was seeking employment, she and William signed an agreement specifically recognizing that the child "is in the legal custody of Dottie Chandler and will remain as such," but transferring temporary custody to the father "until Dottie Chandler has definate [sic] plans for Billy's care. Such as (1) In the event Dottie returns to Ky. to live permanently. (2) Dottie has proper facilities available for Billy's care while she works and (3) In the event that Dottie remarries." Testifying later, William explained that he had come *72 to Cleveland at Dottie's request to get the child and that he signed the agreement because "I figured I would have to sign it for to get him back or I would get picked up for kidnapping." On December 26, 1974, Dottie moved for an order returning custody of the child to her. In response, William asserted that by an order of the Boyd County Court dated November 20, 1974, his father and mother had been appointed as guardians for the child, and that Dottie had been notified but had not appeared at the hearing on their application for such appointment. The motion was denied without a hearing, but upon a renewal the trial court held a hearing and then entered findings of fact, conclusions of law and a final order again denying the motion. It would be very helpful, and might sometimes obviate the time and expense of appeals, if lawyers and judges would pay some attention to the statutes governing matters of this sort. The statute applicable to this proceeding is KRS 403.340. It sets forth the only way in which a custody decree may be modified within two years after its date. This record discloses no semblance of compliance with it. There was no authority for the order of October 30, 1974, and the fact that Dottie received a copy does not legitimate it. There has been no motion by either party that the judgment of August 2, 1974, be modified, and the final order of the trial court refusing to enforce it was erroneous. Since there appears to be some confusion as to the nature of a parent's rights as against those of nonparents with respect to child custody, the rule is that not only must it be shown that the child's welfare will be better served under the custody of the nonparent, but also it must be found that the parent is not a suitable custodian. Cf. James v. James, Ky., 457 S.W.2d 261, 263 (1970); Bond v. Shepherd, Ky., 509 S.W.2d 528, 529 (1974). Neither KRS 403.270 nor KRS 403.340 modifies this principle. The guardianship proceeding in the county court is not relevant to the matter of custody. The order is reversed for entry of a new order consistent with this opinion. All concur except LUKOWSKY, J., not sitting.

2013-10-30 06:32:43.486996+00

Thompson

955 F. Supp. 1441 (1997) Johnny REYNOLDS, et al., Plaintiffs, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants. Civil Action No. 85-T-665-N. United States District Court, M.D. Alabama, Northern Division. January 21, 1997. Leonard Gilbert Kendrick, Montgomery, AL, Richard J. Ebbinghouse, Abigail P. van Alstyne, Robert L. Wiggins, Jr., Jon C. Goldfarb, Gregory O. Wiggins, C. Paige Williams, Rebecca Anthony, Gordon, Silberman, Wiggins & Childs, Birmingham, AL, Julian L. McPhillips, Jr., McPhillips, Shinbaum, Gill & Stoner, Montgomery, AL, Rick Harris, Glassroth & Associates, Montgomery, AL, for Johnny Reynolds, Cecil Parker, Robert Johnson, Frank Reed, Onida Maxwell, Martha Ann Boleware, Peggy Vonsherie Allen. Abigail P. van Alystyne, Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for Florence Belser. Florence Belser, Montgomery, AL, pro se. Raymond P. Fitzpatrick, Jr., R. Scott Clark, J. Michael Cooper, Fitzpatrick, Cooper & Clark, Birmingham, AL, for William Adams, Cheryl Caine, Tim Colquitt, William Flowers, Wilson Folmar, George Kyser, Becky Pollard, Ronnie Pouncey, Terry Robinson, Tim Williams. Thomas R. Elliott, Jr., Allen R. Trippeer, Jr., C. Dennis Hughes, Stephen L. Scott, London & Yancey, Birmingham, AL, William K. Thomas, R. Taylor Abbot, Jr., Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, AL, William H. Pryor, Jr., Attorney General, Montgomery, AL, Patrick H. Sims, Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, AL, for Jimmy Butts, Halycon Vance Ballard, Department of Transportation, State of Alabama, Department of Personnel, State of Alabama, Fob James. ORDER MYRON H. THOMPSON, Chief Judge. The issue now before the court is defendant Alabama Department of Transportation's compliance with article XVI of consent *1442 decree I[1] and with orders of this court entered on June 26, 1996, reaffirming the need for such compliance.[2] For reasons that follow, the court concludes that the department has failed to comply with the article and prior court orders. I. BACKGROUND The relevant and salient events leading up to the submission of this issue are as follows: • This lawsuit was filed in May 1985. The plaintiffs charged the defendants with employment discrimination based on race in the Alabama Department of Transportation. The plaintiffs are African-Americans, and they represent a class of African-American merit and non-merit system employees and unsuccessful applicants. The defendants include the Alabama Department of Transportation, the Alabama State Personnel Department, and several state officials. The plaintiffs base this lawsuit on the following: Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17; the fourteenth amendment to the United States Constitution, as enforced by 42 U.S.C.A. § 1983; and 42 U.S.C.A. § 1981. The jurisdiction of the court has been invoked pursuant to 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 2000e-5(f)(3). • The trial extended over several months in 1992, but ended before completion when the parties announced that they might be able to settle the litigation. • In 1993, the parties reached a partial settlement, subsequently embodied in three consent decrees. In the wake of this new settlement, the court allowed a group of non-class members — consisting mostly of white employees of the Department of Transportation and now commonly referred to as the "Adams intervenors" — to intervene and challenge any race-conscious provisions in the settlement. Reynolds v. Roberts, 846 F. Supp. 948 (M.D.Ala.1994). • On March 16, 1994, the court approved one of the consent decrees, now known as consent decree I.[3] • Article XVI of consent decree I consists of two parts: a "Temporary special training program" and a "Regular Training Courses" program. The article provides as follows: "1. Temporary special training program: During the first calendar year following the effective date of the Settlement Decree, the Highway Department will develop and provide to all black employees a temporary special affirmative action training program with the goal of assisting such employees in progressing in career paths within the Highway Department. Such program will be provided again during the years 1997 and 1999. "2. Regular Training Courses: During the term of this Settlement Decree, the State Highway Department will offer training courses to employees subject to and in accordance with the provisions of the following subsections: (a) The employees to whom such training courses will be offered will be all Highway Department employees who are working, during the calendar year in which the courses are offered, on a merit system job and have worked at least 540 hours of work during such year or the prior year on such job; provided, however, that Laborers will be treated the same as all HMT's for purposes of eligibility for such training courses. (b) The training courses to be offered to such employees are set forth in the attached Appendix ___ to this Settlement Decree and a course or courses designed to clarify and update black employees on the procedures to be followed and qualifications, training, and experience to be credited in filling higher classified jobs within the Highway Department. (c) The Highway Department will monitor the enrollment of employees taking training courses in order to ensure to the extent practicable that interested *1443 black employees are receiving their fair share of participation in such training courses. (d) The training courses to be offered pursuant to the Training section of the Settlement Decree will be started within 120 days after the effective date of the Settlement Decree and thereafter will be offered on an annual basis. "3. The training courses provided for by this Article will be offered to the employees eligible therefore, with such employees having the option to accept or decline the training courses. Offers and declinations of training opportunities shall be documented in writing and signed by the affected employee."[4] • On May 28, 1996, Special Master Winn S.L. Faulk entered a recommendation for the disposition of the grievance of plaintiff-class-member David Lee Sims that the Transportation Department had violated article XVI.[5] With regard to Sims's grievance, the Special Master made a number of specific findings, including the following: that "the current system of on-the-job training, which requires that an employee who desires training ask a knowledgeable fellow employee to conduct such training during breaks, lunch hours and slack time is not calculated to provide the sort of training that is needed to overcome the effects of past racial discrimination in the Department of Transportation"; that, "While on-the-job training almost invariably has its place in industry, it can rarely serve as the sole means of training, particularly where there is no formal system for assuring that it is made available to all employees on an equal basis"; and that "it appears that whether a particular employee receives training is ultimately left to the discretion of a non-supervisory fellow employee, who operates a particular piece of equipment, who has no formal obligation to conduct such training, and who may be jealous of his position and unwilling to share his knowledge."[6] The Special Master further observed that "it seems somewhat disingenuous to proffer a training program in which the white beneficiaries of past race discrimination are expected to share knowledge they gained through such discrimination with the victims of the past discrimination without substantial leadership and influence being exercised by higher management within the Department of Transportation" and that it "is rather optimistic to expect individual victims to have the temerity to demand such training without active encouragement from higher management."[7] The Special Master then concluded that the "general unavailability of ... training poses a serious impediment to the advancement of Mr. Sims and other aspirants."[8] The Special Master recommended that the court order the Department of Transportation "to formulate immediately a formal, comprehensive training program" for class members, as required by article XVI.[9] He also recommended that the department provide Sims with "thorough training in the operation of all types of machinery as may be listed from time to time in the announcements of continuous merit system examinations as being required `knowledge, skills and abilities', along with training in any other services described as being part of the `kind of work' in such announcements."[10] • There were no objections to the findings or the recommendation by the Special Master,[11] and by order entered on June 26, 1996, the court required that the department file a report "reflecting full compliance with all of the requirements of article XVI by 4:00 p.m. on August 1, 1996."[12] The court required that the report "include, but be limited to, the following: (a) a description of the temporary *1444 special training program for black employees, required by article XVI, ¶ 1; (b) a description of the regular training courses to be offered to all employees, required by article XVI, ¶ 2; and (c) a description of the procedure for monitoring employee use of the training programs, required by article XVI, ¶ 2(c)"[13] • In another order entered on June 26, 1996, the court made the following observations about the defendants' failure to comply with consent decree I: "The recent history of this litigation reflects that defendants Alabama Department of Transportation and Alabama State Personnel Board have failed to comply with many of the provisions of consent decree I. In addition, for whatever reason, the plaintiffs have not monitored sufficiently the defendants' compliance with the decree. A brief survey of recent orders of the court demonstrates this problem. • On June 26, 1996 (Doc. no. 1091), the court entered an order regarding the defendants' failure to comply with the provisions of article XVI regarding the creation and implementation of training programs. • On May 24, 1996 (Doc. no. 1033), the court entered an order regarding the defendants' failure to timely comply with articles IV and XV, requiring the defendants to complete the study of multigrade jobs and perform an analysis of individual reclassification requests. • On April 23, 1996 (Doc. no. 989), the court entered an order requiring the department to file a report reflecting that it had complied with article XIII, ¶ 5(b), requiring the department to hire members of the plaintiff class. • On February 7, 1996 (Doc. no. 922), the court entered an order requiring the defendants to file monthly reports pursuant to article XIX; this order was prompted by the State Personnel Board's failure to comply with the provisions of articles II, III, IV, and XV."[14] The court concluded that "This survey makes clear that the defendants have failed to live up to the burdens they imposed on themselves when they entered into consent decree I."[15] The court also noted that "This is not the first time that the court has attempted to ensure that the parties comply fully with the decree. In the February 7 order, the court considered, but ultimately declined, the appointment of a monitor to keep the court informed of the parties' efforts to comply with the obligations imposed on them by the consent decree. Although the court again declines to appoint such a monitor, the time has come for the parties to consider seriously whether they should do so on their own. An advantage to having such a monitor would be to ensure that the parties complied with the decree in an organized way, rather than having disputes come before the court piecemeal. However, as stated, the court is not now ordering the appointment of a monitor."[16] The court then ordered that, by "August 1, 1996, the parties shall submit a joint omnibus report reflecting the following as to each provision and subsection of consent decree I, with each considered and described separately:" "(1) Whether there has been full compliance; (2) If there has been full compliance, the report shall include the following: (a) The date of full compliance; (b) Whether compliance was timely; and (c) A detailed description of the actions taken to comply; and (3) If there has not been full compliance, the report shall include the following: (a) Whether there has been partial compliance, and the extent of such partial compliance; (b) The reason for the failure to comply fully; (c) The date on which the parties expect that full compliance will be achieved; and *1445 (d) A detailed description of the steps the department will take to achieve full compliance."[17] • The Department of Transportation was given an extension of time to respond to the first of the June 26 orders, and, on September 25, 1996, the department filed its report. The substantive content of the report in regard to article XVI was less than one page, stating essentially that, as to ¶ 1 of article XVI, they have established a "a career path training program," and that, as to ¶ 2, "training is monitored on a monthly basis and a report is generated monthly."[18] • On September 30, 1996, the defendants filed a response to the second June 26 order, repeating essentially what had been said in the September 25 response.[19] II. DISCUSSION The plaintiffs contend that the Transportation Department's reports of September 25 and 30 completely fail to comply with the court's orders of June 25, and, in particular, to the extent the orders seek enforcement of ¶ 1 of article XVI. In a belated brief filed on October 11, 1996, the department responds essentially that it has complied with ¶ 1 by putting into place and now monitoring a "career path counseling" program for African-American employees.[20] Under this program, black employees receive counseling as to their "current qualifications," their "aspirations ... in the department," the "types of training, education, and job experience the employee needs to pursue in order to advance in the chosen field," and how to pursue training and education both within and outside the department.[21] In other words, the department argues that its obligations under ¶ 1 extend to only procedural advice on where and how to fill out applications, on where and how to pursue training already available, and on how the merit system works generally. The department's reading of its obligations under ¶ 1 is improperly and grossly constricted. To be sure, the "temporary affirmative action training program" required by ¶ 1 has the "goal of assisting [African-American] employees in progressing in career paths within the Highway Department."[22] But, as is explained below, this goal is to be met through substantive and aggressive training of individual African-American employees in knowledge, skills and abilities needed because the department discriminatorily kept them in lower and less desirable classifications and lines of progression and because, as a result, they now lack necessary on-the-job training and experience; the goal cannot, and under ¶ 1 was not intended to, be met merely through some type of passive career path counseling. At the fairness hearing held on January 19, 1994, on the consent decree I, the court was specifically led to believe that ¶ 1 of article XVI would require that the Transportation Department provide for substantive training in skills to its African-American employees, and, in particular, "on-the-job" "remedial training" in "skills" they did not "pick up" in "lower rated jobs" because of the department's past discriminatory acts.[23] At no time did anyone argue or even suggest that the goal of ¶ 1, while admittedly "progress[] in career paths," was to be achieved solely through "counseling" about career paths. Paragraph one dealt with lost opportunity for, and a current firm commitment to make up for and provide, substantive skills training, not merely counseling about how otherwise to obtain such skills. In response to objections to article XVI, the court explained at the hearing that it understood ¶ 1 of the article to mean the following: *1446 "I'm assuming that's what the — Paragraph 1 is what the objections are directed to, although they don't particularly say that, but the — it does require that a special training program be provided to black employees and the reason for that provision is to aid those persons who in the past have been denied movement into jobs that would provide on-the-job training, with special training so that they don't — so that they are not limited to just those skills that they picked up i[n] the lower rated jobs, but that they can pick up skills that they have missed as a result of past decisions not to appoint them. The evidence shows that to be a problem for black employees, not a problem important [to] white employees. And that's the reason that the remedial training is being given."[24] None of the counsel present at the hearing took issue with this reading of ¶ 1 of article XVI as providing for substantive remedial training in skills, and it was based on this reading that the court approved consent decree I.[25] The Special Master echoed this understanding of the department's obligations under article XVI in his findings that "the current system of on-the-job training ... is not calculated to provide the sort of training that is needed to overcome the effects of past racial discrimination in the Department of Transportation."[26] The Special Master did not recommend career path counseling for Sims, but rather that Sims receive "thorough training in the operation of all types of machinery as may be listed from time to time in the announcements of continuous merit system examinations as being required `knowledge, skills and abilities', along with training in any other services described as being part of the `kind of work' in such announcements."[27] The Special Master was, therefore, not talking about career path counseling; he was talking about substantive training in the "knowledge, skills, and abilities" denied African-Americans as a result of the department's past discrimination.[28] The department objected to neither these findings of fact nor this understanding of its obligations under article XVI. Moreover, the department's reading of ¶ 1 of article XVI is impermissible under the canons of contractual construction.[29] Other provisions in consent decree I provide for career path counseling and training. For example, subsection 2(b) of article III provides in part that the Transportation "Department will develop and implement a program designed to achieve the following: ... Developing a procedure for informing employees regarding career paths within the Highway Department."[30] Subsections 2 and 3 of article X provide in part that the "Department will develop and disseminate to employees a written description of the in-house job titles and career paths available within the Highway Department and the merit system job classifications and Registers from which the jobs in each career path may be filled," and that, "Within 180 days of the effective date of the Decree, and thereafter on an annual basis, the Highway Department will — ... Conduct a supervisory management orientation program, open to all interested employees, for the purpose of explaining the management and supervisory positions in the Highway Department career paths and the duties and responsibilities of such jobs."[31] In light of these other provisions in consent decree I expressly providing for career *1447 path training, the department's limited reading of ¶ 1 of article XVI as also providing for such would render the paragraph superfluous. A cardinal rule of contractual construction is that, "Since an agreement is interpreted as a whole, it is assumed in the first instance that no part of it is superfluous." Restatement (Second) of Contracts § 203(a) cmt. b (1979). See also Muniz v. United States, 972 F.2d 1304, 1319 (Fed.Cir.1992) ("A cardinal rule of contract interpretation requires that an interpretation which gives meaning to all parts of a contract will be preferred to one which leaves a portion of it useless, inoperative, meaningless or superfluous."); cf. Mertens v. Hewitt Associates, 508 U.S. 248, 113 S. Ct. 2063, 2069, 124 L. Ed. 2d 161 (1993) ("We will not read the statute to render the modifier superfluous."); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391 (1992) ("courts should disfavor interpretations of statutes that render language superfluous."); Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 562, 110 S. Ct. 2126, 2132, 109 L. Ed. 2d 588 (1990) (expressing "deep reluctance" to interpret statutory provisions "so as to render superfluous other provisions in the same enactment") (citation omitted). The department's attempt to recast article XVI, and, in particular, ¶ 1 of the article, as obligating it to provide only career path counseling comes much too late. Without objection from the department, the court approved article XVI and the Special Master entered a recommendation, in both instances based on a reading of the department's obligations under the article as requiring aggressive and substantive affirmative-action training of African-American employees in needed knowledge, skills, and abilities. The court therefore agrees with the plaintiffs that the Transportation Department's September 25 and 30 reports failed to comply with the June 26 orders. The first of the orders, as stated, required the department to submit a report containing "(a) a description of the temporary special training program for black employees, required by article XVI, ¶ 1; (b) a description of the regular training courses to be offered to all employees, required by article XVI, ¶ 2; and (c) a description of the procedure for monitoring employee use of the training programs, required by article XVI, ¶ 2(c)." In its September 25 report, the department failed to mention, let alone describe, its obligations under ¶ 1 of article XVI to provide substantive remedial training in knowledge, skills, and abilities to its African-American employees. But more significantly, in its report, the department failed even to consider the careful findings of the Special Master, including that "the current system of on-the-job training ... is not calculated to provide the sort of training that is needed to overcome the effects of past racial discrimination in the Department of Transportation," and that, as to Sims in particular, the department has failed to provide the required substantive skills training in such areas as operation of equipment.[32] The department's September 25 report was not only cursory, it was arguably contemptuous of the Special Master's detailed and compelling findings of the department's failure to comply with article XVI and of the court's subsequent efforts to redress that failure department-wide. The court recognizes that the department is now represented by a third and new set of attorneys. But these and other original understandings of provisions in consent decree I must be met, and the new attorneys have an obligation to become fully familiar with them. III. CONCLUSION Finally, it is important to keep in mind that the court now has under submission two other proposed consent decrees containing "race-conscious" provisions, with which the Adams intervenors, and now even the department, take issue. Implementation of article XVI in the substantive and aggressive manner it requires would strongly draw into question the need for these so-called race-conscious provisions. And, on the other hand, the failure to do so would put in relief more strongly the need for the provisions. Therefore, all parties to this litigation — and, *1448 in particular, the department — should have a strong interest in the immediate and full implementation of article XVI. On this critical issue, the court will not let the department back peddle; and on this critical issue, the court will not relent. Previously, the court declined to appoint a monitor to keep the court informed of the defendants' success and failure at compliance. The court may have to revisit the issue, however, should the Transportation Department continue to fail to meet its obligations under article XVI, a provision the court considers to be among those at the heart of consent decree I and critical to the eventual end of this litigation to the satisfaction of all. Accordingly, for the above reasons, it is ORDERED that defendant Alabama Department of Transportation submit to the court by 4:00 p.m. on February 14, 1997, a supplemental report reflecting their plan for full and immediate compliance with article XVI of consent decree I, that is, their plan for aggressive and substantive affirmative action training of African-American employees in needed knowledge, skills, and abilities. NOTES [1] Doc. no. 553; 1994 WL 899259 (M.D.Ala. 1994). [2] Doc. nos. 1091 and 1097. [3] Doc. no. 553; 1994 WL 899259 (M.D.Ala. 1994). [4] Id. [5] Doc. no. 1037. [6] Id. at 3-4. [7] Id. at 4. [8] Id. at 5. [9] Id. at 10. [10] Id. [11] The department did object to other aspects of the Special Master's findings and recommendation. Doc. no. 1073. [12] Doc. no. 1091 (emphasis added). [13] Id. [14] Doc. no. 1097 at 1-2. [15] Id. at 2. [16] Id. [17] Id. at 3. [18] Doc. no. 1233. [19] Doc. no. 1251 at 134-35. [20] Doc. no. 1286. [21] Id. at 2-3. [22] Emphasis added. [23] Transcript of hearing held on January 19, 1994, at 70. [24] Id. (emphasis added.) [25] Objections were lodged against ¶ 1 based on a concern that white employees could not enjoy its substantive benefits. It was made clear at the hearing that the "decree does not prohibit the Highway Department providing special training to white persons. It simply doesn't require them to do that." Id. [26] Doc. no. 1037 at 3-4. [27] Id. (emphasis added.) [28] Id. at 10. [29] A consent decree has the attributes of a contract and thus the rules of construction applicable to contracts apply where appropriate. United States v. Armour & Co., 402 U.S. 673, 682, 91 S. Ct. 1752, 1757, 29 L. Ed. 2d 256 (1971). [30] Emphasis added. [31] Emphasis added. [32] Doc. no. 1037 at 3-4.

2013-10-30 06:32:43.530664+00

Adams

955 F. Supp. 1456 (1996) Douglas R. SABO, Plaintiff, v. Shirley CHATER, Commissioner of Social Security, Defendant. No. 95-1139-CIV-T-25C. United States District Court, M.D. Florida, Tampa Division. November 7, 1996. Patrick F. McArdle, McArdle & Schmoyer, Sarasota, FL, for plaintiff. Susan R. Waldron, U.S. Attorney's Office, Middle District of Florida, Tampa, FL, for defendant. ORDER ADAMS, District Judge. Before the Court is the Magistrate Judge's Report and Recommendation (Dkt. 14) advising this Court that the decision of the Administrative Law Judge ("ALJ") below should be reversed and remanded. Upon consideration of the Report and Recommendation of the Magistrate Judge, and upon this Court's review of the record, the Court finds that the *1457 Report and Recommendation should be adopted. Accordingly, it is, ORDERED AND ADJUDGED that: 1. The Magistrate Judge's Report and Recommendation (Dkt. 14) is adopted and incorporated by reference in this Order. 2. The decision of the ALJ is REVERSED. This cause is REMANDED to the Commissioner to apply the Program Operations Manual System regulation for evaluating chronic fatigue syndrome in reassessing plaintiff's disability. DONE AND ORDERED. Sept. 26, 1996. REPORT AND RECOMMENDATION JENKINS, United States Magistrate Judge. Plaintiff brings this action pursuant to the Social Security Act (the Act), as amended, Title 42, United States Code, Section 405(g) to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (the Commissioner) denying claims for disability insurance benefits under the Act.[1] The undersigned has reviewed the record, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the exhibits filed and the administrative record, and the pleadings and memoranda submitted by the parties in this case. Oral argument has not been requested. In an action for judicial review, the reviewing court must affirm the decision of the Commissioner if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). If there is substantial evidence to support the Commissioner's findings, this Court may not decide the facts anew or substitute its judgment as to the weight of the evidence for that of the Commissioner. Goodley v. Harris, 608 F.2d 234, 236 (5th Cir.1979). If an error of law was committed by the Commissioner, the case must be remanded to the Commissioner for application of the correct legal standard. McDaniel v. Bowen, 800 F.2d 1026, 1029-30 (11th Cir.1986); Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir.1983). If the reviewing court is unable to determine from the Commissioner's decision that the proper legal standards were applied, then a remand to the Commissioner for clarification is required. Jamison v. Bowen, 814 F.2d 585 (11th Cir.1987). Plaintiff contends that the decision of the Commissioner must be reversed because: 1) the Commissioner's finding that plaintiff retained the residual functional capacity to perform a full range of sedentary work is not supported by substantial evidence; and 2) the Commissioner did not properly evaluate plaintiff's complaints of pain. I Plaintiff, 39 years old at the time of his onset of disability, has a high school education and previously worked as a carpenter, cabinet maker and construction supervisor and contractor. Plaintiff asserts he became disabled on May 15, 1991 due to chronic fatigue syndrome, fibromyalgia, and depression. (T 16) The ALJ found that plaintiff had not engaged in substantial gainful activity since May 15, 1991 and had chronic fatigue syndrome and migraine headaches, but did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ determined that plaintiff's testimony and allegations regarding pain and other symptoms were not fully credible and plaintiff had the residual functional capacity to perform a full range of sedentary work. The ALJ found that plaintiff's impairments prevented him from performing his past relevant work but plaintiff was capable of performing other jobs which exist in significant numbers in the national economy. The ALJ therefore concluded that plaintiff was not under a "disability" as defined in the Act. (T 15-23) The Appeals Council affirmed the decision. (T 3-4) *1458 II Herbert F. Hope-Gill, M.D. began treating plaintiff on July 23, 1990. At that time, plaintiff complained he lacked energy. Dr. Hope-Gill's notes indicate that plaintiff had been diagnosed with fibromyalgia eight months prior to the visit. Plaintiff also had hypoglycemia and suffered from severe headaches for the past seven years. He further complained of jaw and muscle aches. Laboratory tests were suggestive of an Epstein-Barr virus infection at some time in the past. (T 111, 113) When plaintiff returned on August 30, 1990, he reported that he was no better on Zorvirax and complained of aching in his upper legs and knees. (T 109) When plaintiff returned for a re-check on October 1, 1990, he continued to state that the Zorvirax did not help and that he was still "very fatigued". He reported he fell asleep about five times a day and had insomnia at night. He was prescribed Ritalin, Prozac and Fiorinal. (T 108) On December 6, 1990 plaintiff returned with torn ligaments in his right foot and wanted to discuss his medications. He stated that he was still drowsy but "[felt] good" and was "much less" fatigued. (T 107-08) During his February 21, 1991 visit, plaintiff indicated he took about four Tylenol # 3 a day and was also using it for left thigh pain. He complained that he has headaches every day and sleeps poorly. He was prescribed Imipramine. On April 4, 1991 plaintiff reported that the medication was helping and his headaches were much less frequent. He continued to complain of poor sleep. (T 106) When plaintiff returned on May 8, 1991 he stated that his headaches had been mild for several months but he still had them almost daily. He complained of a "very deep" left thigh ache and aches in his arms. (T 105) On June 11, 1991 plaintiff reported he recently had the flu but had made a good recovery. However, he had lost five pounds in five weeks. He returned on July 26, 1991 complaining of the same symptoms. (T 104) On August 12, 1991 plaintiff requested a Cortisone injection in his left shoulder. He had lost three pounds and complained of insomnia. He returned on September 5, 1991 complaining of flu symptoms including a fever and sweats, but he stated he had been sleeping better. (T 103) On October 3, 1991 plaintiff was given a flu injection and one week later requested another Cortisone injection in his left shoulder. He continued to complain of pain in his left shoulder and five days later the pain was still "very severe". On November 18, 19991 he had gained 2 pounds but complained of suffering from the flu twice in one and a half weeks as well as a dry cough. (T 102) On January 3, 1992 Dr. Hope-Gill noted that plaintiff had gained 16 pounds in four months. Plaintiff returned on February 25, 1992 complaining he had been very sleepy the week before and continued to suffer from headaches. (T 101) The following month he reported that the injections helped his headaches but his sinuses ached. (T 100) In May 1992 plaintiff was administered a Cortisone shot for his headaches. He returned to see Dr. Hope-Gill in June and July and complained that his various medications and antibiotics were not working. (T 99) He was given another Cortisone injection in August and on September 8, 1992 plaintiff complained of a chest cold and cough. Additionally, he had lost four pounds. (T 98) On November 2, 1992 plaintiff complained that his neck was causing him pain and he was given a flu shot. Dr. Hope-Gill noted an improvement. However, plaintiff also stated he could not work because it was "so exhausting". (T 97) By December 23, 1992 plaintiff had lost four pounds. He stated that Tylenol # 3 helped his headaches. (T 96) On January 16, 1993 plaintiff reported that his leg and back pain had been worsening over the past two weeks. He also indicated that he had spent most of the last three days in bed. (T 95) On February 23, 1993 plaintiff indicated that he had applied for social security disability benefits and that the "DHEA" helped. He continued to complain of severe pain in the back and neck and chronic headaches. (T 96) Dr. Hope-Gill opined that plaintiff did not need a cane to ambulate, his range of motion was full and complete, and there were *1459 no neuro-deficits. However, he determined that plaintiff suffered from severe low back pain and fibromyalgia related to his chronic fatigue syndrome and, as a result, plaintiff suffered considerable pain when he walked. (T 94) Plaintiff also had a noticeable limp and his movement was slow. Additionally, he had considerable pain upon rotation of his neck and using his shoulders and suffered from frequent muscle spasms in his neck and back. There was no muscle weakness and plaintiff's grip strength and manual dexterity was good. (T 94) On May 21, 1993 plaintiff reported that the whole family was suffering from flu and cold symptoms. (T 93) Kala Seshadri, M.D. performed a consultative examination on plaintiff on March 5, 1993. Plaintiff complained of feeling tired, problems with insomnia, and a history of asthma. He also complained of constant stiffness in the neck and pain in the hip joints and other joints. He reported he could walk 1-2 miles on good days and has no problem climbing. He indicated his pain worsened upon bending but he was "stable lately." (T 114) Plaintiff appeared healthy and not in acute distress. A physical examination of the neck did not reveal any "JVD or carotid bruit" and his extremities revealed no edema. A musculoskeletal examination revealed no acute joint inflammation of the joints and plaintiff's range of motion, gait, grip strength and dexterity were normal. Dr. Seshadri opined that plaintiff's complaints were "out of proportion to the objective findings on examination." (T 114-115) Kenneth Kiehl, M.D. began treating plaintiff on February 20, 1987. Plaintiff reported he was currently taking Tofranil, Darvocet, and Zorvirax. (T 120) On December 1, 1988 plaintiff received a flu shot. On February 27, 1989 and March 7, 1989 and December 1, 1989 plaintiff complained of headaches and requested Tylenol # 3. Additionally, from December 1988 through May 1990, plaintiff requested and was prescribed Halcion, Librax, Polaramine, Xanax, and Parafon Forte. (T 123) On April 8, 1994 plaintiff complained of hip pain. Dr. Kiehl noted that plaintiff was taking medication for fibromyaliga. The notes also include a reference regarding possible white count syndrome. (T 118) On May 13, 1994 he complained of headaches, a sore throat, a stiff neck. Dr. Kiehl diagnosed plaintiff as having depression, psychosomatic disease, a deviated septum, questionable chronic fatigue syndrome, and questionable fibromyalgia. (T 119) Plaintiff was given a cholesterol consultation on May 24, 1994. (T 117, 121-122) Philip K. Nelson, M.D., a gynecologist, began treating plaintiff on November 8, 1993. Plaintiff reported that he was self-employed at Sabo's adult congregate living facility (ACLF). His lymph nodes were tender but not enlarged, his stance was abnormal and he had multiple trigger points. (T 130) On February 28, 1994 plaintiff complained of the flu, canker sores in his mouth, and bad nerves. On March 24, 1994 he complained of headaches and nausea. On August 1, 1994 he indicated he had seen Dr. Kiehl. (T 129) Dr. Nelson completed a Treating/Examining Source Statement of Physical Capacity for plaintiff on August 8, 1994. He opined that plaintiff's history and clinical observation indicated that his ability to lift and carry were not affected and he could lift up to ten pounds occasionally. Plaintiff could stand and/or walk up to two hours a day without interruption and sit for the same amount of time. He could climb, balance, stoop, crouch, kneel, and crawl occasionally and had no problems reaching handling and feeling. However, Dr. Nelson reported that repetitive pushing or pulling caused exhaustion and plaintiff's seeing and speaking were affected by "neurocognitive abnormalities." Plaintiff had environmental restrictions related to balance problems and exhaustion after exercise. Dr. Nelson opined that plaintiff had "activity induced fatigue and cognitive (memory, attention span) problems which make employment impossible." (T 124-25) Dr. Nelson also completed a mental residual functional capacity assessment for plaintiff. He opined that plaintiff's ability to remember locations and procedures and to understand and remember detailed instructions was *1460 markedly limited. He also was of the opinion that some of plaintiff's sustained concentration and persistence skills were markedly limited such as the ability to carry out detailed instructions, maintain attention and concentration, and sustain an ordinary routine without special supervision. (T 126) Plaintiff's social interaction skills were not limited except for his ability to get along with others without distracting them which was only moderately limited. Finally, his ability to respond appropriately to changes in work setting and to set realistic goals or make independent plans was moderately limited. (T 127) Dr. Nelson opined that plaintiff's impairments preclude "his being able to pursue and [sic] ordinary work schedule." He explained that plaintiff "requires extended rest periods after even short (1-2 hour) work schedules." He further noted that plaintiff had neurocognitive disabilities including attention deficit, spacial orientation, word reversal, and problems with mental math. (T 128) On February 16, 1993 plaintiff reported to B. Perry, an MD Adjudicator for the Office of Disability Determinations, Department of Labor and Employment Security, that he had no history of surgery. Plaintiff complained of severe headaches and joint and muscle pain. He did not suffer from any depression or mental history. Plaintiff reported taking two hour naps throughout the day on bad days. He further reported that on good days he is able to take short trips or run errands. Plaintiff stated that he was able to concentrate on simple tasks and had no difficulty with his memory. Finally, plaintiff admitted that his Cortisone injections seemed to help his hip pain. (T 91) On June 14, 1993 plaintiff's wife told W. Owens, apparently a representative of the Office of Disability Determinations, that plaintiff had no mental history and was not seeing a psychiatrist. She confirmed that he experienced pain and fatigue which prevented him from performing regular activities of daily living and working. She explained that he had good days and bad days but cared for himself and could run errands such as shopping and going to the bank. She opined that plaintiff's memory was adequate but explained that plaintiff would sometimes get down on himself because he was unable to perform the physical activities he performed in the past. (T 90) At the hearing, plaintiff testified that in 1983 he had mononucleosis and "never got totally back on my feet." (T 37) In May 1991 he came down with what he believed was the flu which he had for one month. About a week and a half after recovering he came down with the flu again. After the third time, he started getting gamma globulin injections. (T 38) Plaintiff testified he spends about ninety percent of his day in a recliner and suffers from constant cold sweats. He has the strength to walk to the bathroom and back. He also suffers nausea and lost fifteen to twenty pounds because he could not eat. (T 39) Plaintiff further testified that he has pain in his hips and his thighs. He stated that the pain gets very bad when he lifts over 40 pounds. Plaintiff further stated he had Cortisone shots in his hips, and neck and shoulder area. He also suffers from neck spasms and stiff shoulders. (T 39-40) Plaintiff testified that he had been on antidepressants for eleven years and had taken Amitriptyline and Prozac as well as Tylenol for pain and Procardia for high blood pressure and heart rate. (T 40-41) He explained that on a typical day he is up for two hours. For instance, he may be up for an hour and have 20 minutes or a half an hour of "good time" and then go back to bed. He gets up about 9:00 or 10:00 a.m. for about an hour and then naps from 11:00 to 12:00 or 12:30 p.m.. Then he does jobs around the house or runs errands. He gets back in bed in the late afternoon. After dinner he has about an hour to wind down and goes to bed about 7:00 or 8:00 p.m. (T 41-42) Plaintiff testified he drives about 70 miles a week and helps to keep up the house by fixing faucets and hanging towel bars. (T 41-42) He testified that he has tried not to rest during the day but when he pushes himself through a day he cannot function the next day. (T 43) Further, plaintiff stated that he sees Dr. Hope-Gill and Dr. Nelson, but he has more phone contact with Dr. *1461 Nelson then office visits. (T 44) Finally, plaintiff testified that he weighed about the same as in 1983 or probably "picked up some" weight. (T 47-48) III The main issue here is whether the Commissioner erred in failing to apply the guidelines set forth in defendant's Program Operations Manual System (POMS) for evaluation of complaints relating to chronic fatigue syndrome in determining plaintiff's residual functional capacity. Surprisingly, the Commissioner does not respond to this argument.[2] The ALJ determined that plaintiff suffered from chronic fatigue syndrome and migraine headaches, but he did not have an impairment or combination of impairments which would qualify him for disability. Further, the ALJ found that plaintiff had the residual functional capacity to perform a full range of sedentary work. The ALJ based the findings on the medical and documentary evidence which he found undermined plaintiff's credibility regarding his allegations of frequency and intensity of symptoms. In determining that plaintiff's testimony was not credible as well as his residual functional capacity, the ALJ did not refer to the POMS guidelines. The guidelines provide: Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Rose v. Shalala, 34 F.3d 13, 16 (1st Cir.1994), citing POMS § DI 24575.005 (1993). "[B]ecause the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant's testimony regarding [his] symptoms takes on `substantially increased' significance in the ALJ's evaluation of the evidence." Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y.1996) (citation omitted). Moreover, "[chronic fatigue syndrome] is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant's ability to perform even sedentary work ..." Id. at 253-54 (citations omitted). In evaluating a plaintiff's testimony the Eleventh Circuit has held that the Commissioner must articulate specific and adequate reasons for rejecting a plaintiff's subjective complaints of pain. Allen v. Sullivan, 880 F.2d 1200, 1203 (11th Cir.1989); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). Furthermore, the reasons given by the Commissioner for refusing to credit a plaintiff's subjective pain testimony must be supported by substantial evidence. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987). In evaluating plaintiff's credibility, the ALJ noted that objective physical examinations of plaintiff revealed no edema, joint inflammation or muscle weakness. Additionally, *1462 plaintiff had a complete range of motion and normal grip and dexterity. (T 19; 94, 115) The ALJ further noted that plaintiff reported he could lift forty pounds, drive, and perform repairs and run errands. (T 19; 39, 41-42, 91) According to the ALJ, other evidence indicated plaintiff could walk 1-2 miles, climb, and work at the ACLF operated by his wife. (T 19; 114) For instance, plaintiff's wife stated he could run errands and both Dr. Seshadri and Dr. Nelson reported that plaintiff worked at the ACLF run by his wife. (T 90; 114; 130) The ALJ also relied on the fact that plaintiff reported his pain was relieved by medication and had not complained of any side effects. (T 19; 91, 93, 96, 99-100) Additionally, other than Dr. Nelson, none of plaintiff's physician placed restrictions on plaintiff's activities. (T 20) Finally, while plaintiff testified at the hearing that he was depressed and suffered from a poor memory and a lack of concentration, he reported in February 1993 that he was able to concentrate on simple tasks and had no problems with his memory and his wife reported that plaintiff had no mental history and his memory was adequate. (T 20; 90-91) However, the ALJ failed to discuss the evidence that supports plaintiff's subjective complaints. For instance, plaintiff's July 23, 1990 blood test was positive for the Epstein-Barr antibody. (T 111) Further, Dr. Hope-Gill, one of plaintiff's treating physicians, diagnosed plaintiff as suffering from chronic fatigue syndrome. (T 94) He also diagnosed plaintiff as having fibromyalgia, a condition "not inconsistent with a diagnosis of CFS". See Fragale, 916 F.Supp. at 254. Dr. Nelson, a second treating physician, opined that plaintiff had "activity induced fatigue" and cognitive problems. (T 124-25) Dr. Kiehl, a third treating physician, diagnosed plaintiff as suffering from depression, psychosomatic disease, and a deviated septum and questionable chronic fatigue syndrome and fibromyalgia. (T 119) A fourth physician, Dr. Seshadri, examined plaintiff on March 5, 1993. Dr. Seshadri found that plaintiff suffered from problems with chronic tiredness of an unclear etiology but opined that plaintiff's complaints were "out of proportion to the objective findings on examination." (T 114-115) Of the four physicians, Dr. Nelson is the only one who specifically opined that plaintiff was unable to work. The ALJ gave little weight to Dr. Nelson's opinion, however. The ALJ explained that "Dr. Nelson's statements concerning claimant's physical and mental capabilities are conclusory and are not supported by objective evidence." (T 20) Generally, a treating physician's opinion is entitled to more weight than that of a consulting physician's opinion. Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.1984). Accordingly, substantial weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to disregard them. Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir.1991). The ALJ explained that the record indicates that plaintiff visited Dr. Nelson only two or three times and had one physical examination since the beginning of his "treatment" in November 1993. (T 19; 129-30) Further, the only positive findings by Dr. Nelson were tender lymph nodes, an abnormal stance, and multiple trigger points. (T 21; 130) The ALJ further expressed concern that there was no evidence that Dr. Nelson performed a mental evaluation of plaintiff. Moreover, the ALJ pointed out that Dr. Nelson is a gynecologist and his area of expertise is not "immune disorders, orthopedics, psychology, or psychiatry". (T 21; 44) Additionally, none of plaintiff's other physicians placed any restrictions on him or reported any significant limitations on his activities. Nor did any other physician report that plaintiff's work activity was restricted due to a mental impairment. (T 20) However, it is not unusual for a person suffering from chronic fatigue syndrome to undergo physical examinations resulting within normal limits. See Williams v. Shalala, Case No. 94-CV-426S, 1995 WL 328487, *6-7 (W.D.N.Y. May 19, 1995) ("because chronic fatigue syndrome is diagnosed partially through a process of elimination, an extended medical history of `nothing wrong' *1463 diagnoses is not unusual for a patient who is ultimately found to be suffering from the disease") (citation omitted); Rose, 34 F.3d at 18 ("lack of objective proof is what one may expect in cases of CFS"). Additionally, while plaintiff did not profess that Dr. Nelson specialized in chronic fatigue syndrome, he testified that Dr. Nelson and Dr. Hope-Gill were the only two doctors in Sarasota that "really deal with the chronic fatigue and the fibromyalgia". (T 44) Plaintiff explained that he was referred to Dr. Nelson by Dr. Bloom (an allergy specialist who had treated plaintiff at one time) when Dr. Hope-Gill retired. Dr. Bloom told plaintiff that Dr. Nelson had conducted research regarding chronic fatigue and attended numerous seminars because Dr. Nelson's wife suffered from chronic fatigue. (T 45) Further, Dr. Nelson's diagnosis that plaintiff suffered from activity induced fatigue is not inconsistent with Dr. Hope-Gill's diagnosis of chronic fatigue syndrome. Finally, only Dr. Seshadri expressed an opinion that plaintiff's complaints were disproportionate with the medical findings. However, Dr. Seshadri based his opinion on the lack of objective medical evidence. (T 114-15) The record further contains various reports that plaintiff complained of insomnia, poor sleep, depression, headaches, pain, sore throat, and fatigue. (T 95-97; 101-03; 105-08; 113-114; 119; 129) Such symptoms are consistent with chronic fatigue syndrome. See Fragale, 916 F.Supp. at 253-54. Additionally, while plaintiff reported in February 1993 that he did not have any problems with his memory or depression, he testified at the hearing that he was forgetful and had been on antidepressants for eleven years. (T 40; 91) In his May 6, 1993 request for reconsideration, plaintiff reported that he suffered from poor concentration and memory as well as depression. (T 64-69) Dr. Kiehl diagnosed plaintiff as suffering from depression on May 13, 1994. (T 119) Furthermore, while the ALJ relied on plaintiff's testimony that he could drive, he did not include any reference to plaintiff's testimony that after driving to the hearing and back, he would probably spend most of the rest of the day in bed. (T 41) In addition, plaintiff testified that his symptoms were unpredictable and explained that just because "today is a certain way doesn't mean tomorrow is going to be that way." (T 47) Although plaintiff's wife reported that plaintiff could run errands and his memory was adequate, she also reported that plaintiff experienced pain and fatigue that prevented him from performing activities of daily life. She explained that he had good days and bad days and that plaintiff "gets down on himself because he just can't do the things he used to physically." (T 90) Finally, while Dr. Seshadri reported that plaintiff worked at the ACLF and could climb, he also reported that plaintiff complained of tiredness and poor sleep at night. Further, Dr. Seshadri reported plaintiff could walk one to two miles on his good days. (T 114) (emphasis added) Accordingly, for these reasons, the court finds that the Commissioner's findings regarding plaintiff's credibility and residual functional capacity should be reversed. Upon remand, the Commissioner should apply the POMS regulation for evaluating chronic fatigue syndrome in reassessing plaintiff's disability. It is therefore RECOMMENDED: (1) The decision of the Commissioner denying disability and SSI insurance benefits be reversed and remanded consistent with foregoing. NOTES [1] This matter has been referred to the undersigned by the District Court for consideration and a Report and Recommendation. See Local Rules 6.01(b) and 6.01(c), M.D.Fla. [2] Neither the ALJ nor the Appeals Council cites to the POMS regulations in their decisions. However, it is unclear whether plaintiff argued, at that level, that the POMS regulation was applicable.

2013-10-30 06:32:43.541792+00

Cornelius

535 S.W.2d 390 (1976) Tommy COLLUM, Appellant, v. Jessie DeLOUGHTER, Appellee. No. 8337. Court of Civil Appeals of Texas, Texarkana. March 16, 1976. Rehearing Denied April 13, 1976. *391 Michael V. Killough, Killough & Killough, Dallas, for appellant. Roger Turner, Dallas, for appellee. CORNELIUS, Justice. The opinion heretofore issued in this cause is withdrawn and the following is substituted therefor. This suit was by Jessie DeLoughter to set aside a sale under *392 execution. The writ of execution was issued upon a judgment obtained by S. A. Meazelle against DeLoughter for $870.00 plus interest, cost and attorney's fees, all totaling $1,840.10. The writ was levied upon two lots in the City of Dallas. Tommy Collum, a stranger to the judgment, purchased the lots for $2,000.00 at the Sheriff's sale. The trial court, sitting without a jury, found and concluded that: (1) the property description in the published notice of sale inverted the block designations—that is, the property was described as Lot 3, Blk. 7183/33 (2007 Chalk Hill) and Lot No. 2 Blk. 7183/33 (2015 Chalk Hill) rather than Lot 3, Blk. 33/7183 and Lot. 2, Blk. 33/7183 which was the correct description, (2) the notice mailed to DeLoughter was sent by ordinary mail whereas registered mail was required by Tex.R.Civ.P. 647 as modified by Rule 21a, (3) the notice was addressed to DeLoughter at an address in Irving where he had not resided for almost a year, (4) DeLoughter was not notified personally of the sale and did not receive the written notice until nine days after the sale, and (5) the Sheriff did not give DeLoughter an opportunity to designate property which he desired be levied upon first, as required by Tex.R.Civ.P. 637. It was stipulated that the actual market value of the lots was $13,500.00. Based upon these facts and conclusions and the further fact that DeLoughter tendered into court the sum of $2,000.00 as restitution to Collum, the trial court entered its judgment setting aside the sale and awarding Collum the $2,000.00 together with $350.00 attorney's fees and all costs. Collum contends that the facts found by the trial court do not constitute such irregularities as authorize the sale to be avoided. He asserts that the notice required by Tex. R.Civ.P. 647 is perfected by mailing alone, and it is not necessary that the mail be registered or that the judgment debtor actually receive the notice. DeLoughter's address was not listed in the telephone directory, and the address used was that shown for him on the tax rolls of the county. The evidence was in conflict as to whether the property description in the notice of sale was sufficient to enable a person of ordinary prudence to locate the property. DeLoughter testified that had he been given an opportunity to point out property to the Sheriff he would have designated the unimproved one of the lots in question, which he contended was of sufficient value to satisfy the judgment. An execution sale will be set aside upon proof that it was made for a grossly inadequate price and was accompanied by irregularities which tended to contribute to the inadequacy of price. 24 Tex.Jur.2d, Executions, Sec. 137, p. 608, Sec. 138, pp. 609, 610 and cases there cited; Pantaze v. Slocum, 518 S.W.2d 407 (Tex.Civ.App. Fort Worth 1974, no writ); Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ. App. Corpus Christi 1971, writ ref'd n. r. e.). An inversion of the lot and block numbers in the notice of sale may or may not be an irregularity, depending upon the adverse effect, if any, it would have on an ordinary person's ability to locate the property. Here the trial court found such inversion was an irregularity and there is evidence to support such finding. The failure to send the notice by registered mail was also an irregularity. Tex.R.Civ.P. 647 requires the officer making the levy to ". . . give the defendant... written notice of such sale, either in person or by mail . . .". But Tex.R.Civ.P. 21a, adopted subsequent to Rule 647, provides that: "Every notice required by these rules... except as otherwise expressly provided in these rules . . . may be served . . . either in person or by registered mail . . . The provisions hereof relating to the method of service of notice are cumulative of all other methods of service prescribed by these rules." Therefore, the specific language of Rule 21a imposes the requirement of registered mail upon the general provisions for "mail" in Rule 647. *393 Under the circumstances shown in this record, we have concluded that the addressing of the notice to DeLoughter at the address shown for him on the tax rolls, and the fact that he was not notified personally of the sale did not constitute irregularities. But the failure of the officer to make any attempt to give DeLoughter an opportunity to designate property, as required by Tex.R.Civ.P. 637, was an irregularity. Pantaze v. Slocum, supra. Standing alone, none of these irregularities would be sufficient to justify setting aside the sale, but together with an inadequate price paid for the property, and the trial court's presumed finding that these irregularities were calculated to and did contribute to such inadequacy of price, they are sufficient to avoid the sale. See Tex.R.Civ.P. 299 and Nance v. Currey, 257 S.W.2d 847 (Tex.Civ.App. Dallas 1953, no writ). Moreover, it is settled that inadequacy of price, standing alone, is sufficient to justify a court of equity in setting aside the sale when the judgment debtor makes a prompt offer to make the purchaser whole by returning his investment in the property and paying all costs. Prudential Corporation v. Bazaman, 512 S.W.2d 85 (Tex.Civ. App. Corpus Christi 1974, no writ); Cox v. Wheeler, 150 S.W.2d 159 (Tex.Civ.App. Texarkana 1941, no writ); Saylors v. Wood, 120 S.W.2d 835 (Tex.Civ.App. El Paso 1938), aff'd, 140 S.W.2d 164 (Tex.1940); Moore v. Miller, 155 S.W. 573 (Tex.Civ.App. San Antonio 1913, writ ref'd); Steffens v. Jackson, 16 Tex. Civ. App. 28, 41 S.W. 520 (1897, writ ref'd); Martin v. Anderson, 4 Tex. Civ. App. 111, 23 S.W. 290 (1893, no writ). There was certainly such an inadequacy of price here as to justify the application of these equitable principles. The market value of the property was stipulated to be $13,500.00. The price paid was $2,000.00 which was less than 15% of that value. Although Collum contends that he actually paid $4,743.04 for the property since it had $2,743.04 in tax liens and assessments against it, the stipulation agreed that the "actual cash market value" of the property was $13,500.00. Whether the encumbrances were considered in arriving at this agreed value is not shown, but when for the purposes of the trial the parties have stipulated that the actual cash market value of property is a certain amount, neither the trial court nor we can go behind that stipulation and speculate that because of other considerations the value is actually less than that stipulated. It is to be presumed that the figure is a net one; that is, that all factors affecting its value have been considered in arriving at the stipulated figure. The sale was on October 1, 1974. Suit was filed on October 23, 1974. On November 15, 1974 DeLoughter tendered into court the price Collum paid for the property. Such a tender was consistent with the requirements in cases of this kind. Prudential Corporation v. Bazaman, supra; Moore v. Miller, supra. The judgment awarded Collum the sum so tendered, together with attorney's fees and his costs. Under these circumstances equity was done and the judgment should be affirmed. It is so ordered.

2023-08-22 21:22:14.582918+00

Lederberg

OPINION LEDERBERG, Justice. Can a tenant of a mobile home park be evicted for reasons other than those enumerated in the Rhode Island Mobile and Manufactured Homes Statute (mobile home act) if the tenant does not have a written lease and has remained in possession as a month-to-month or holdover tenant? Pearl Krzak (Krzak), the owner and operator of Kingstown Mobile Home Park (the park), has appealed a judgment by the Superior Court that denied her eviction claim and her constitutional challenge to G.L.1956 § 31-44-2 (the statute) and granted the counterclaims of her tenant, Michael A. Strashnick (Strashnick), for malicious prosecution and reprisal. A summary of the pertinent facts and the applicable statutes is presented as necessary for our discussion of the issues on appeal. Factual Background and Relevant Statutes Since 1946, Krzak has owned and operated Kingstown Mobile Home Park in North Kingstown, Rhode Island. The park contains approximately 125 mobile home lots, all but seven or eight of which were occupied at the time of trial, each at a monthly rental fee between $260 and $285 per lot. In 1993, Strashnick bought an older mobile home formerly owned by Krzak’s son’s mother-in-law, and he became a tenant at 29 A Krzak Road. Apparently from the beginning, the relationship between landlord and tenant was contentious. Krzak, who had a policy of not granting year-long leases unless they began in January and ended on December 31, testified that only about twenty-five of her tenants had leases and that she considered all other residents “month-to-month” tenants. Given that § 31-44-7(1)(xiv) requires that the operator of a mobile home park “[p]rovide a written lease of not less than one year unless the resident requests in writing a shorter term, or unless a resident in writing states that he or she does not desire a written lease,” Strash-nick, whose tenancy began after August 1993, refused to sign the four-month lease offered by Krzak. Instead, he requested a one-year lease, which Krzak refused. At that point Strashnick left without signing, taking with him a copy of the lease and park regulations. At the time he applied for tenancy in the park, Strashnick was required to pay a nonrefundable $140 application fee. Section 31—44—3(8)(i) states in pertinent part that “[a] prospective resident shall not be charged an entrance fee for the privilege of leasing or occupying a lot, except as provided in § 31-44-4,” which is the section relating to the sale of mobile and manufactured homes.1 Although this section was applicable to Strashnick’s purchase of an existing mobile home in the park, a nonrefundable fee was violative of Rhode Island law, and Strashnick subtracted the amount from his first rental payment. Krzak vehemently denied this *851transaction at trial, acknowledging that such a charge was illegal. Krzak’s denial was contradicted by her handwritten notation on Strashnick’s canceled check: “nonrefundable application processing fee and credit check.”2 In late November 1996, Strashnick and other residents received a notice postmarked November 27, 1996, for a rental increase effective January 1, 1997. Because G.L.1956 § 31-44.1-2(b) provides that “[a]ny person who owns, operates, or maintains a mobile and manufactured home park pursuant to the provisions of chapter 44 of title 31 shall give the mobile home owners of the park sixty (60) days written notice prior to any lot rent increase going into effect,” Strashnick enclosed a letter to Krzak in his January rental payment, explaining that in light of the improper notice, he was paying his usual rent and would comply with the increase only when he received the sixty-days’ notice provided by law. At trial, Krzak testified that in the previous five years, she had evicted only a few tenants from the park, all for the nonpayment of rent, but that she was seeking to evict Strashnick as a month-to-month tenant for “all the things that he’s done without permission.” Strashnick, in addition to other extensive renovations of his mobile home, replaced an existing metal garden shed with another shed, removed some shrubbery, and poured a concrete slab. Krzak also testified that she did “not appreciate it” when Strashnick addressed her as “Pearly baby” and used other offensive language. She expressed her frustration with Strashnick: “He wouldn’t do anything that he doesn’t feel like he wants to do, and he tells ya that, too.” The record before us revealed that differences between the parties frequently ended in Krzak’s initiating litigation, the long saga of which we need not discuss in detail for our analysis. In July 1995, Krzak filed an eviction claim against Strashnick for violating parking regulations and for erecting too large a garden shed.3 After a hearing in August 1996, a District Court judge permitted Strashnick to cure the breach and dismissed his counterclaim for “harassment.” In May 1996, as the result of another complaint by Krzak, Strashnick was permitted by a Superior Court justice to erect a carport over the then-existing concrete slab. In October 1996 and August 1997, Krzak sent notices of “Termination of Tenancy” to Strashnick, requesting that he remove himself and his mobile home from the park within sixty days. The first notice stated that Strashnick’s tenancy was “a periodic one on a month-to-month basis” and was being terminated “pursuant to Rhode Island General Laws 31-44-2 and 34-18-37.” A second notice added that the reason for the month-to-month tenancy was Strash-nick’s failure to sign a lease. Strashnick ignored both notices, and in October 1997, Krzak filed a complaint for Strashnick’s eviction as a holdover tenant. After a District Court judge found in favor of Strashnick, Krzak filed for a trial de novo in Superior Court. Strashnick responded by filing a counterclaim for reprisal under § 31-44-5, retaliatory conduct under G.L. *8521956 § 34-18-46, abuse of process, malicious prosecution, and trespass. A bench trial was held in the fall of 1998, the outcome of which is now before us on appeal. The trial justice granted Strash-nick’s motion for a judgment on partial findings because Krzak had failed to comply with § 31 — 44-2(a), which limits the termination of a mobile home park tenancy to six enumerated circumstances. The justice further ruled that a constitutional attack on § 31-44-2 — which Krzak proposed to submit should her eviction claim fail— was not ripe for consideration because the Attorney General had not been notified. Strashnick then proceeded with his counterclaim. The trial justice, after dismissing the claims for abuse of process and for trespass, awarded Strashnick $780 on the reprisal claim, and $920 for compensatory damage and $2,000 for punitive damage on the malicious prosecution claim. Krzak appealed. Constitutional Challenge In her appeal, Krzak argued that the Legislature did not contemplate creating near-permanent mobile home tenancies and that an interpretation of § 31-44-2 that limits eviction only to the six conditions specified therein would violate constitutional property rights. Although she admitted that the Attorney General’s office had not been notified before trial, she contended that the Superior Court justice erroneously refused to consider her constitutional challenge. Our review of the trial transcript revealed that Krzak based her claim for eviction “on the basic common law doctrine of holdover tenancy” and that only if the claim was not permitted on that basis, did she intend to pursue a “constitutional argument which we will brief further and submit to the Court upon proper application to the Attorney General.” In response, the Superior Court justice decided that without notification of the Attorney General, the constitutional attack was not ripe for consideration. General Laws 1956 § 9-30-11 provides in pertinent part: “In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” Similarly, Rule 24(d) of the Superior Court Rules of Civil Procedure anent intervention by the Attorney General requires: “When the constitutionality of an act of the legislature is drawn in question in any action to which the state or an officer, agency, or employee thereof is not a party, the party asserting the unconstitutionality of the act shall serve the attorney general with a copy of the proceeding within such time to afford the attorney general an opportunity to intervene.”4 We have addressed this issue repeatedly and have held that when a party “both fail[s] and neglect[s] to comply with its clear obligation when challenging the constitutionality of a state statute to ‘serve the attorney general with a copy of the *853proceedings,’ * * * [w]e do not believe that this Court should undertake to determine the constitutionality of a state statute in a given case without first affording the Attorney General the opportunity to intervene and be heard. See Crossman v. Erickson, 570 A.2d 651, 654 (R.I.1990).” Global Waste Recycling, Inc. v. Mallette, 762 A.2d 1208, 1214 (R.I.2000). Although on May 14,1998, Krzak amended her original complaint to include an attack on the constitutionality of § 81-44-2, she failed to give the required notice to the Attorney General, and thus we affirm the trial justice’s decision to preclude the constitutional challenge. In her appeal, Krzak suggested that the constitutionality of § 31-44-2 nevertheless should be considered on the merits, “due to their significance and as exception ] to the ‘raise or waive’ doctrine.” The raise-or-waive doctrine and its exception — which Krzak attempted to invoke in her appeal — are not applicable to the present case, but rather the doctrine applies to circumstances in which a party’s counsel fails to raise a specific objection to an event or to evidence during trial. See, e.g., State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999) (holding that issues that were not preserved by a specific objection at trial may not be considered on appeal). Moreover, “[w]e have indicated on more than one occasion that § 9-30-11, as a rale relating to service of process, must be followed and construed strictly.” Brown v. Samiagio, 521 A.2d 119, 121 (R.I.1987). There is absolutely no evidence that Krzak complied with the statutorily required notification of the Attorney General at any time in the course of these proceedings, including during her appeal to this Court. Consequently, we decline to consider her constitutional challenge here. Overview of § 31-44-2 Statutory Provisions Many states, including Rhode Island, have enacted statutes that set limits on the eviction of mobile home park tenants in consideration of their special circumstances. See generally Jay M. Zitter, Annotation, Validity, Construction, and Application of Mobile Home Eviction Statutes, 43 A.L.R.5th 705 (1996). Mobile homes present an economic housing alternative, but frequently are restricted to placements in mobile home parks. The resulting shortage of sites for mobile homes and the generally unequal bargaining position of tenants can lead to abuses by the landlord. Id. at 719. This is a case of first impression that examines how the statute applies in a case of an attempted eviction. Although we do not reach the constitutional issue in this appeal, given the landlord’s failure to notify the Attorney General, other courts have ruled that restrictions on eviction of mobile home tenants are not unconstitutional. See, e.g., Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881, 883-88 (Fla.1974) (holding that limiting the grounds for evicting mobile home tenants was a proper exercise of police power). The Florida Supreme Court explored the question of whether the Florida mobile home statute limiting evictions of mobile home park tenants “constitute[d] an arbitrary and unreasonable regulation by the state constituting a deprivation of property rights without process, impairment of contractual obligation, and a violation of the equal protection clause of the Constitution of Florida.” Id. at 885. The Court answered the question in the negative and explained: “We recognize the liberty and property right that every owner of a mobile home and every owner or operator of a mobile home park possesses to use his *854property in his own way and for his own purposes subject only to the restraint necessary to secure the public welfare. However, we find that Section 88.271, Florida Statutes, constitutes a reasonable and necessary regulation of that right in view of the peculiar nature and problems presented by mobile homes.” Id. Moreover, the Court stated that any constitutional challenge on the grounds that a mobile home park owner was permanently deprived of the use of his land for other purposes than a mobile home park had become moot once the Florida Legislature had enacted into law a section that permitted the eviction of tenants, if a change in use of land was desired. Id. at 887. Similarly, pursuant to § 31-44-2(a)(6) of the Rhode Island mobile home act, in case of “[c]ondemnation or change of use of the mobile and manufactured home park,” a park owner can evict tenants with proper notice. Subject to one-year notice and the payment of relocation benefits to tenants, a park owner may sell or lease a mobile home park, even if that event results in the discontinuance of the mobile home park. Section 31-44-3.2. The Vermont Supreme Court noted that “owners and renters of mobile homes * * * tend to be lower-income groups that may have difficulty finding alternative housing.” State Agency of Development and Community Affairs v. Bisson, 161 Vt. 8, 632 A.2d 34, 38 (1993). The Vermont mobile home act, which “added security from arbitrary eviction” by limiting eviction to specific narrow grounds, was held not to violate the takings clause of- the United States Constitution because a landlord was not prevented from selling his property. Id. at 38-39. The Court further stated that the provision allowing evictions only for cause was “a cléar exception to the general landlord and tenant law of Vermont, which allows evictions without cause in the absence of a written rental agreement.” Id. at 36. It went on to hold that Vermont’s landlord-tenant act and mobile home act were complementary in most instances but when they conflicted, the mobile home act would prevail. Id. at 37. The United States Supreme Court rejected the argument that the interplay between a city mobile home rent control ordinance and California’s Mobilehome Residency Law — which limited the bases upon which a park owner may terminate a mobile home owner’s tenancy — rendered “the mobile home owner * * * effectively a perpetual tenant of the park, and [that] the increase in the mobile home’s value thus represents the right to occupy a pad at below-market rent indefinitely.” Yee v. City of Escondido, 503 U.S. 519, 527, 112 S.Ct. 1522, 1528, 118 L.Ed.2d 153, 165 (1992). The Supreme Court reasoned that “[petitioners voluntarily rented their land to mobile home owners. At least on the face of the regulatory scheme, neither the city nor the State compels petitioners, once they have rented their property to tenants, to continue doing so. To the contrary, the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants, albeit with 6 or 12 months notice. * * * [T]he state and local laws at issue here merely regulate petitioners’ use of their land by regulating the relationship between landlord and tenant. ‘This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.’” Id. at 527-29, 112 S.Ct. at 1528-29, 118 L.Ed.2d at 165-66. *855Under a comparable provision in Rhode Island’s mobile home act, a change in the use of a mobile home park is one of the express conditions for which a tenancy may be terminated, subject to proper notice. Section 31—44—2(a)(6) and (b). In addition, the Supreme Court distinguished the circumstances in Yee from a case in which “the statute, on its face or as applied * * * compelled] a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy.” Yee, 503 U.S. at 528, 112 S.Ct. at 1529, 118 L.Ed.2d at 166 (citing Nollan v. California Coastal Commission, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3145-46, 97 L.Ed.2d 677, 686 (1987) (Coastal commission conditioning the grant of a building permit on the grant of a public easement); FCC v. Florida Power Corp., 480 U.S. 245, 251-52, n. 6, 107 S.Ct. 1107, 1111-12, n. 6, 94 L.Ed.2d 282, 289-90, n. 6 (1987) (FCC order limiting rates which utility may charge cable television companies for use of utility poles), and Fresh Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875, 877, 104 S.Ct. 218, 219, 78 L.Ed.2d 215, 216 (1983) (Rehnquist, J., dissenting) (requiring the purchaser of rent-controlled apartment housing to obtain permission from the rent control board to remove the property from the rental housing market). Although the Rhode Island mobile home act limits the circumstances under which a tenant can be evicted, a landowner cannot be compelled to use his land as a mobile home park, nor is he precluded from changing the use of his land, if appropriate steps are followed. See ante. Before continuing with our resolution of this case, we briefly review the provisions and purposes of the Rhode Island statute. The Rhode Island Mobile and Manufactured Homes Act (mobile home act), chapter 44 of title 31, was enacted in 1984 with an effective date of July 1, 1985. It defines seventeen significant terms to aid in the interpretation of the chapter, § 31-44-1, and, along with other provisions, sets forth the process of mobile home park licensing, § 31-44-1.7, and provides for triennial surveys by the Department of Health, § 31-44-1.8. The mobile home act establishes notice requirements for the rules and regulations of a park, § 31-44-3, and specifies the necessary procedures to be followed for an eviction of a mobile home park tenant in § 31-44-2, the section at issue in the present case. It further requires a park owner to provide a written lease of no less than one year and prohibits the operator from charging an entrance fee or from providing for one in the lease. Section 31-44-7. Pursuant to § 31-44-17, any owner of a mobile home park or any resident therein may file a complaint with the director of the Department of Business Regulation, whose decision may be appealed to the Superior Court.5 The statute on the whole affords tenants of mobile home parks more protection than tenants enjoy in other residential housing. For example, pursuant to § 31-44-3.1, a tenants’ association has a right of first refusal to purchase before a park may be sold or leased for any purpose that would result in a discontinuance of its use as a mobile home park. As noted previously, in case of a discontinuance due to sale or leasing of a park, tenants are entitled to relocation benefits pursuant to § 31-44-3.2. Six years after the enactment of the mobile homes act, the Legislature added chapter 44.1 to title 31 of the Rhode Island General Laws, titled “Mobile and Manufactured Home Lot Rental Increases,” that included the following declaration of policy: *856“The general assembly finds and declares that the provision of affordable housing is of vital concern to the citizens of the state, that mobile and manufactured homes are an important source for affordable housing, that lot rent increases for these homes are a continuing concern for low and moderate income citizens and the elderly, and that some form of limited regulation relative to lot rental increases for mobile and manufactured homes is in the public interest.” Section 31-44.1-1. The chapter then sets forth notice requirements for rent increases and outlines the procedure for arbitration between a park owner and mobile home owners “[i]f a majority of the mobile home owners of the park believe that the rent increase is clearly excessive.” Section 31-44.1-2. Although we do not address the constitutionality of the mobile home act in this appeal because it is not before us, in light of the Legislature’s expressed intent to provide special regulations for mobile home park residents, we interpret the act to afford more protection to residents of mobile home parks than is provided to tenants under G.L.1956 chapter 18 of title 34, the Residential Landlord and Tenant Act (landlord-tenant act). Eviction under the Act At the time of the Superior Court proceedings, § 31 — 44—2(a), titled “Evictions— Termination of tenancy,” read as follows: “After July 1, 1985, a tenancy may be terminated by a park owner or operator pursuant to chapter 18 of title 34, provided, however, that jurisdiction as it relates to this chapter shall be in the district court but subject to one or more of the following reasons and limitations which shall take precedence over any conflicting state statute or local ordinance.” 6 The statute sets forth six specific grounds on which a tenancy may be terminated: (1) nonpayment of rent or charges; (2) the tenant’s failure to comply with laws or regulations, subject to notice and opportunity to comply; (3) damage by the tenant to the property; (4) repeated conduct of the tenant which disturbs the peace and quiet of other tenants; (5) the tenant’s failure to comply with rules of the park, provided the tenant is afforded an opportunity to comply; and (6) condemnation or change of use of the mobile home park. Although § 31-44-2(a) refers to the landlord-tenant act, the statute clearly and unambiguously states that eviction of a tenant can only be effectuated if one of the six enumerated conditions applies, conditions that “take[ ] precedence over any conflicting state statute or local ordinance.” (Emphasis added.) In addition, § 31-44-2(b) specifies that a tenancy may be terminated on thirty days’ notice for nonpayment of rent. Termination on one or more of the other grounds requires sixty days’ notice. The circumstances in the instant case exemplify the difficulties encountered by a *857mobile home park tenant when faced with eviction. Krzak testified that the eviction of Strashnick would necessitate removing the mobile home skirting required by the park, detaching his porch, garden shed, and carport, removing his mobile home from the park, and returning the lot to the condition it was before any home had been placed on it. In our opinion, limiting eviction to the circumstances enumerated in § 31-44-2(a) is consistent with the legislative intent of affording special protection to residents of mobile home parks, who often are low and moderate income citizens and the elderly. The statutory reference to the landlord-tenant act is made to specify the procedures to be followed in the District Court, not to bestow on the owner of a mobile home park the ability to evict a tenant for no reason, as a landlord can with a typical residential tenant-at-will. In our opinion, the Legislature did not intend to incorporate into the mobile home act the landlord-tenant act’s easier termination of tenancy provisions. We have consistently held that “[i]n carrying out our duty as the final arbiter on questions of statutory construction, Tilt is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.’ ” State v. Flores, 714 A.2d 581, 583 (R.I.1998) (per curiam) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996)). Moreover, “[i]t is our task ‘in interpreting a legislative enactment to determine and effectuate the Legislature’s intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes.’ ” Dias v. Cinquegrana, 727 A.2d 198, 199-200 (R.I.1999) (per curiam) (quoting Brennan v. Kirby, 529 A.2d 633, 637 (R.I.1987)). Our review of the record of the trial proceedings revealed that Krzak complied with the sixty-days’ notice for termination of tenancy specified in § 31-44-2(b) but, as the Superior Court justice noted, in all other respects treated Strashnick “like a month-to-month tenant of any other type of dwelling.” Krzak in fact conceded that none of the grounds enumerated in § 31-44-2(a) was at issue in the litigation before us. Instead, she relied “on the basic common law doctrine of holdover tenancy, which basically, allows an owner of real estate to evict an individual after their term is up and upon proper notice.” The Superior Court justice rejected this approach, and we agree with her assessment that “[t]here is no question that the plaintiff attempted to evict the defendant in violation of the clear and unambiguous provisions of the statute.” Once Krzak had admitted that the conditions of the eviction statute had not been fulfilled, she could not make a claim based on common law that clearly was superseded by the statute enacted in 1985, eight years before Strashnick became a resident at the park. Krzak’s reliance on the landlord-tenant act is equally unavailing, and we concur with the Superior Court justice’s finding that the mobile home tenancy dispute in this case fell exclusively within the purview of the mobile home act, without reference to the landlord-tenant act. The Superior Court justice addressed this distinction: “This statute was enacted in 1985 for the purpose of protecting residents of Mobile Home Parks by treating them differently than other residential tenants for purposes of eviction proceedings. “It reflected a recognition of the difficulties and expenses involved in relocating a structure such as the defendant’s mobile home, from leased land. It re-*858fleeted a recognition of the need for affordable housing in this State and the particular burdens imposed upon an owner of a mobile home if he or she was required to relocate it.” Krzak argued on appeal, as she did in her original complaint, that “§ 32-44-2(a) should not bar evictions for holding over if a tenant does not sign a lease and does not demand one.” Although Krzak maintained throughout her appeal that “nothing in the record suggests that tenant ever asked for [a lease],” the evidence clearly contradicted this statement. On cross-examination, Krzak admitted that she offered Strash-nick an initial limited lease for a period of four months, in accordance with her convention of having all leases run from January to December 31. Asked whether “at that time, Mr. Strashnick requested that [she] give him a lease of at least one year,” Krzak responded: “He can’t have it. * * * He wanted to, but he cannot have it.” Clearly Krzak violated the statute and deprived Strashnick of the opportunity to obtain the one-year lease to which he was entitled. Krzak’s counsel suggested for the first time at oral argument that one-year leases were held available at the mobile home park’s office each January. Our thorough review of the transcript revealed that no evidence of this purported fact was submitted to the Superior Court justice, and therefore the issue of whether this would have been sufficient in light of the mandate of § 31-44-7(1)(xiv) that a landlord “[p]rovide a written lease of not less than one year” was not presented to the trial justice. In sum, we hold that unless one or more of the six conditions set forth in § 32-44-2(a) applied, Krzak could not evict Strashnick from the mobile home park without violating the terms of the mobile home act. Counterclaims Krzak’s remaining issues in this appeal centered on Strashnick’s counterclaims for malicious prosecution and reprisal. Krzak contended that “the former claim lacks merit as a matter of law because Krzak had a good-faith belief that she could evict him as a holdover tenant.” She further maintained that Strashnick could “not invoke the statutory rebuttable presumption of reprisal because he never demanded a written lease” and that the trial justice “failed * * * to state any facts underlying her conclusion” on reprisal. This Court has previously defined malicious prosecution as “a suit for damages resulting from a prior criminal or civil legal proceeding that was instituted maliciously and without probable cause, and that terminated unsuccessfully for the plaintiff therein.” Clyne v. Doyle, 740 A.2d 781, 782 (R.I.1999) (per curiam) (quoting Hillside Associates v. Stravato, 642 A.2d 664, 667 (R.I.1994)). To establish malice, it must be shown that “ ‘the person initiating the original action was primarily motivated by ill will or hostility or [regardless of such motivation] did not believe that he or she would succeed in that action,’ ” id. at 783, and that “the prior suit resulted in a special injury to the defendant therein.” Nagy v. McBurney, 120 R.I. 925, 929 n. 1, 392 A.2d 365, 367 n. 1 (1978). It is well settled that the findings by a trial justice sitting without a jury in a civil case are accorded great weight and will not be disturbed on review “unless such findings are clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties.” Harris v. Town of Lincoln, 668 A.2d 321, 326 (R.I.1995). Here, the Superior Court justice’s findings included her assessment that “the instant action was commenced by [Krzak] *859without probable cause and that it terminated unsuccessfully, * * * that the conduct of [Krzak] was malicious[,] [and that her] hostile motive was inferred by the lack of probable cause and also from the evidence.” The justice further stated that she had “observed the testimony of [Krzak], the demeanor of [Krzak] when she testified, particularly when cross-examined by [Strashnick’s] attorney,” and she concluded that “this action was commenced because [Krzak] had great feelings of hostility toward [Strashnick] * * * [a]nd great feelings of frustration at failing to succeed when she attempted to evict him in the past.” The trial justice found that Krzak was “primarily motivated by ill will or hostility and did not actually believe that she would succeed with the action * * * and [that] she was seeking possession by harassing [Strash-nick] into submission.” Notwithstanding these findings by the trial justice, Strashnick failed to present any evidence that as a result of Krzak’s litigation, he had suffered special injury, a requisite element in a claim of malicious prosecution. Salvadore v. Major Electric & Supply, Inc., 469 A.2d 353, 357 (R.I.1983); Ring v. Ring, 102 R.I. 112, 114-15, 228 A.2d 582, 584 (1967). Because Strashnick did not claim any special injury “beyond the trouble, cost, and other consequences normally associated with defending oneself against an unfounded legal charge,” Jacques v. McLaughlin, 121 R.I. 525, 525, 401 A.2d 430, 431 (1979), the award of $920 for attorney’s fees as costs resulting from the malicious prosecution was error. Consequently, we sustain Krzak’s appeal on this issue and vacate that part of the trial justice’s award. With respect to punitive damages, this Court has stated that “the question of whether punitive damages are appropriate in a given case is a question of law to be decided by the court, * * * [and] once a court determines that such damages may appropriately be awarded, ‘such an award is discretionary with the finder of fact.’ ” Callaghan v. Rhode Island Occupational Information Coordinating Committee/Industry Educational Council of Labor, 704 A.2d 740, 745 (R.I.1997) (quoting Morin v. Aetna Casualty and Surety Co., 478 A.2d 964, 967 (R.I.1984)). Punitive damages are awarded when there is “ ‘evidence of such willfulness, recklessness or wickedness, on the part of the party at fault, as amount[s] to criminality, that * * * ought to be punished.’ ” Allen v. Simmons, 533 A.2d 541, 543 (R.I.1987) (quoting Morin, 478 A.2d at 967). Although the Superior Court justice’s finding stated that Krzak’s conduct in this case rose to the level that warranted punitive damages, her award of $2000 for punitive damages was predicated on Strashnick’s claim of malicious prosecution. Because we hold that the claim of malicious prosecution failed in the absence of a special injury to Strashnick, we vacate the punitive damage award as well. Finally, we address the issue of reprisal, defined in § 31-44-1(14) as “any act taken against a resident which is intended as a penalty for any protected lawful action taken by a resident.” Such behavior is prohibited under § 31-44-5(a), which states that “[n]o licensee shall take reprisal(s) against a resident, prospective resident, or association formed pursuant to § 31-44-3.1.” Under § 31-44-5(b), if a licensed mobile home park operator takes certain steps against a resident within six months after the resident has taken a protected lawful action, a rebuttable presumption of reprisal arises. Section 31—44-5(c) provides that a resident who has been the subject of a reprisal is entitled to the remedies for retaliatory actions provided in § 34-18-46 of the landlord-tenant act, *860including “three (3) months periodic rent or threefold the actual damages sustained by him or her, whichever is greater, and reasonable attorney’s fees.” Section 34-18-34. The Superior Court justice found that “the term ‘protected lawful action’ [was] sufficiently broad as to include [Strashnick’s] action in his defending the previous eviction action and in filing the previous, albeit unsuccessful, counterclaim,” and she rejected Krzak’s narrow definition that attempted to limit “a protected lawful action” to such events as the reporting of a violation of a building or health code. Section 31-44-1(13) defines “protected lawful action” as “any report of a violation of this chapter, or of any applicable building or health code, or any other justified complaint to governmental authority, or any other justified lawful act by a resident or prospective resident.” (Emphasis added.) Given the extensive protection of tenants’ rights in the act and the broadly stated language of the definition, we conclude that a defense of an eviction action or any counterclaim resulting therefrom are clearly among those lawful actions contemplated by the Legislature. See Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 681 (R.I.1999) (holding that statutory provisions are examined in their entirety and in contemplation of the Legislature’s intent). In her decision, the Superior Court justice found that within six months of proceedings in District Court — in which Strashnick successfully fought an eviction and was permitted to cure park rule violations — Krzak attempted to evict Strashnick yet again. Without making a finding on whether Strashnick had the benefit of the presumption under the act, the Superi- or Court justice found that “the facts and reasonable inference from those facts are so clear, that [Strashnick] has sustained * * * his burden of proof on the question of reprisal.” Krzak contended on appeal that the Superior Court justice failed to state any facts underlying her conclusion that Krzak intended to evict Strashnick as a penalty for his defense of a prior eviction action. As we have explained, a trial justice’s findings on mixed questions of law and fact are generally entitled to the same deference as the justice’s findings of fact. Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I.1998). In her decision, the Superior Court justice concluded that Krzak “commenced an action for possession, and it is clear that possession is exactly what she wanted to accomplish.” Moreover, the justice commented in detail on Krzak’s attempts to “evict [Strashnick] for a lengthy period of time” and noted that Strashnick “has apparently been a thorn in the side of [Krzak] for several years.” In light of the Superior Court justice’s finding that Krzak’s objective in this litigation was to rid herself of Strashnick, and absent any finding that the eviction proceedings initiated by Krzak were primarily “intended as a penalty,” the judgment for Strash-nick on the claim of reprisal was error. Consequently, we vacate the award of $780. Conclusion For the foregoing reasons, the appeal is denied in part and sustained in part. We affirm the Superior Court judgment denying Strashnick’s eviction, reverse the judgment on the counterclaims, and vacate the compensatory and punitive damages awards for malicious prosecution and reprisal. The case is remanded to the Superior Court with our direction to enter judgment consistent with this opinion. . Pursuant to G.L.1956 § 31-44—4(g)(2), "[i]f the park owner or management collects a fee or charge from a prospective purchaser of a mobile and manufactured home in order to obtain a financial report or credit rating, the full amount of the fee or charge shall be credited toward payment of the first month's rent for that purchaser.” . Krzak testified at trial that she still maintained a provision in her rules and regulations incorporated in the lease which required the $140 application fee. Pursuant to § 31-44-7(6)(iv), a mobile home park lease may not contain such a provision. . Krzak testified that after Strashnick had moved into the park, she retroactively approved of already-built garden sheds that were not in compliance with the prescribed dimensions and approved the building of a gazebo that was noncompliant with the regulations. . Before a September 5, 1995 amendment to Rule 24 of the Superior Court Rules of Civil Procedure, the Attorney General had to be notified “within such time to afford the attorney general an opportunity to intervene,” indicating that the Attorney General was an indispensable party. See, e.g., Griffin v. Ben-dick, 463 A.2d 1340, 1344 (R.I.1983). Notwithstanding cases establishing that intervention is left to the discretion of the Attorney General, notice is still mandatory. Snicker’s, Inc. v. Young, 574 A.2d 1246, 1247 (R.I.1990) (per curiam). . It appears that neither party has filed a complaint with the director. . This part of the section was subsequently amended to read: "A tenancy may be terminated by a park owner or operator pursuant to chapter 18 of title 34. Jurisdiction in matters relating to this chapter shall be in the district court, but subject to any of the following limitations which takes precedence over any conflicting state statute or local ordinance.” Section 31-44-2(a), as amended by P.L.2000, ch.109, § 45, enacted July 7, 2000. The compiler’s omission of the word "reasons” in the 2000 Reenactment of the General Laws was not and, of course, could not represent a substantive change in the Legislature’s intent without its consent. In our opinion, no such change in intent is evident. The compiler wisely realized that redundancy is to be avoided. Moreover, any substantive change could be applied only prospectively.

2023-08-22 21:22:14.589051+00

Flanders

FLANDERS, Justice, dissenting and concurring. I respectfully disagree with that portion of the majority’s opinion that construes *861legislation regulating mobile and manufactured home parks, G.L.1956 chapter 44 of title 31 (the act), as preventing the owners of such parks from terminating a periodic tenancy therein, and from commencing an eviction action to regain possession of the premises, unless the owner demonstrates that its reasons for doing so fall within one of the enumerated “limitations” in § 31-44-2(a). The majority’s interpretation of § 31-44-2(a) precludes mobile-home park owners from terminating tenants for non-renewal of their leases or for any other lawful reasons unless the reasons fall within one of the statute’s six “limitations.” But one searches in vain for any language in that statute to support such a construction. Contrary to the majority, I can discern no clear or unambiguous language in the statute indicating that the Legislature ever intended such a result. I also respectfully disagree with the majority’s decision to enforce the earlier-enacted Public Laws version of § 31-44-2(a) (P.L.2000, ch. 109, § 45 enacted July 7, 2000) over the version contained in the 2000 Reenactment of the General Laws (effective per G.L.1956 § 43-4-18(d) “on and after December 31 of the calendar year of their reenactment”). The current version of § 31-44-2(a) includes “the changes made by the 2000 Reenactment of this title which were not included in the 2000 amendment.” See § 31-44-2 compiler’s note. These changes to the earlier version of § 31-44-2(a) were not included in the 2000 amendment to that statute as set forth in P.L.2000, ch. 109, § 45. Note that one of the changes in wording to the statute is that the 2000 Reenactment dropped the statute’s reference to “reasons,” leaving only the word “limitations” to describe the six enumerated sub-paragraphs in the statute. The compiler (“office of law revision”) is specifically authorized by G.L.1956 § 43-4-18(a) “to reenact annually specific titles of the general laws which shall be amendatory to the general laws of Rhode Island, 1956, as amended, for the purposes specified in § 22-11-3.4. Substantive changes contained in the reenactment of these titles shall be brought to the attention of the general assembly annually in a ‘Statutes and Statutory Construction’ bill, prepared by the law revision office, for general assembly approval or disapproval.” In addition to authorizing such changes, G.L.1956 § 22-11-3.4 requires that the compiler “shall rearrange, rephrase, and consolidate the public laws and acts and resolves of the general assembly so that redundancies may be avoided, obsolete enactments eliminated, contradictions reconciled, omissions supplied, and imperfections cured. The law revision director has no authority either to change the law or to alter the substance of the statutes but shall alert the general assembly annually to specific changes which may be required.” The changes in the present version of § 31-44-2(a) were part of the 2000 Reenactment, but they were not included in any “ ‘Statutes and Statutory Construction’ bill.” Apparently, they were not considered substantive in nature because they merely “rearrange[d], rephrase[d], and consolidate^]” the language to clarify the original intent of the General Assembly. Therefore, because these changes in the 2000 Reenactment of § 31-44-2(a) do not conflict with any version of the act passed by the General Assembly, see § 43-4-18(c) (stating that acts passed by the General Assembly control over conflicting amendments that are part of reenactments), I believe that this version of the statute should be enforced as the law in effect at the time we decide this case. See Solas v. *862Emergency Hiring Council of the State of Rhode Island, 774 A.2d 820, 826 (R.I.2001) (“[T]his Court has traditionally applied the law in effect at the time we consider an appeal.”)- Moreover, we have held that, in cases like this one, if a statutory change is non-substantive, remedial, or procedural, then we apply the law in effect at the time of the appeal rather than at the time the cause of action arose. See, e.g., Dunbar v. Tammelleo, 673 A.2d 1063, 1067 (R.I.1996). Although § 31-44-2(a) enumerates six “limitations” with reference to the termination of a mobile-home tenancy, any one of which “takes precedence over any conflicting state statute or local ordinance” (emphasis added), there is no indication in § 31-44-2 or elsewhere that the Legislature intended that the enumerated limitations in § 31-44-2(a) would constitute the exclusive and only grounds for a mobile-home-park owner or operator to terminate a tenancy. In any event, it certainly failed to use any language that clearly and unambiguously so provides. I reach this conclusion for several reasons. First, none of the enumerated “limitations” in § 31-44-2(a) conflict with the express provisions of G.L.1956 § 34-18-37 (allowing termination of periodic tenancies), provisions that are expressly incorporated by reference into § 31-44-2(a). These provisions allow an owner or landlord to terminate a periodic residential tenancy by providing the tenant with the requisite advance written notice of such termination. Thus, § 31-44-2(a) expressly provides, in its first sentence, that “[a] tenancy may be terminated by a park owner or operator pursuant to chapter 18 of title 34 [the Residential Landlord and Tenant Act].” Section 34-18-37(b) of that act expressly allows landlords to terminate periodic tenancies like this one upon providing the tenant with proper advance notice. Hence, the specific legislation dealing with the termination of tenancies in mobile and manufactured home parks expressly incorporates by reference the provisions of the Residential Landlord and Tenant Act. These landlord-tenant-act provisions allow for nonrenewals, for terminations of periodic tenancies, and for evictions of tenants who unlawfully hold over after the lawful termination or expiration of their tenancy. Second, the enumerated limitations in § 31-44-2(a) take precedence only over any conflicting state statute or local ordinance. But allowing nonrenewals, terminations of periodic tenancies, and evictions for unlawfully holding over after terminations occur in no way conflicts with any of the enumerated other “limitations” in § 31-44-2 for terminating mobile-home-park tenancies. Third, conspicuously absent from § 31-44-2(a) is any language or other indication that the enumerated “limitations” set forth therein were intended to constitute the exclusive or only bases for terminating a mobile-home-park tenancy. Compare, e.g., Fla.Stat .Ann. § 723.061(1) (West 2001) (“A mobile home park owner may evict a mobile home owner or a mobile home only on one or more of the grounds provided in this section.”). It is one thing for the General Assembly to specify that such provisions take precedence over any conflicting state statute or local ordinance, but it is quite another for the Legislature to require that the “limitations” constitute the exclusive grounds for terminating a mobile-home-park tenancy. Here, the General Assembly provided for the former but not for the latter. Because the General Assembly has included no language in the statute evincing an intention to change or to override the otherwise applicable common and statutory law of this state allowing termination of residential tenan*863cies on other lawful grounds, I do not believe we should construe § 31-44-2(a) to do so. Indeed, the statute in question (§ 31-44-2(a)) fails to include any language from which one could even infer an exclusivity provision, much less does it clearly and unambiguously so provide by its express terms. Fourth, under conventional rules of statutory interpretation, “when apparently inconsistent statutory provisions are questioned, every attempt should be made to construe and apply them so as to avoid the inconsistency * * Brennan v. Kirby, 529 A.2d 633, 637 (R.I.1987). Thus, “[wjherever a general provision shall be in conflict with a special provision relating to the same or to a similar subject, the two (2) provisions shall be construed, if possible, so that effect may be given to both * * G.L.1956 § 43-3-26. Accordingly, I would hold that only when a provision of the Residential Landlord and Tenant Act expressly conflicts with a provision of the more specific legislation addressing mobile and manufactured home parks would the latter take precedence, but only if effect cannot be given to both provisions. But nowhere in the latter act is there any conflict with those sections of the Residential Landlord and Tenant Act that allow for termination of periodic tenancies and for evictions of tenants who unlawfully hold over after such terminations. Indeed, § 31-44-2(b) seems to expressly contemplate such terminations when it provides for a minimum period of “not less than sixty (60) days” for a tenant to be notified “to remove from the premises.” This specific provision would take precedence over the conflicting portion of § 34 — IS—37(b), which allows a landlord to “terminate a month-to-month tenancy or any periodic tenancy for more than a month or less than a year by a written notice” that is delivered to the tenant “at least thirty (30) days before the date specified in the notice.” But it would not prohibit a mobile-home-park owner from terminating a periodic tenancy for a reason other than one enumerated in § 31-44-2(a). Thus, while the Act provides mobile-home tenants with greater protection from nonrenewals and terminations of periodic tenancies than other tenants enjoy, it does not go so far as to preclude such terminations except for one of the six “limitations” listed in § 31-44-2(a). This reading construes the two provisions “so that effect may be given to both.” Section 43-3-26. Fifth, if periodic tenancies could not be terminated at the conclusion of the term except upon one of the “limitations” stated in § 31-44-2(a), then the Legislature’s provision for a mandatory “written lease of not less than one year unless the resident requests in writing a shorter term, or unless a resident in writing states that he or she does not desire a written lease,” § 31-44-7(1)(xiv), becomes virtually meaningless. See Brennan, 529 A.2d at 637 (holding that “[a] statute or enactment may not be construed in a way * * * if at all possible, to render sentences, clauses, or words surplusage”). After all, if a tenant cannot be terminated by the mobile-home-park owner at the conclusion of the lease term unless the termination complies with one of the six enumerated “limitations” specified in § 31-44-2(a), then the required minimum one-year-lease term becomes largely superfluous because the tenant cannot be terminated in any event unless the owner complies with one of the six reasons listed in the statute. Given the mandatory notice provisions for raising the tenant’s rent and for terminating any tenancy, what would be the legislative purpose for mandating term leases of one year or longer if the owner could not terminate the lease in any event during or at the expiration thereof absent compliance *864with one of the enumerated “limitations” set forth in § 31-44-2(a)? I note also that, pursuant to § 31-44-5(b), park owners and operators are forbidden from taking reprisals against their resident tenants for having engaged in “any protected lawful action.” Moreover, “[a]n increase in rent, nonrenewal of lease, refusal to offer a lease, or termination of tenancy, taken by a [landlord] against a resident * * * within six (6) months after the resident * * * has taken any protected lawful action, creates a rebuttable presumption that the act by the [landlord] is a reprisal.” Id. (Emphasis added.) And a “[reprisal may be pleaded as a defense in any court proceeding brought against a resident or prospective resident after he or she has taken any protected lawful action.” Id. But if an owner of a mobile-home park could not terminate a periodic tenancy or refuse to renew a lease except for one of the six “limitations” set forth in § 31-44-2(a), then the above-referenced provisions in § 31-44-5(b) prohibiting “nonrenewal of lease” and “termination of tenancy” as a reprisal for a tenant taking any protected lawful action would appear to be unnecessary. If the majority’s interpretation wére correct, then the owner could not terminate or fail to renew such an expired or holdover tenancy in any event — irrespective of whether the termination constituted a reprisal — unless the grounds for doing so fell within one of the “limitations” set forth in § 31-44-2(a). Thus, it seems to me that the more coherent interpretation of all language in this act — and the General Assembly’s presumed but unexpressed intent — is that a mobile-home-park owner may refuse to renew a lease or terminate a periodic tenancy for any lawful reason, as long as, in doing so, the tenant receives the requisite advance written notice as provided for in § 31-44-2(b) (sixty days) and as long as such action does not amount to a reprisal against a tenant for having taken a protected lawful action. But if the reason for the termination implicates any one of the “limitations” set forth in § 31-44-2(a), then those “limitations” take precedence over any conflicting provisions of any other law or contractual provision, and the owner must comply with their terms if the termination is for one of those six enumerated reasons. Such an interpretation gives effect to all provisions of the act, and gives precedence to any provisions in the act that conflict with the provisions of the Residential Landlord and Tenant Act. Yet, at the same time, it respects the Legislature’s apparent decision to allow owners to terminate periodic mobile-home-park tenancies and not to renew leases at their expiration as provided for in that latter act, as long as such conduct does not constitute a reprisal for the tenant’s taking a protected action. This interpretation also avoids converting mobile-home-park residents into de facto permanent tenants. For that is the practical effect of limiting a park owner’s reasons for termination to those enumerated in § 31-44-2(a). Under the majority’s interpretation, unless a tenant fails to pay rent, fails to comply with applicable law, fails to adhere to rules and regulations relating to mobile and manufactured home parks, or unless the tenant fails to comply with one of the other “limitations” in § 31-44-2(a), the tenant has a right to remain in the park as a tenant for the indefinite future and cannot be terminated for any other reason. Although, as the majority suggests, such an incursion into an owner’s property rights may well survive federal constitutional scrutiny in a case that properly raises such a challenge, our state constitution could be construed to raise a higher bar than its federal counterpart to uncompensated takings of private property. In any event, because of the radical *865nature of creating such quasi-permanent tenancies against the will of park owners, I would require a much clearer statement from the Legislature before I would ascribe such a potentially confiscatory purpose to the framers of this legislation— especially when the act as drafted is already chock full of anti-reprisal measures and other extraordinary protections for mobile-home tenants against arbitrary terminations — without taking the unwarranted step of judicially grafting onto it an exclusivity provision that the text of the statute simply cannot support. See Brennan, 529 A.2d at 637 (holding that “in interpreting a legislative enactment * * * the court must attempt to ascertain the [legislative] intent by considering the enactment in its entirety and by viewing it in light of circumstances and purposes that motivated its passage. * * * A statute or enactment may not be construed in a way that would attribute to the Legislature an intent that would result in absurdities or would defeat the underlying purpose of the enactment. * * * Moreover, we have indicated that when apparently inconsistent statutory provisions are questioned, every attempt should be made to construe and apply them so as to avoid the inconsistency and should not be applied literally if to do so would produce patently absurd or unreasonable results.”). Although the act contains no statement or other indication that the “limitations” enumerated in § 31-44-2(a) were intended to constitute the exclusive or only grounds for terminating a mobile-home-park tenancy, the majority, nevertheless, decrees this to be so, apparently believing that mobile-home-park tenants deserve even greater protections beyond those express additional safeguards that the General Assembly has afforded to mobile home tenants in the act. But even if I were to concede, ar-guendo, that as a policy matter, mobile-home-park tenants deserve even greater protections from terminations and evictions than the act currently provides — and the act certainly gives them much greater protections than other residential tenants presently enjoy — I do not believe that a mere judicial belief in the righteousness of this policy is enough of a warrant for this Court to legislate the extent and degree of what those heightened protections should be. I believe the General Assembly has specified the additional protections that it desired to extend to such tenants in enacting chapter 44 of title 31. Although clearly providing mobile-home-park tenants with greater protections than conventional residential tenants, the General Assembly neglected to go so far as to prevent them from suffering a termination at the end of a periodic tenancy — as long as that termination does not constitute a reprisal for the tenant’s taking a protected action, as long as the owner complies with the “limitations” of § 31-44-2(a) (if the termination implicates any of the six “limitations” fist-ed therein), and as long as the tenant receives the requisite sixty-days-advance-written notice. Thus, I would not construe § 31-44-2(a) as providing that mobile-home-park tenants can be terminated only for one of the six enumerated “limitations” set forth in that statute — at least when the Legislature, in its wisdom, declined to go this far in its framing of that law. In other respects, I concur in the results of the Court’s opinion. Thus, I would reverse the Superior Court and vacate the judgment in its entirety.

2013-10-30 06:32:43.580527+00

Robinson

535 S.W.2d 737 (1976) J. P. MINTER, Appellant, v. Merle C. JOPLIN and Joe Joplin, Appellees. No. 8653. Court of Civil Appeals of Texas, Amarillo. March 22, 1976. *738 Warren Burnett Associated, Richard J. Clarkson, Odessa, for appellant. Crenshaw, Dupree & Milam, Cecil Kuhne and J. Orville Smith, Lubbock, Ray D. Anderson, Brownfield, for appellees. ROBINSON, Justice. Plaintiff, J. P. Minter, sued defendants, Joe Joplin and his son, Merle Craig Joplin, to recover damages for injuries sustained by plaintiff in a collision between plaintiff's automobile and an automobile driven by the son. The son's negligence and liability and the absence of contributory negligence of the plaintiff were stipulated. The question of the father's liability for negligent entrustment of the automobile to his son was tried to a jury. The trial court rendered judgment on the verdict that plaintiff take nothing as to the defendant father. Plaintiff appeals. Affirmed. The plaintiff asserts that jury findings that the son was not driving the automobile with the permission of the father, and that the father was not the owner of the automobile at the time of the collision were against the overwhelming weight and preponderance of the evidence. The evidence shows that at the time of the accident the son was 19 years old and an adult. The certificate of title to the car he was driving was in his father's name, but both father and son testified that the car belonged to the son. The son, Craig Joplin, bought the car when he was 16 years old. The evidence shows that the full purchase price of the car, $3,600, was paid by Craig Joplin. In order to pay for the car, Craig borrowed $1,600 from Lahey Gin, and the balance of $2,000 was paid out of his personal savings account. In this connection, defendant offered into evidence the check for $1,600 from Lahey Gin to Craig Joplin showing the endorsement by McAdoo Chevrolet, and a copy of the ledger sheet showing deposits and withdrawals from Craig's savings account. The money in Craig's savings account and that used to repay the loan was money paid to him by his father for work in helping to harvest the father's cotton crops over a period of several years. The father testified that he carried the car on his fleet insurance, but that his agent knew the car was the son's. There is testimony that on the occasion of the accident, the father did not know the son was driving the car, but he felt that his son had a right to leave and take the car with him at any time he chose. The name on the certificate of title is not conclusive of ownership. Evidence of *739 the name in which an automobile is registered raises only "an administrative presumption" of ownership which is not evidence of ownership, and "which vanishes when positive evidence to the contrary is introduced." Pioneer Mutual Compensation Company v. Diaz, 142 Tex. 184, 177 S.W.2d 202, 204 (1944); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940). See also Strickland Transportation Co. v. Ingram, 403 S.W.2d 192, 194 (Tex.Civ. App.—Texarkana 1966, writ dism'd). After considering all of the evidence, we find that the jury answers refusing to find that the son was driving the car with permission of the father and refusing to find that the father was the owner of the car are not so against the great weight and preponderance of the evidence as to be manifestly unjust. Plaintiff asserts that the trial court erred reversibly in excluding evidence of the son's use of marijuana and in excluding evidence of a pipe, used to smoke marijuana, which was found in the car. There was no evidence that the son had been smoking marijuana on the occasion in question. Plaintiff contended at the trial and contends in his brief that the excluded testimony was relevant on the question of the father's negligence in any entrustment of the car to his son. Issues inquiring if the son was a reckless and incompetent driver and if, when the father permitted the son to drive, he knew or, by using ordinary care, would have known that the son was a reckless and incompetent driver were submitted to the jury. They were to be answered, however, only if the jury first found that the son was driving the car with the permission of the father. The jury did not so find. It was not required to answer and did not answer those issues. The evidence concerning marijuana was not relevant to the questions concerning whether the father owned the car or whether he gave the son permission to drive it. Those were the only questions, other than the damage issues, answered by the jury. Thus, the error in excluding such evidence, if there was error, could not have resulted in the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure. In a letter memorandum submitted after oral argument, plaintiff, for the first time contends that evidence of a pending criminal charge against Craig Joplin for possession of narcotic paraphernalia should have been admitted on the question of Craig's credibility as a witness. In Compton v. Jay, 389 S.W.2d 639 (Tex. 1965), the Supreme Court approved a rule limiting admissibility in civil cases of evidence of both misdemeanor and felony offenses as follows: The rule is that where the witness has been legally charged by indictment, complaint, or information and complaint, with an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, or where the witness has been so legally charged with such offense, and presently admits his guilt, then such matters are admissible in evidence touching his credibility as a witness. (Emphasis by the Supreme Court.) The Court stated that it was not disposed to relax the accepted rule so as to admit evidence which might have a highly prejudicial effect, although it would have little or no logical bearing on the issue of credibility. Since possession of narcotic paraphernalia is not an offense involving moral turpitude, evidence of such a charge is not admissible under the Compton v. Jay standard. We would overrule plaintiff's contention that it should have been admitted except that we find no assignment in plaintiff's amended motion for new trial complaining of the exclusion by the trial court of evidence of a criminal charge. The question, thus, is not before us on appeal. Rule 324, T.R.C.P. The judgment of the trial court is affirmed.

2013-10-30 06:32:43.599181+00

Sonner

774 A.2d 1183 (2001) 139 Md. App. 79 Kai Ruchell LEE, v. STATE of Maryland. No. 914, Sept. Term, 2000. Court of Special Appeals of Maryland. June 27, 2001. *1184 Geraldine K. Sweeney, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant. Rachel Marblestone Kamins, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Joseph *1185 I. Cassily, State's Attorney for Harford County, Bel Air, on the brief), for appellee. Argued before SALMON, SONNER and JOHN F. McAULIFFE (retired, specially assigned) JJ. ON MOTION FOR RECONSIDERATION SONNER, Judge. Kai Ruchell Lee appeals his conviction for possession with the intent to distribute a controlled dangerous substance, and alleges, as a basis for reversal, that the warranted search of his home by police without knocking and announcing violated his constitutional guarantee to be free from unreasonable searches and seizures. Lee principally relies upon Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), the case in which the United States Supreme Court held that the "knock and announce" provision of the common law is a part of the Fourth Amendment's reasonableness requirement. The Supreme Court there ruled that the failure to knock and announce, without justification, before entering with a valid warrant, is unreasonable and requires the application of the exclusionary rule to the evidence seized. We agree Richards is applicable here, and reverse the Circuit Court for Harford County and rule that the court should have suppressed the evidence seized from Lee's home. Background Early on a weekday morning late in September 1998, a large combined task force of law enforcement officers from the Baltimore County Police Department, the Harford County Sheriff's Office, the Harford County Police Department, and the Maryland State Police, assembled in front of a single-family, colonial-style home in a residential area of Harford County. The task force, which arrived in several cars and trucks, surrounded the home, while eight Harford County deputy sheriffs, wearing black hoods and fatigue-style uniforms, battered down the door of Lee's home with a two-handled "ram," which is essentially a pipe filled with concrete. Once inside, the task force "secured the premises" by dispersing throughout the house. Task force officers handcuffed two adults found upstairs in the master bedroom, gathered three small children from other bedrooms, and then herded all five members of the household together in the downstairs family room. The task force leader, a Maryland State Police trooper, and the Harford County deputy sheriffs then summonsed the remaining task force officers to enter and search the entire house. One of the task force officers discovered in the top drawer of an upstairs bedroom chest twenty-six grams, less than an ounce, of what later proved to be cocaine. When questioned by one of the officers, Lee admitted that the cocaine was his. The officers arrested and charged Lee with possession with the intent to distribute a controlled dangerous substance. The task force assembled that September morning resulted from narcotics officers of the Baltimore County Police Department obtaining a search warrant from a judge of the District Court of Maryland in Baltimore County to search a home in neighboring Harford County, after an informant engaged in two controlled purchases of cocaine from Lee. Armed with the search warrant, the Baltimore County Police sought assistance from the Harford County Police, requesting the organization of the multi-unit task force to carry out the early morning raid on Lee's home. Other than the Baltimore County officers, no member of the task force previously participated in the investigation of *1186 Lee. The task force leader learned from the Baltimore County officers only that they had a warrant from a District Court judge in Baltimore County, that they had observed Lee at the address, and that the Baltimore County officers believed Lee kept narcotics in his home. The task force leader testified that his decision on the manner of entry, that is, using a battering ram without warning, was influenced by the advice of an assistant state's attorney in Harford County. The assistant state's attorney told the task force leader that he need never knock and announce when he has a belief that doing so would lead to the destruction of narcotics. It is clear that at no time did the task force, even momentarily, consider knocking and announcing before battering down the door of Lee's home. Moreover, it does not appear that the Baltimore County officers ever considered requesting permission from the issuing District Court judge to enter without warning.[1] The only certain information known to the task force leader about the individual suspect and the specified premises was that Lee lived there and it was very likely he was home that morning because his car was parked in front of the residence. Prior to trial, Lee moved to suppress the fruits of the search by alleging that the failure of the police to knock and announce or, alternatively, to demonstrate that the police had a reasonable suspicion to believe exigent circumstances justified their failure to do so, rendered the search and seizure unconstitutional. Lee argued that the application of the exclusionary rule to direct physical evidence unreasonably seized required suppression. See Ott v. State, 325 Md. 206, 225, 600 A.2d 111 (1992). After admitting evidence and hearing argument, the circuit court ruled orally that the police bypassed knocking and announcing, not because they feared for their safety, but, instead, based upon the testimony of the experienced task force leader, because there was a possibility someone inside the home might destroy evidence in a case alleging possession of cocaine. The task force leader testified that the only conditions that would prompt him to knock and announce would be knowledge that nobody was home, or that the quantity of cocaine inside was so large as to make it impossible to destroy it quickly.[2] Discussion When we review a denial of a motion to suppress under Maryland Rule 4-252, we examine only the record of the suppression hearing and not that of the trial. Wynn v. State, 117 Md.App. 133, *1187 165, 699 A.2d 512 (1997), rev'd on other grounds, 351 Md. 307, 718 A.2d 588 (1998). This Court will accept the facts as determined by the hearing judge, unless those facts are clearly erroneous. Id. "But, as to the ultimate, conclusionary fact of whether a search was valid, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case." Id. We begin our analysis by reaffirming a fundamental principle of constitutional review that states: "The preservation of the rights guaranteed by the Constitution is of greater moment than the detection of any crime or the punishment of any single offender." Glodowski v. State, 196 Wis. 265, 220 N.W. 227, 229 (1928). The United States Supreme Court stated long ago, in Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958), the basis for the knock and announce requirement and held that the trial court should have suppressed the seized narcotics evidence. Writing for the majority, Justice Brennan explained: The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.... Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. Miller, 357 U.S. at 313, 78 S. Ct. 1190. Ten years later, in the case of Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968), the Supreme Court again overturned the conviction of a drug dealer after federal officers failed to knock and announce their presence before entering an unlocked apartment and seizing cocaine and drug packaging materials. In doing so, the Court did not clearly rely upon the United States Constitution, but, instead, applied 18 U.S.C. § 3109, the federal statute that mandated the common law knock and announce requirement. Finally, in 1995, the Supreme Court clarified the Fourth Amendment basis for the knock and announce requirement. In Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), a unanimous opinion authored by Justice Thomas, the Court vacated a state conviction because the police had failed to knock and announce before entering the defendant's home. The Arkansas Supreme Court had affirmed the conviction and framed the issue for the Supreme Court, by holding that the knock-and-announce principle was not constitutionally required. The United States Supreme Court disagreed and ruled unambiguously that knocking and announcing was indeed required because it was so deeply embedded in Anglo American law, and the original framers of the Fourth Amendment must have included the no-knock component. Wilson, 514 U.S. at 934, 115 S. Ct. 1914. The Supreme Court recounted the history of the rule, traced the origins of the requirement to at least Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B.1603), and concluded that the principle became part of the fabric of colonial law. Wilson, 514 U.S. at 931-933, 115 S. Ct. 1914. Because of the "longstanding common-law endorsement of the practice of announcement," the Court held that the method of entry into a dwelling was a factor in determining the reasonableness, and therefore the constitutionality, of searches and seizures.[3]Id. at 934, 115 S. Ct. 1914. The Wilson Court did not, however, go so far as to condemn all unannounced entries *1188 into a home as per se unreasonable. The Court said that "[t]he Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. at 934, 115 S. Ct. 1914. The Court declined to proclaim a "comprehensive catalog of the relevant countervailing factors," opting to allow the lower courts to define appropriately when not knocking and announcing would be reasonable. Id. at 936, 115 S. Ct. 1914. Then, instead of reversing the conviction outright, the Court remanded the case to the Arkansas Supreme Court and instructed it to determine whether the particular facts of the case, including the defendant's alleged threatening of a government informant with an automatic weapon, as well as a co-tenant's prior convictions for arson and firebombing, and the suggestion that the narcotics evidence could be easily destroyed, relieved the police from having to knock and announce. The question that remained after Wilson was whether a search for easily destroyed evidence, such as narcotics, was, without more, justification for a no-knock entry. The answer came two years later, in Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), when the Supreme Court, again in a unanimous decision, this time authored by Justice Stevens, applied the Fourth Amendment's reasonableness requirement to a no-knock search that resulted in the seizure of drugs. The Supreme Court reviewed a state judicial rule predating the decision in Wilson, which stated that police need never knock and announce their presence in executing a warrant in the course of a felony drug investigation. Richards, 520 U.S. at 389, 117 S. Ct. 1416. The Court noted that the Wisconsin Supreme Court assumed that "all felony drug crimes will involve `an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police.' " Id. at 390, 117 S. Ct. 1416. The Wisconsin rule had been that felony drug cases always present exigent circumstances that relieve the police from knocking and announcing, because of the "convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Id. at 392, 117 S. Ct. 1416. In other words, the Wisconsin Court had held that all felony drug searches conducted without knocking and announcing were per se reasonable. The Supreme Court, in rejecting that rationale, stated that the characterization was an over generalization that was too far removed from required judicial review, and, moreover, failed to strike a proper balance between individual privacy interests and the needs of law enforcement. Id. at 393, 117 S. Ct. 1416. The Court further pointed out that such a broad exception for drugs would, with little difficulty, extend to other categories of crimes and make the "knock-and-announce element of the Fourth Amendment's reasonableness requirement ... meaningless." Id. at 394, 117 S. Ct. 1416. The Court then held that each case must be subject to judicial review of the facts and circumstances that the police encounter in executing the search warrant. Id. The Supreme Court, nevertheless, affirmed the Supreme Court of Wisconsin, but, in doing so, specifically disapproved of the blanket exception in drug cases. The Court approved only the Wisconsin court's concurring opinion, which held that the no-knock entry in that case was supported by evidence of exigent circumstances. Id. at 395-396, 117 S. Ct. 1416. As a result of Wilson and Richards, judges and law enforcement officials have been given some guidance as to when a noknock entry may comply with the Fourth *1189 Amendment's reasonableness requirement. The Wilson Court declined to set out any specifics, but did state, by way of dicta, that entry without knocking and announcing was justified when it would be a "`senseless ceremony' ... in pursuit of a recently escaped arrestee," or in cases when the police "have reason to believe that evidence would likely be destroyed." Wilson, 514 U.S. at 936, 115 S. Ct. 1914. Richards then went further and approved of no-knock entries when lives are in danger or when an "effective investigation of the crime" would be thwarted through destruction of the evidence or escape of the suspects. Richards, 520 U.S. at 394, 117 S. Ct. 1416. Turning our attention to Maryland case law, we find that since Richards this Court has had only one occasion to review a noknock entry and seizure. In Wynn v. State, 117 Md.App. 133, 699 A.2d 512 (1997), rev'd on other grounds, 351 Md. 307, 718 A.2d 588 (1998), this Court reviewed the history of the no-knock requirement and its exceptions in Maryland. Judge Thieme, writing for the Court, noted that as early as 1964 the Court of Appeals had concluded a defendant was entitled to raise the failure to knock and announce in executing a search warrant, and quoted Judge Hammond, in Henson v. State, 236 Md. 518, 204 A.2d 516 (1964), as follows: The claim that the evidence seized was inadmissible because the police officers executing the search warrant did not advise those within that they had such a warrant and demand admittance, but broke in forcibly without notice, is an extension of the old rule that a peace officer seeking to arrest an individual who is in a house, either by authority of an arrest warrant or under circumstances making a warrant unnecessary, must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter ... Wynn, 117 Md.App. at 160, 699 A.2d 512 (quoting Henson, 236 Md. at 521-522, 204 A.2d 516). This Court's case-by-case analysis explained that Maryland law developed so as to require police to "announce and demand," but the law excuses the failure to do so when circumstances exist, such as officer peril, possible destruction of evidence, or the officer's purpose is evident or known. Wynn, 117 Md.App. at 161, 699 A.2d 512. In affirming Wynn's three convictions for daytime housebreaking and three convictions for theft of property, we upheld the lower court's finding that there were sufficient particularized facts known to the police who executed the warrant to believe that their personal safety justified not announcing and demanding entrance. Id. at 168, 699 A.2d 512. In other words, we held that the exigent circumstances justified a no-knock entry. It is clear that, although Maryland law and the opinions of the Supreme Court of the United States presumptively require knocking and announcing before entry when searching with a proper warrant, the law also forgives the failure to do so when there are legally sufficient exigent circumstances. It is equally clear that there is no blanket or per se exception for drug searches. Rather, in each case, the police must articulate a reasonable suspicion, based upon particularized facts, that exigent circumstances exist which justify not knocking and announcing.[4] *1190 Here, the record fails to show anything more than that Lee was a drug dealer whom the police observed on two previous occasions selling a small amount of a controlled dangerous substance in neighboring Baltimore County. Two days after the District Court judge in Baltimore County issued a search warrant based upon the two observed sales, the task force assembled with no investigation to supplement what the officers had included in the application for the warrant. No one, in either Baltimore County or Harford County, conducted a further investigation through any of the traditional means regularly employed by narcotics officers, such as examining records, surveillance, eavesdropping, additional buys, or undercover contacts. It appears that the Baltimore County investigators, after observing the two sales and obtaining the warrant, simply sought to close the case by passing the matter off to Harford County law enforcement, who then assembled a task force to see if a search would turn up some evidence for the Harford County State's Attorney Office to proceed with prosecution. If there was some reason to believe that Lee was either a "career criminal," a major dealer, or part of a drug distribution organization, or even that he could possibly assist in prosecuting larger and more important cases, it never came to the attention of the Harford County State's Attorney at the trial below, or to the attention of the District Court judge who issued the warrant. The task force leader had no particularized knowledge, beyond what he had learned from the Baltimore County officers who secured the warrant. As near as we can tell from the record, the Baltimore County officers who applied for the warrant themselves had minimal information about Lee, his home, or his manner of keeping drugs, the extent of his involvement in drug trafficking, or his involvement in any other criminal activity. The case was grounded on the observation of two drug sales, and then passed along to a neighboring jurisdiction to proceed with all of the resources it could assemble. At the suppression hearing, the only witnesses to testify were two Maryland State Police troopers called by the State, one of whom testified primarily about having taken a statement from the appellant and not about the conduct of the search. The other trooper, who led the task force, candidly admitted that the only reason he had for not knocking and announcing was that this was a cocaine case, and he always battered down the doors in cases where the object to be seized was narcotics, such as cocaine, that could be easily "flush[ed] down the toilet." The trooper testified that the only exceptions would occur, hypothetically, if the quantity of drugs exceeded the occupant's ability to dispose of them, or the occupants were not at home. The State was unable to elicit from the task force leader any particularized evidence about Lee, Lee's home, or anything else that would qualify as exigent circumstances, as contemplated by Wilson and Richards. The State contends, to the contrary, that the task force leader testified that "Lee was a known drug dealer who sold cocaine on the premises." Support for the existence of such testimony, however, does not exist anywhere in the record, and, accordingly, the State omits any citation to the record on this point in its brief. The State has stretched the bounds of permissible inference *1191 even to suggest this testimony was, in some way, implied. The record is bare of any evidence of exigent circumstances that could possibly eliminate the constitutional necessity to knock and announce. The circuit court erred in ruling that there was justification for the police entry without knocking and announcing. "Without that evidence there is not sufficient proof to sustain the conviction." Glodowski, 220 N.W. at 231. The State insists in its brief, as well as in its motion for reconsideration, that the doctrine of inevitable discovery, an exception to the exclusionary rule, must apply to this case. The doctrine of inevitable discovery, explained by the U.S. Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984), is not intended to place the State "in a better position than it would have been if no illegality had transpired," nor is it intended to place the State "in a worse position simply because of some earlier police error or misconduct." Nix, 467 U.S. at 443, 104 S. Ct. 2501. That exception applied to this case would forgive the police for their unconstitutional entry because, had the police properly knocked on Lee's door and announced their presence, the cocaine in Lee's dresser drawer would have inevitably been discovered and seized, despite the method of entry. The State relies upon People v. Vasquez, 461 Mich. 235, 602 N.W.2d 376 (1999), to support this theory. It is the State's opinion that the Supreme Court of Michigan "aptly" observed that "knock and announce principles do not control the execution of a valid search warrant—they only delay entry for a brief period." Vasquez, 602 N.W.2d at 379. When applied to the facts of the instant case, this is simply incorrect. Knocking and announcing does not "only delay entry;" instead, it entirely changes the method of the entry. An entry commenced by breaking down a door with a concrete-filled pipe will continue in a very different and subsequently more violent manner than that begun by knocking and announcing. Moreover, the consequences of such illegal entry touch all people inside a residence, regardless of their relationship to the person or item to be seized, such as the other adult resident or her three small children in the Lee home. The opinion of the Michigan Supreme Court, apparently the only court in the nation to apply the doctrine of inevitable discovery to knock-and-announce violations, conflicts with decisions of the United States Supreme Court. In his dissenting opinion in People v. Stevens, 460 Mich. 626, 597 N.W.2d 53 (1999), Justice Cavanagh explained the precursor opinion to Vasquez that announced the application of this doctrine to knock-and-announce cases in Michigan, that the United States Supreme Court has applied the exclusionary rule to violations of the knock-and-announce requirement in Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) and in Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968). Although these cases predated Nix, the dissent in Stevens correctly maintains that, "where Nix did not concern a knock and announce case (and could ... be arguable toward such a case only by way of analogy), it would seem more prudent for us to follow the law as it currently has been stated by the Court, and leave it to the advocates to argue for changes in recognition of subsequent decisions and `newer' logic." Stevens, 597 N.W.2d at 69 (Cavanagh, J. dissenting).[5] *1192 The analysis applied by the majority in Stevens and Vasquez is unsound. As explained in Robin L. Gentry, Why Knock? The Door Will Inevitably Open: An Analysis of People v. Stevens and the Michigan Supreme Court's Departure From Fourth Amendment Protection, 46 WAYNE L.REV. 1659 (2000): Courts have used a three-step analysis when applying the inevitable discovery exception, one step of which includes an analysis of whether the evidence would have been discovered by a truly independent means. See United States v. Silvestri, 787 F.2d 736 (1st Cir.1986). In a knock-and-announce case, this independent means is lacking. The legal warrant and the knock-and-announce violation are too closely related. Id. at 1678. Said another way, "the warrant and the method of entry are intimately connected." Id. at 1679. Even if the State were correct in asserting that the evidence would have, in fact, been inevitably discovered, a predictive outcome does not legalize the method of entry. The State's position ignores "the fundamental constitutional importance of what is at stake here." United States v. Leon, 468 U.S. 897, 929, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (Brennan, J. dissenting). As Justice Brennan explained in his dissenting opinion in Leon: While the machinery of law enforcement and indeed the nature of crime itself have changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today-that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government's enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts. Leon, 468 U.S. at 929-930, 104 S. Ct. 3405 (Brennan, J. dissenting). To apply the inevitable discovery exception to the exclusionary rule in this instance would render the knock-and-announce provision of the Fourth Amendment meaningless. The application of inevitable discovery in such cases negates the rule against per se exceptions to the knock-and-announce requirement. The United States Supreme Court has twice unanimously affirmed the requirement to knock and announce. In light of two rulings from the nation's highest court, finding this requirement to exist in both our common law and the Constitution, it would be wrong and utterly inconsistent for Maryland, in effect, to expunge this requirement and establish such an exception as was created in Michigan, by attaching the doctrine of inevitable discovery to violations of the well established knock-and-announce requirement. *1193 JUDGMENT REVERSED. COSTS TO BE PAID BY HARFORD COUNTY. NOTES [1] Some states allow a court to issue no-knock warrants, but there is no such provision in Maryland law. There is some authority from other jurisdictions that, without such an express provision, a court has no ability to grant permission in advance to enter without knocking. See Richards, 520 U.S. at 396 n. 7, 117 S. Ct. 1416. We do not address this issue in the case sub judice. Nothing in this opinion, however, should be read to discourage law enforcement officers from seeking noknock warrants when exigent circumstances justify such action. Evidence that a no-knock warrant was, or was not, sought by law enforcement officers could be a material factor for the trial judge to consider in determining whether there was a reasonable suspicion that exigent circumstances truly existed and consequently justified a no-knock entry. [2] Although the affidavit to support the search warrant was eventually admitted into evidence during Lee's trial, it was not introduced during the suppression hearing. It is unclear what, if any, evidence the District Court judge in Baltimore County reviewed to conclude that Lee was keeping narcotics in his home. Lee argued unsuccessfully that there was insufficient support for a search of his residence, but did not allege that as a basis for his appeal. [3] See also G. Robert Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U. PA. L.REV. 499 (1964). [4] In Richards, Justice Stevens noted: In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime ... This standard—as opposed to a probable cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Richards, 520 U.S. at 394, 117 S. Ct. 1416. [5] Noted Fourth Amendment commentator, Wayne R. LaFave, has called the Stevens decision the "Alice-in-Wonderland version of inevitable discovery," and soundly opined: The Stevens dissent is absolutely correct, and is in full accord with a contemporaneous federal decision [United States v. Dice, 200 F.3d 978, 986 (6th Cir.2000) ] sharply rejecting a Stevens-type argument with the observation that "[t]o remove the exclusionary bar from this type of knock-and-announce violation whenever officers possess a valid warrant would in one swift move gut the constitution's regulation of how officers execute such warrants." 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 11.4 (3rd ed.1996, 2001 Supp.).

2013-10-30 06:32:43.610651+00

Moore

535 S.W.2d 215 (1976) A. G. CARTER, Jr., Appellant, v. James CARTER, Appellee. No. 900. Court of Civil Appeals of Texas, Tyler. March 25, 1976. Rehearing Denied April 15, 1976. *216 Jesse M. DeWare, IV, Lawrence & Lawrence, Tyler, for appellant. Kenneth L. Ross, Sharp, Ward & Ross, Longview, for appellee. MOORE, Justice. This is an appeal from a judgment based upon a compromise settlement agreement made between the parties. Appellee, James Carter, instituted this suit against appellant, A. G. Carter, to set aside a deed to A. G. Carter executed to him by the mother of the parties. The case was called for trial on January 27, 1975. Thereupon the attorneys for both parties announced in open court that a compromise settlement agreement had been reached. The terms of the settlement agreement were dictated and recorded by the court reporter in open court. The attorneys announced that an agreed judgment would be prepared and submitted for the court's signature at a later date. Subsequently a dispute arose over the terms of the proposed judgment. On April 8, 1975, appellee, James Carter, filed a motion for judgment. In his motion for judgment appellee requested the court to enter judgment in accordance with the settlement agreement previously dictated to the court reporter. Attached to the motion was a copy of the settlement agreement as dictated, as well as a proposed judgment. In reply, appellant, A. G. Carter, alleged that the proposed judgment submitted by appellee did not accurately reflect the settlement agreement, but even if it did, he was repudiating the agreement. The trial court conducted a hearing on appellee's motion for judgment on May 5, 1975. At the hearing testimony was taken concerning the entry of judgment. In the course of his testimony appellant testified that he was not agreeable to the entry of the judgment because it did not represent the agreement reached by the parties. After the hearing the trial court granted appellee's motion and the proposed judgment was signed and entered of record in the cause. On appeal appellant urges that the trial court erred in signing appellee's proposed *217 judgment because the undisputed evidence shows he did not consent to the judgment at the time of its rendition. Appellant's position basically is that the settlement agreement agreed to by the parties and dictated to the court reporter on January 27, 1975, cannot, under applicable Texas law, furnish the basis for the court's judgment because he withdrew his consent before the judgment was rendered. Therefore, he contends that since the trial court was appraised of his withdrawal of consent prior to the rendition of judgment, the court was without authority to render judgment. We agree with appellant's position and accordingly reverse and remand. The law seems to be clear that a consent judgment cannot be rendered by a trial court when consent of one of the parties is lacking, even though consent may have theretofore been given by such dissenting party. The rule is that consent must exist at the very moment the trial court undertakes to make the agreement the judgment of the court. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951); W. L. Moody Company, Bankers v. Yarbrough, 510 S.W.2d 396, 399 (Tex.Civ. App.—Houston (1st Dist.) 1974, writ ref'd n. r. e.); Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex.Civ.App.—Houston (14th Dist.) 1972, writ ref'd n. r. e.). Appellant, having made it known to the trial court that he was repudiating the settlement agreement and would not consent to a judgment based on the agreement, the action of the trial court in rendering judgment without his consent was unauthorized. Burnaman v. Heaton, supra. Appellee undertakes to sustain the judgment on the ground that the settlement agreement was made in open court and entered of record in compliance with Rule 11, Texas Rules of Civil Procedure. Therefore he argues that the agreement became enforceable and could be made the basis of the court's judgment. This same argument was rejected by the Supreme Court in Burnaman v. Heaton, supra. Consequently, the judgment cannot be sustained on this theory. Appellee also undertakes to sustain the judgment by arguing that his motion for judgment did not amount to a request for the entry of a consent judgment, but rather was a plea seeking enforcement of the settlement agreement and a rendition of judgment based upon that "contract." We do not agree with this proposition. The motion for judgment merely requested the court to render judgment in accordance with the settlement agreement. Whether the settlement agreement amounted to a valid enforceable contract was an issue not raised by the motion for judgment. The motion only requested the court to make the agreement of the parties the judgment of the court. In any event, the enforcement of the agreement as a contract would involve issues of fact which could only be determined by the court or jury in a trial on the merits. Our reversal of the judgment is without prejudice to the right of appellee to plead the settlement agreement as a contract and seek enforcement thereof and the reversal is likewise without prejudice to appellant's right to attempt to avoid the agreement by pleading lack of mutuality of assent or other defensive matters. These are issues that can be settled only by the court or jury in a trial of the case. The judgment is reversed and the cause is remanded.

2013-10-30 06:32:43.627087+00

Simandle

955 F. Supp. 331 (1997) HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Plaintiff, v. John J. NITTOLO, Defendant, Third-Party Plaintiff, v. Paul Coleman GARBER, Third-Party Defendant. Civil Action No. 95-1811 (JBS). United States District Court, D. New Jersey. January 24, 1997. *332 Douglas F. Johnson, Earp, Cohn, Leone & Pendery, Westmont, NJ, for Plaintiff. James D. Brady, Merchantville, NJ, for Defendant. Mark S. Nathan, McDonald, Nathan & Carbone, Mount Laurel, NJ, for Third-Party Defendant. OPINION SIMANDLE, District Judge: Presently before the court are the motions for summary judgment of plaintiff Hartford Life and Accident Insurance Company ("Hartford") and third party defendant Paul Coleman Garber ("Garber") pursuant to Fed. R.Civ.P. 56. For the reasons stated below, both motions will be granted. I. Background Defendant John J. Nittolo applied for and was issued a disability income insurance policy from plaintiff Hartford which became effective on December 14, 1992. On July 6, 1994, Nittolo filed for benefits under his policy for the disability of hepatitis. Hartford initiated this litigation, seeking a judgment of rescission of the policy on the grounds of material misrepresentation, a declaratory judgment that the policy is null and void, and a declaratory judgment that Nittolo's disability claim is not covered by the policy or its benefit increase rider. Hartford claims that Nittolo misrepresented his income, occupational duties, insurance history, and family and personal medical history on his application for the policy. Nittolo has filed a counterclaim against Hartford to enforce the policy and a third-party complaint against his insurance agent, Garber, for negligence in completing the application for insurance. Hartford and Garber have filed cross-claims against each other for contribution and indemnification. *333 This Court's jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332, and New Jersey's substantive law supplies the rule of decision. II. Discussion A. Summary Judgment Standard A court may grant summary judgment when the materials of record "show 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." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir.1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir.1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S. Ct. 2144, 79 L. Ed. 2d 910 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir.1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248, 106 S. Ct. at 2510). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11. B. Motion of plaintiff Hartford Hartford argues that several misrepresentations made by Mr. Nittolo on his application and during his independent para-medical exam permit a rescission of the policy. Under New Jersey law, an insurer may rescind a policy for equitable fraud on the grounds of false statements in the application which materially affect the acceptance of the risk or the hazard assumed by the insurer. N.J.S.A. 17B:24-3(d); Massachusetts Mutual Life Ins. Co. v. Manzo, 122 N.J. 104, 584 A.2d 190 (1991). To prove equitable fraud, the insurer need not prove that the applicant had an intent to defraud. Even innocent misrepresentation justifies rescission of the policy. Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 651 A.2d 92 (1995); see also Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098 (1994) (holding that insured has absolute duty to tell the truth about all material items on an application). Hartford has presented a laundry list of misrepresentations made by Mr. Nittolo. As evidence of their materiality, Hartford has produced the Certification of Individual Disability Insurance Underwriter, Rebecca Govoni, (Ex. "F" to Pl. 12G Statement) which states that if Nittolo had accurately represented his income, health, occupational duties, or declinations by other insurance companies, the policy would not have been issued as written. Mr. Nittolo responds with two arguments: (1) that the misrepresentations in the application were not material and (2) that any errors in the application were caused by the negligence of his insurance agent, Paul Garber, in failing to accurately record information, failing to ask all of the questions on the application, and refusing to allow Mr. Nittolo an opportunity to review his answers before signing. *334 1. Material misrepresentations by Nittolo a. Income — The application for disability insurance asks for the applicant's net earned income as reportable for federal income tax purposes. (Ex. "C" to Pl. 12G Statement). Hartford argues that since a disability income insurance policy naturally depends upon an applicant's income, a misrepresentation of income is material. Mr. Nittolo applied for a policy which would pay a disability benefit of $2,500 per month, or $30,000 per year. On the application, for both 1991 and 1992, Nittolo's net earned income is listed as $61,500, with $54,000 in wages. In reality, his tax returns reflect wages of $17,600 and $29,755 for 1991 and 1992 respectively. It is only logical, as demonstrated by Govoni's uncontradicted affidavit, that Hartford would not have issued a policy with benefits of $2,500 a month had it been given accurate income information, since a disability benefit of $2,500 per month, tax free, would be a substantial increase in this applicant's income if he became disabled. b. Occupational Duties — The application also requests the applicant to name his occupation and exact daily duties. Hartford claims that Nittolo misrepresented the nature of his job as a ticket broker. The application states that his exact daily duties were to "administrate [sic] the office only. Office Duties." (Id.). At his deposition, however, Nittolo revealed that in fact, his duties include carrying large amounts of cash to purchase tickets and "running crews," which entails putting people in ticket lines at all hours of the night and handling problems his crews encounter in line, such as altercations with police and physical confrontations. Again, Hartford claims that this information would have altered its assessment of Mr. Nittolo's risk, as demonstrated by the Govoni Certification and accompanying risk assessment manual. c. Declination for Other Insurance Policies — The application specifically asked whether Mr. Nittolo had applied or been declined for life or health insurance within the past two years. The answer on the application was simply: "Pacific Mutual Life — 4/91 $500,000 life policy." No other details were given. In fact, Mr. Nittolo did receive a $500,000 life insurance policy issued without regard to his medical history, but was rejected for life insurance by a different company, Penn Mutual, in January 1991, because of an elevated liver function test, and by Prudential in April 1991, because of a pre-existing condition. (Ex. "G" to Pl. 12G Statement). Nittolo claims that he told Garber of these declinations and that he didn't write them down. In his deposition, Garber does admit to making a "scrivener's error" as to one of the entries. Yet, Nittolo bears ultimate responsibility for the misrepresentation because he signed the application which certified that he had read it and that the answers were true, complete and correctly recorded. Moreover, the completed application form was returned to Nittolo as an addendum to his Hartford policy, again placing this important omission before Nittolo. d. Liver Condition — On the application, Mr. Nittolo's response to the question of whether he had ever had "any disease or disorder of the gall bladder, digestive system or liver" was "No." In reality, testimony of three doctors establishes that Mr. Nittolo indicated as part of his medical history that he had hepatitis as a teenager. Mr. Nittolo now claims to have said only that he was "exposed" to an outbreak of hepatitis at his high school and that each of the three doctors must have misunderstood what he said about hepatitis, and that he never was diagnosed with hepatitis until 1994, when he sought disability benefits. At oral argument, Hartford conceded that there may be a fact issue about the hepatitis diagnosis because of Nittolo's different recollection of what he told his doctors, but Hartford argued that Mr. Nittolo still made a material misrepresentation by failing to reveal his elevated liver function tests. Plaintiff's undisputed evidence establishes that Mr. Nittolo knew of his elevated liver enzymes in 1991, when he was denied life insurance for that reason, and also in 1986. (Nittolo letter to Hartford 9/13/94, Ex. "N" to 12G Statement). Hartford has shown that this misrepresentation is material. (Cert. of R. Govoni). Mr. Nittolo also met with a doctor to discuss his liver function test results, *335 but failed to reveal this either during his paramedical examination or in response to the question on the application, "Have you within the past 5 years, consulted a physician or other health care provider ... [or] sought attention in a medical care facility ... ?" Mr. Nittolo well knew the significance of his recent prior history of impaired liver function, since he had both been so informed by his doctor and he knew that the elevated liver enzyme test results were the basis on which Penn Mutual had denied his life insurance application in 1991. Had his application truthfully revealed this information to Hartford, there is no doubt that the policy would not have been issued in its present form — either the application would have been rejected, or an exclusionary rider for liver conditions (including hepatitis) would have been attached. e. Other Misrepresentations — Finally, Hartford claims that Mr. Nittolo made material misrepresentations both on his application and during his paramedical examination in his answers to the questions of whether he had "diabetes, cancer or venereal disease"; "used prescription drugs in the last 5 years" or had a "mental or emotional disorder including anxiety and depression." In responding, Mr. Nittolo failed to disclose that within the prior five years he had been treated for herpes and genital warts, and had been continuously prescribed valium for stress and anxiety (Nittolo Dep. at 42). Mr. Nittolo argues that these misrepresentations were "unintentional non-disclosures" caused by the rushed manner in which his application was taken, and in any case are not material because they are not relevant to the liver condition for which he seeks disability benefits. Again, Nittolo cannot attribute his misrepresentations to Garber after placing his signature on the application. See Monarch Life Ins. Co. v. Donahue, 708 F. Supp. 674, 676 (E.D.Pa.1989) ("By certifying the veracity of the representations made in the application by his signature, an insured is estopped ... from asserting that questions were not asked or that answers given were not recorded properly.") The application itself reads: I have read the statements and answers recorded above. They are to the best of my knowledge and belief true and complete and correctly recorded. They will become a part of this Application and any policy(ies) issued on it. The Company [Hartford] will rely on this information in making its determinations. Further, an applicant's false statements do not have to relate to the ultimate claim for coverage to provide grounds for rescission as long as they are material. See Manzo, 122 N.J. 104, 584 A.2d 190 (1991) (rescinding life insurance policy of insured who died of a gunshot wound because of misrepresentation about whether he had diabetes). The court finds that plaintiff Hartford has met its burden of establishing in this summary judgment motion that each of the above-described misstatements or omissions was material and that the Hartford policy would not have been issued in its present form if correct disclosures had been made. See Haas, 137 N.J. 190, 644 A.2d 1098 (1994); Manzo, 122 N.J. 104, 584 A.2d 190 (1991). 2. Negligence of Garber Mr. Nittolo argues that any material misrepresentations on his application were caused by Mr. Garber's negligence, which should be imputed to Hartford since Mr. Garber was authorized to take its applications. Hartford cites relevant New Jersey caselaw that stands for the proposition that an independent insurance agent, or broker, acts as an agent of the insured, not the insurer. See, e.g., Weinisch v. Sawyer, 123 N.J. 333, 587 A.2d 615 (1991); Wang v. Allstate Ins. Co., 125 N.J. 2, 592 A.2d 527 (1991). Hartford argues that since Mr. Garber was not its employee, and took applications for many other insurance companies, he is not an agent of Hartford. The agreement between Hartford and Mr. Garber also clearly indicates that Garber is an independent contractor, not an agent of Hartford. (Ex. B to Pl. Nov. 21, 1998 letter, "Sales Agreement"). Likewise, the very application that Mr. Nittolo signed indicated as clearly as possible that the broker is only an independent agent who has no authority to bind *336 Hartford. (Ex. "C" to Pl. 12G Statement). As an independent agent, Mr. Garber's alleged negligence cannot be imputed to Hartford. Mr. Nittolo has failed to establish the existence of a genuine issue of material fact regarding the allegation that he made material misrepresentations in obtaining disability insurance or that Mr. Garber's negligence, if any, should be attributed to Hartford. Hartford is thus entitled to a rescission of the policy and summary judgment will be granted in its favor. C. Motion of third-party defendant Garber Mr. Garber also seeks summary judgment as to the third-party complaint against him which alleges negligence and fraud. He argues that he is entitled to summary judgment on the grounds that (1) Nittolo cannot show harm because he was uninsurable at the time he applied for his policy with Hartford and a full disclosure would have resulted in no policy being issued by any other insurer; and (2) material misrepresentations in the portion of the application completed by the paramedical examiner form an independent basis for rescinding the policy. 1. Lack of harm Although Mr. Garber claims that he went through the application carefully and recorded Nittolo's answers accurately, for the sake of argument, he assumes that he contributed to the misrepresentations on the application. Still, Garber argues that as a matter of law, Nittolo has suffered no loss as a result of his alleged conduct because if there had been no misrepresentations on the application, no policy would have been issued. Garber relies on the decision in Hood v. Prudential, 758 F. Supp. 764 (D.D.C.1991), which grants summary judgment for an insurer on the grounds that the insured suffered no harm because Prudential would not have issued the policy if the applicant's true medical condition was known. The Hood court also found that it would be sheer speculation to find harm in the fact that had the original policy been declined, the applicant could have sought and obtained coverage elsewhere. Likewise, Garber argues, it would be sheer speculation to find that Nittolo could have found another insurer given his rejection by two other insurance companies and the Certification of Rebecca Govoni that Hartford would not have issued the policy to Mr. Nittolo had it known his true medical condition. Mr. Nittolo has not produced any evidence that raises a genuine issue of material fact as to whether another insurer may have issued a policy to him. Although Mr. Nittolo did obtain a life insurance policy in April of 1991, that policy was issued on a non-medical basis and is not relevant to the question of whether he could have found an insurer who would issue a disability policy. Thus, summary judgment will be granted on the grounds that Mr. Nittolo has suffered no harm attributable to Mr. Garber's conduct. 2. Alternative grounds for rescission Mr. Garber also argues that summary judgment is appropriate because Mr. Nittolo failed to disclose his liver condition, treatment and medication for stress, and history of sexually transmitted disease to the paramedical examiner during the application process. Mr. Garber contends that these material misrepresentations would have been sufficient for rescission of the policy regardless of his contribution to any misrepresentations on the application. This court agrees that Garber played no role in Nittolo's supplying of incorrect information to the paramedical examiner, and that Nittolo in fact made material misstatements to her when he failed to disclose his liver condition, when he denied he was taking medication for anxiety, and when he denied his history of sexually transmitted disease. (Ex. "E" to Pl. 12G Statement). It is, in short, beyond doubt that the answers Nittolo provided in his medical exam were materially false and resulted in an independent basis for the rescission of his insurance contract. Therefore, even if one were to assume for the sake of this argument that Garber was negligent in writing down some information, his negligence could not have caused this rescission because Nittolo's misstatements *337 to the paramedical examiner without doubt formed an adequate, independent basis for this rescission. The compassion felt toward an individual with a disabling medical condition does not justify a different result or a disregard of clear precedent. The ludicrous excuses for Mr. Nittolo's failures, as argued by his attorney, are worth mentioning only as further confirmation of the lack of a genuine factual dispute: he didn't realize he was taking a prescription medicine (despite his numerous trips to the pharmacy to fill his prescription for valium); he didn't know his valium was prescribed for stress and anxiety, but just thought it was to calm him down, even though he described his condition as "anxiety" in his own deposition (Nittolo Dep. at 42); he had no idea his genital warts and herpes were sexually transmitted diseases; and — the best one of all — the paramedical examiner wasn't paying attention to his answers anyway because she was just flirting with him the whole time. Defendant Nittolo's counsel, at oral argument, invited the court to visit a place he called "Realityville" in deciding this motion. This is a place where "real, ordinary people" are unfamiliar with such obscure medical jargon as "prescription drugs," "anxiety," and "sexually transmitted disease," where they think valium is as common as aspirin, and where they have no reason to know that elevated liver enzymes are a sign of liver disease even when told by a doctor. In Realityville, the argument goes, people usually certify and sign important documents without reading them, and professionals like insurance agents and nurses who have a duty to get things right manage to get everything wrong. In Realityville, people don't know their own incomes and when they give an estimate, it may be inflated by two or three times and still be correct. It seems that in Realityville, people are unable to take responsibility for their mistakes and they blame their problems upon whomever crosses their path. The court declines the invitation to this bizarre place. Unfortunately for Mr. Nittolo's position, the law of Realityville does not apply. The law of New Jersey governs this case and compels judgment in favor of third-party defendant Garber and plaintiff Hartford. III. Conclusion For the above reasons, summary judgment shall be granted to Hartford on its complaint seeking a rescission of the insurance policy and a declaratory judgment that the policy is null and void and will not cover Mr. Nittolo's disability claim. This result also calls for the dismissal of Mr. Nittolo's counterclaim to enforce the policy against Hartford. Summary judgment shall also be granted to Mr. Garber, requiring the dismissal of the third-party complaint filed against him by Mr. Nittolo.

2013-10-30 06:32:43.628576+00

Per Curiam

774 A.2d 22 (2001) Paula KEVORKIAN v. Judith GLASS et al. No. 2000-115-Appeal. Supreme Court of Rhode Island. June 8, 2001. *23 Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ. Ronald J. Fishbein, Evan Kirshenbaum, Warwick, for Plaintiff. John Kershaw, Providence, for Defendant. OPINION PER CURIAM. This case came before the Court for oral argument on May 9, 2001, pursuant to an order that directed the parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The facts insofar as pertinent to this appeal are as follows. In May 1989, plaintiff, Paula Kevorkian (plaintiff), a licensed practical nurse (LPN), was hired by the Pawtuxet Village Nursing and Rehabilitation Center (nursing home or defendants) in Warwick, Rhode Island. She resigned from her position in April 1994, after being accused of insubordination. Specifically, her supervisor, Judith Glass (Glass or defendants), alleged that plaintiff had failed to dispense necessary medication to patients at the nursing home. Two years later, plaintiff sought employment through Mercury Medical (Mercury), a placement agency for nursing personnel. WhenMercury contacted the nursing home, Glass, the director of nursing, supplied a reference for plaintiff. The reference described plaintiff as having "[u]nacceptable work practice *24 habits" (statement). Thereafter, Mercury decided not to hire plaintiff and informed her that the negative reference was the basis of its decision. The plaintiff filed a defamation action against defendants. The case was reached for trial on February 23, 2000. On that day, counsel for defendants handed plaintiff a pretrial memorandum. The subject of the memorandum was whether the statement was defamatory per se. If not, defendants argued, the case must be dismissed since no triable issue would remain. The next day, the trial justice treated the motion as one for summary judgment and granted the motion in favor of defendants. The plaintiff appealed. The plaintiff raises two arguments on appeal. First, plaintiff argues that the trial justice erred in treating defendants' motion as one for summary judgment, without giving plaintiff ten-days' notice to respond as required by statute. See Super.R.Civ.P. 56(c). Second, plaintiff argues that even if the procedure is acceptable, the trial justice erroneously determined that the statement was not defamatory per se. Because we deem the first argument to be dispositive, we need not reach the second. The motion submitted by defendants was entitled "Pre-Trial Memorandum of Defendants."[1] The defendants cited to legal authority and attached two exhibits, the Mercury reference and the employee conference record of the meeting between plaintiff and Glass. In the memorandum, defendants requested that: "[t]he complaint of this plaintiff should be dismissed without a trial on the basis of the legal argument and authorities presented. In thealternative, if a trial occurs, then a judgment as a matter of law should be entered for all defendants pursuant to Rule 50(a) * * *." The trial justice characterized the motion as one for summary judgment. He then determined that "[a] fair reading of the [statement] does not, in the Court's view, constitute defamation. It * * * constitutes a neutral[,] * * * innocuous statement." In making that determination, the trial justice relied on defendants' memoranda, the supporting law, the two exhibits, and the arguments of the parties. The plaintiff did not submit a written response. A request for the court to dismiss a case without a trial based on the legal authorities presented sounds in summary judgment. The defendants' motion could not properly be considered a motion for a judgment as a matter of law, as defendants assert, since Rule 50 of the Superior Court Rules of Civil Procedure may be asserted only during or after a trial. Likewise, the motion could not be considered a motion to dismiss, since the trial justice considered matters outside of the pleadings (the reference and conference forms). See Super.R.Civ.P. 12(b), (c); Dansereau v. Beirne, 701 A.2d 1031, 1032 (R.I. 1997). Indeed, summary judgment is a proper vehicle for a trial justice to determine whether a particular statement is defamatory per se. However, once a trial justice determines that a pretrial memorandum sounds in summary judgment, he then must ensure that the statutory notice requirement has been met. See Salvadore v. Major Electric & Supply, Inc., 469 A.2d 353, 356 (R.I.1983). Failure to do so is reversible error. See id. (citing Enochs v. Sisson, 301 F.2d 125, 126 (5th Cir. 1962); Bowdidge v. Lehman, 252 F.2d 366, 368-69 (6th Cir.1958)); see also General Financial Services, Inc. v. Abilheira, 762 A.2d 799, 800 (R.I.1999) (mem.) (vacating trial *25 justice's decision to hear and grant motion to vacate default judgment since it was not "filed, noticed, and properlysupported * * *"). Thus, the trial justice in this case erred, since he proceeded to hear the merits of the motion, without giving plaintiff ten days to prepare and file a response to the memorandum. The defendants have three arguments in opposition, none of which is persuasive. First, they argue that the procedural error was harmless, since trial had been reached and plaintiff was presumably prepared to argue the merits of her case. We think there is a vast difference between being prepared for trial and being prepared to present a legal argument on the defamatory nature of the statement, and therefore, we find this argument wholly without merit. The defendants also argue that plaintiff's appeal cannot stand since we have held previously that the trial justice has the authority to make a pretrial determination of whether contested statements are defamatory per se. See Beattie v. Fleet National Bank, 746 A.2d 717, 721 (R.I.2000); Belliveau v. Rerick, 504 A.2d 1360, 1363 (R.I.1986). We agree that "[w]hether the meaning of a particular communication is defamatory is a question of law for the court to decide rather than a factual issue for a jury to determine." Beattie, 746 A.2d at 721 (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 2694, 105 L. Ed. 2d 562, 587 (1989) and Gordon v. St. Joseph's Hospital, 496 A.2d 132, 136 (R.I.1985)). However, the trial justice makes this determination after both parties are given the opportunity to be prepared pursuant to the applicable rule of procedure. See McCann v. Shell Oil Co., 551 A.2d 696, 697 (R.I.1988); Healey v. New England Newspapers, Inc., 520 A.2d 147, 148 (R.I.1987); Elias v. Youngken, 493 A.2d 158, 159 (R.I.1985). Finally, the defendants argue that since they did not move for summary judgment by name, they could not possibly be required to secure a hearing date and give the plaintiff the proper notice. Werefuse to give this argument credit since doing so would endorse and encourage parties to bury motions in pretrial memoranda or to neutrally label motions to avoid the rules of procedure. Accordingly, the plaintiff's appeal is sustained. We vacate the judgment of the Superior Court and remand the case to that court so that it can treat the defendants' motion as a motion for summary judgment after all parties have been "given [a] reasonable opportunity to present all material made pertinent to such a motion by Rule 56." DiBattista v. State Department of Children, Youth & Families, 717 A.2d 640, 642 (R.I.1998) (quoting Rule 12(c)). NOTES [1] The certification on the pretrial memorandum is dated February 15, 2000, but defendants admit that it was not given to plaintiff or the trial justice until February 23, 2000.

2013-10-30 06:32:43.681498+00

Coleman

535 S.W.2d 786 (1976) JIM DANDY FAST FOODS, INC., d/b/a Church's Fried Chicken, Appellant, v. Miriam CARPENTER, Appellee, No. 16663. Court of Civil Appeals of Texas, Houston (1st Dist.). April 1, 1976. *787 Chilton Bryan, Ronald J. Sommers, Houston, for appellant. Simpson, Motgan & Burwell, Susan W. Burris, Texas City, for appellee. COLEMAN, Chief Justice. Miriam Carpenter, plaintiff, sued Jim Dandy Fast Foods, Inc., to recover damages by reason of personal injuries suffered by her as a result of eating a piece of chicken sold to her by defendant. Judgment was rendered for the plaintiff based on the jury verdict. Jim Dandy Fast Foods, Inc., owns and operates a retail fried chicken restaurant known as Church's Fried Chicken located in Texas City, Texas. On September 16, 1970, plaintiff entered this restaurant and ordered a fried breast of chicken. After receiving her order, she sat down at a table. She then took her fingers and pulled a piece from the meaty portion of the chicken breast and put it in her mouth. This was a piece of white meat covered with a heavy crust. She chewed it up and swallowed it. She then felt something in her throat and took a bite of bread thinking that a piece of the crust had struck in her throat and the bread would cause it to go on into her stomach. After she realized it was a bone, she attempted to remove it with her finger. Her attempt was unsuccessful and she was bleeding. She asked an employee to direct her to a doctor and was eventually admitted to a hospital where a piece of bone was removed from her throat. There is testimony that the doctor and his nurse accompanied the plaintiff as she left the operating room and that the doctor gave to plaintiff's husband a piece of chicken bone at that time. The trial court admitted this piece of bone into evidence. This is a small curved bone one inch in length. One end is smoothly cut at an angle creating a sharp point. The other end is not a smooth cut. The plaintiff testified that she knew that there were bones in chicken and that she knew certain areas where those bones were located. She did not expect a bone to be in the part of the chicken breast which she placed in her mouth. She had never encountered a bone in that particular part of the chicken. When she received the chicken she couldn't see anything wrong with it such as bones sticking out. She did not feel the bone as she chewed the chicken. Dr. Stiernberg, an ear, nose and throat specialist, testified that he removed a piece of chicken bone from the plaintiff's esophagus. He did not remember whether or not he gave the piece of bone to the plaintiff. Mr. Pete Ober testified that for many years he had been engaged in the meat business and was experienced in cutting up chicken for the retail trade. He had examined the piece of bone introduced as an *788 exhibit in this case. He testified that he had never seen a chicken bone cut like that before. He testified that the piece of bone was a part of the wishbone. He always disjointed the chicken and left the wishbone whole. He stated that it was not proper to cut up a chicken in such a manner as to leave part of the breast meat on the wing piece. He stated that while the wishbone was part of the breast it was not joined to the breastbone. He testified that the wishbone was ordinarily cut as a separate piece of chicken, but that at times the breast was split. In such a case half of the wishbone would be found which would be a lot longer than the piece in question. He testified that if a person is eating a piece of breast and pulls off one piece of the breast he should not encounter a bone like the one in question. Mr. Lawrence Smith, president of City Poultry Processing Company, a division of Jim Dandy Fast Foods, testified. He was familiar with the manner in which chickens were cut up for Church's Fried Chicken. It is an 8-piece cut. There are nine government inspectors and one government grader in the plant at all times that it is in operation. The inspectors check to see that the poultry is fit for human consumption and the grader checks to see whether the chicken is properly cut. Mrs. Lois Hale who is a supervisor with the defendant testified that the U.S.D.A. inspectors make a random check probably two times a day to determine whether the chicken is cut up in the fashion established by the defendant. They do not examine individual pieces other than to see that they are cut in a uniform manner. She testified that the wishbone is not taken off but that it is a part of the piece of breast. Mr. Smith testified that 50,000 to 60,000 chickens per day were processed in the plant; that the management specifies that chickens be cut into eight pieces and that they advertise larger, bigger and better pieces. The cutters are instructed to cut the breast into two pieces except that part of the breast is also left attached to each wing in order to give the wing portion a little more of a meaty characteristic. The upper shoulder of the breast is left attached to the wing and the remainder is cut into two pieces. The inspections are visual and are made by means of random spot checks. Mr. Smith testified that if the chicken is improperly cut internally so that a bone is "cut internally incorrectly" there would be no way to find this from a visual inspection. He was asked, "If something in wrong on the inside, say chipping has occurred where bone got imbedded in the meat, there would be no way for the inspector to notice this?" In answer he stated: "I don't know. I assume if it was deep in the meat, they don't x-ray or anything of that nature. It's possible." Mrs. Hale was shown the bone which was introduced into evidence and was asked if she would expect to encounter a bone like that in the breast and she answered that she would. When she was asked if she would expect it to be off the front of the breast she answered, "No, no. No, not on the meaty part, no." She stated that if you pull of a piece of the meat from the front of the breast the piece of bone would not be in there. She had never seen a bone in the meaty top part of the breast. She testified that it was their practice to split the breast down the center and that the pulley bone would be cut into two pieces, but that the pieces would not look like the exhibit in this case. She further stated that she did not know whether she had ever cut anything like the exhibit because "it's in the meat." In answer to Special Issue No. 1 the jury found that the chicken served by the defendant to the plaintiff on September 16, 1970, "was in a defective and unreasonable dangerous condition making it unfit for human consumption." By answer to Special Issue No. 2 the jury found that the "defective and unreasonable dangerous condition" of the chicken was a proximate cause of the plaintiff's injuries. Special Issue No. 4 reads: "Do you find from a preponderance of the evidence that Miriam Carpenter, in buying and receiving the chicken breast in question, at the time and on the occasion *789 in question, had reasonable expectation of finding bones in, about, and around the chicken breast, as she bit into, chewed, and swallowed the chicken breast and knew that she would have to use the care and prudence for her own safety in the exercise of such precaution for her own well being, as a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?" The jury answered, "She did have reasonable expectation." but in answer to the next special issue failed to find that the failure of Miriam Carpenter with respect to the reasonable expectation of finding bones was a proximate cause of any injury or damage she received. The jury failed to find that Miriam Carpenter assumed the risk of chicken bones in eating the chicken and failed to find her guilty of any acts of contributory negligence. The jury found damages in the sum of $1500.00. The appellant objected to Special Issue No. 1 on the basis that there was no evidence, or insufficient evidence, to warrant the submission of the issue to the jury. The appellant also urged a motion for judgment notwithstanding the verdict of the jury for the reason that the plaintiff "totally failed to prove that the piece of chicken was defective, inedible, and unreasonably dangerous at the time it left the hands of the defendant." In connection with these points the appellant calls attention to the testimony on the part of the plaintiff that she knew that the piece of breast of chicken that she got from appellant had some bones attached and that she knew there were bones in chicken. In response the plaintiff argues two propositions: first, that the piece of chicken was improperly cut and that the wishbone was not in its normal and expected size and shape, and second, that the piece of chicken breast was so cut by the defendant as to place a segment of the wishbone in the fleshy part of the chicken where its presence would not be anticipated. They contend that the piece of chicken cut in this manner was defective and that by reason of the defect the jury was entitled to find that it was not reasonably fit for human consumption. It has long been established in this state that where food products sold for human consumption are unfit for that purpose, the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942). Texas is firmly committed to the rule stated in the Restatement of Torts, 2d ed., Sec. 402A. The rule of strict liability there stated is applicable to vendors of food. In order to prevail under the rule of strict liability, the plaintiff must prove that the injury which he sustained was caused by the unwholesome and unfit condition of the food served to him. The fact that the food served was unfit for human consumption can be shown by circumstantial evidence. Hebert v. Loveless, 474 S.W.2d 732 (Tex. Civ.App.—Beaumont, 1971, ref. n. r. e.); F. W. Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ.App.—San Antonio, 1965, writ ref'd n. r. e.). A recovery was denied the plaintiff in a case where he broke a tooth by biting on a cherry pit concealed in a cherry pie. Hunt v. Ferguson-Paulus Enterprises, 243 Or. 546, 415 P.2d 13 (1966). It was contended in that case that there was a breach of a warranty imposed by law that the pie was reasonably fit for human consumption. The court noted that in the consideration of similar cases some of the courts have drawn a distinction between injury caused by spoiled, impure, or contaminated food or food containing a foreign substance, and injury caused by a substance natural to the product sold, and in the latter class of cases these courts hold that there is no liability on the part of the dispenser of food. As an example, the court cited Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144, where the court said: "... despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in *790 the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones." The Oregon court then noted that other courts have rejected the so-called "foreign-natural" test in favor of what is known as the "reasonable expectation" test. As an example, the court cited Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 103 N.W.2d 64, which held that a person who was injured by a chicken bone in a chicken sandwich served to him in a restaurant could recover for his injury. The Wisconsin court stated: "`There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected by the consumer is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.' 10 Wis.2d at 331-332, 103 N.W.2d at 68." An action against the packer of boned chicken in a sealed can for personal injury sustained by a small girl eating Chow Mein containing chicken taken from the can, when a small bone lodged in her esophagus, was considered by the Maryland Court of Appeals in Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442, 77 A.L.R. 2d 1 (1959). There the Court of Appeals reversed the judgment of the trial court which was based on a directed verdict for the defendant. The court found a division of authority on the question of whether bones which are natural to the type of food eaten, but which generally are not found in the style of food as prepared, are to be deemed the equivalent of a foreign substance in determining whether the food in which they are found is reasonably fit and safe for human consumption. The court reviewed a number of authorities and determined that the question of fitness and safeness for human consumption is measurable by the same tests in both warranty cases and negligence cases and found that an issue of fact was raised. Some courts hold that the fact that the substance in a food product causing harm to a consumer is natural to the food eaten, such as a piece of oyster shell in a can of oysters, or a splinter from a bone in a t-bone steak, is merely persuasive and relevant evidence bearing on the question as to whether the product was in fact reasonably fit for human consumption as food. Other courts hold that where a potentially harmful substance in a food is natural to the product and it can be said as a matter of common knowledge that such product occasionally contains such a substance, the product is as a matter of law reasonably fit for human consumption. Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d 913 (1942). The question is whether the piece of chicken was in a defective condition unreasonably dangerous to the plaintiff. The Restatement of Torts, 2d, Sec. 402A; Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). Comment g. to Sec. 402A, supra, states that the rule applies "only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." The defective condition may be the result of the way in which the product is prepared. Comment h., supra. An article is unreasonably dangerous when the article sold is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Comment i., supra. There is evidence that the piece of chicken was not cut in the usual and customary manner. The wishbone was smaller *791 than might be expected; the bone was relatively sharp at both ends. The consumer would expect to find bones in and about such a piece of chicken. We think reasonable minds could differ as to whether this bone was in a condition not contemplated by the ultimate consumer. Reasonable persons might also differ as to whether the piece of chicken in which this particular bone was found was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics. A jury question was presented which was resolved by the jury in favor of the plaintiff. The court did not err in rendering judgment for the plaintiff. Nor did the court err in overruling defendant's exception and objections to Special Issue No. 1 of the court's charge. Each finding made by the jury was supported by evidence of probative force. We find no points of error which properly present a question concerning the great weight and preponderance of the evidence. In no point does the appellant contend that the trial court erred in overruling its motion for new trial because a finding was contrary to the great weight and preponderance of the evidence. It does complain that the court erred in rendering judgment for the plaintiff because certain issues were contrary to the great weight and preponderance of the evidence, and further presents points contending that the court erred in overruling the defendant's exceptions and objections to certain special issues for the reason that an answer to such issue would be against the great weight and preponderance of the probative evidence. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.1964); Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ. App.—San Antonio, 1965, writ ref'd n. r. e.). The judgment is affirmed.

2013-10-30 06:32:43.72039+00

Henry

535 S.W.2d 858 (1976) WOOTEN TRANSPORTS, INC., et al., Appellants, v. Sarah Marie HUNTER et al., Appellees. Supreme Court of Tennessee. April 5, 1976. *859 John P. Branham, Howell & Fisher, Nashville, for appellants. Michael R. Jones, Sprouse, Long & Walton, J. Travis Price, Springfield, for appellees. OPINION HENRY, Justice. This is a suit for death benefits under the Tennessee Workmen's Compensation Law. The employer defended upon the grounds (1) that the deceased workman was an independent contractor and (2) that his death was brought about by his own voluntary intoxication. The trial judge found the issues in favor of the employee and awarded the statutory benefits. The employer has perfected its appeal. I. The employer, Wooten Transports, Inc. is based in Nashville and is engaged in the delivery of gasoline and petroleum products in Tennessee and Kentucky. On 13 August 1973, the deceased, Jimmy W. Hunter, entered into a written agreement with Wooten for the lease of a tractor for use in pulling a tanker trailer owned by Wooten and used in connection with its deliveries. On 23 October 1973, he was fatally injured under circumstances more fully discussed hereinafter. Under the terms of the written agreement it was Hunter's responsibility to equip and maintain the tractor and pay all expenses in connection therewith to include operating expenses, taxes and fees. As compensation he received a stated percentage of the gross revenue earned by the use of the tractor. He had the option of driving the leased equipment himself or of employing a driver with appropriate adjustments in payments. Paragraph 4a provides in part as follows: Notwithstanding any other provision contained herein, it is agreed that the leased equipment shall at all times during the term of this lease be operated by Lessee's exclusive direction and control... . Paragraph 4g provides as follows: The Lessee shall at all times have the sole right to select the driver who is to operate the leased equipment described herein, including the right to discharge said driver when and if such action is believed to be advisable, in the discretion of the Lessee. The driver of the leased equipment shall be the employee of Lessee, and subject to its exclusive direction and control at all times during the term of this lease. In the event the Lessee determines that a driver is unsatisfactory for any reason, it shall have the right immediately to terminate the services of such employee, whether he be the owner of the leased equipment, or not. (Emphasis supplied). Thus it will be seen that the parties contracted that the leased equipment would be operated under Wooten's exclusive direction and control; that Wooten had the sole right to select the driver; that Wooten had the right to discharge the driver and that the driver would be Wooten's employee. This alone tends to establish a master-servant relationship; however, there are other circumstances which further support the trial judge in determining that Hunter was an employee as opposed to an independent contractor. Among these is the fact that a decal was placed on the tractor reading "Wooten Transports, Inc." along with the appropriate ICC numbers. Similar identification appeared upon the tanker trailer. The proof fairly shows that Hunter was employed on a full-time basis. Prior to his employment he was required to undergo a training period and to take a physical examination. Wooten had other employees who did not own their equipment but it is apparent from the record that they had substantially the same working hours, worked under the same conditions and were governed by the same policies. *860 It is true that there was no deduction from Hunter's wages for Social Security, income taxes, and that Workmen's Compensation was not paid upon him, and that he did not appear as an employee upon their payroll; however, we do not consider these matters to be of controlling significance. Our review of the record leads us to the conclusion that there is ample material evidence to support the trial judge's conclusion that there was an employer-employee status. Moreover, in making this determination, it is our duty to give the act a liberal construction in favor of the fact that one is an employee rather than a strict construction holding him to be an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43 (1956). We recognize, of course, that there is no fixed and rigid formula by which these matters are to be determined and that each case must be decided on the basis of its own peculiar facts and circumstances; however, running through all of the cases is the notion that the right of control is the vital test, the controlling consideration or the decisive fact, and the question is not whether the right was exercised but whether it existed. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323 (1950). After reciting this general proposition the Court in Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41 (1959), points out that "[t]he fact that neither social security tax nor withholding tax was deducted is not a controlling factor." 205 Tenn. at 471, 327 S.W.2d at 44. Additionally, the clear rule has evolved that one of the controlling considerations is the right of termination. This rule of law is recognized in Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220 (1971), a case where the factual situation is somewhat analogous to the case under consideration. Based on the record before us and these controlling principles of law, we hold that the deceased workman was an employee of Wooten Transports, Inc. II. The second insistence of the appellee is that Hunter's death occurred as a result of his intoxication at the time of his fatal accident. On 23 October 1973, Hunter was dispatched to deliver a load of gasoline to a filling station in Auburn, Kentucky. Upon the completion of his delivery and at about 6:00 p.m., he left Auburn enroute to his home in Springfield, Tennessee where he lived, and, with the knowledge and acquiescence of Wooten, kept his rig. The fatal accident occurred on U.S. Highway 41 inside the city limits of Springfield. It is not necessary that we detail all of the facts. Suffice it to say that as he was proceeding southwardly, an automobile pulled out into his pathway and either because of his speed, or his inattention, or his intoxication, or some other act of negligence, or because of the sudden emergency precipitated by the driver of another automobile pulling onto the highway in front of him, he crossed the highway and struck another tractor-trailer rig, after having skidded some 266 feet. The record shows that there was no traffic proceeding in either direction which would have kept him from pulling around the vehicle in his pathway. This vehicle remained in the extreme right southbound lane of a five-lane highway and unquestionably, he could have pulled around. Why he did not do so is not shown in the record. We may not speculate or conjecture as to the cause of the accident. It will be borne in mind that this is not a conventional tort action or damage suit based upon a collision of vehicles, and the fact that Hunter may have been guilty of negligence does not operate to bar the payment of death benefits under the Workmen's Compensation Law. Poe v. E.I. DuPont DeNemours & Co., 224 Tenn. 683, 462 S.W.2d 480 (1970). The record reflects without contradiction that a pint whiskey bottle with one third to one half missing was found in the cab of his truck after the accident and that a blood test was taken, showing that the blood contained ethyl alcohol *861 in the amount of 0.10 per cent, or 100 miligrams per cent. The deposition of Dr. Jerry T. Francisco, Chief Medical Examiner for the State of Tennessee was taken and filed in this cause. Dr. Francisco testified, among other things, that this percentage of alcohol in the bloodstream would operate to affect a person's response in a given situation; that that response would be prolonged and that the ability to judge a given situation and respond to it would be altered and affected and the individual would lose the capacity to make appropriate judgments in any given situation. We accept this testimony at face value. The difficulty is that there is no direct proof that intoxication was the proximate cause of this accident. There is proof from which it might be inferred, but there is also proof from which it might be inferred that the proximate cause was the entry of the automobile onto the highway in the pathway of Hunter's vehicle. There is material evidence from which the trial judge might have made either finding. Section 50-910 T.C.A. reads as follows: Injuries not covered. — No compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, or due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above stated ways, the burden of proof shall be on the employer to establish such defense. (Emphasis supplied). Under the facts and circumstances of this case, we cannot hold that the employer has carried its requisite burden of proof. This Court does not re-weigh the evidence, and if the findings of the trial judge are supported by inferences which may reasonably be drawn from the evidence, this Court will not disturb those findings, although the evidence may be reasonably susceptible of other or different inferences. Sudduth v. Williams, 517 S.W.2d 520 (Tenn. 1974). This Court has consistently held that it will sustain the trial judge even where the preponderance is against his findings if they are supported by material evidence. Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966). Additionally, the Workmen's Compensation Act contemplates liberality, not only in the admission of evidence but also in the inferences to be drawn therefrom, and in borderline cases, the Court will endeavor to carry out the benevolent objects of the act and resolve doubt in favor of the claimant. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966). The judgment of the trial court is Affirmed. FONES, C.J., BROCK and HARBISON, JJ., and LEECH, Special Justice, concur.

2013-10-30 06:32:43.742643+00

Greenaway

955 F. Supp. 337 (1997) John BARONE, Plaintiff, v. GARDNER ASPHALT CORPORATION, Defendant. Civ. No. 95-2887 (JAG). United States District Court, D. New Jersey. February 21, 1997. *338 *339 John Barone, Dunellen, NJ, pro se. Marie A. Latoff, Hannoch Weisman, Roseland, NJ, for defendant. OPINION GREENAWAY, District Judge. This matter comes before the Court on the motion for summary judgment of Hannoch Weisman, attorneys for Gardner Asphalt Corporation ("Gardner Asphalt"). FACTS Defendant Gardner Asphalt is in the business of manufacturing and wholesaling products for use in the roofing industry. Plaintiff John Barone worked for Gardner Asphalt from approximately March 1986 until December 9, 1994. Mr. Barone's Complaint alleges that his former employer, Gardner Asphalt, wrongfully terminated his employment in breach of an alleged employment contract (Count One), discharged him solely because of his age (Count Two), owed him a bonus based on his performance from September 1, 1993 through August 31, 1994 (Count Three) and owed him compensation for fifteen days of vacation time accrued but never taken (Count Four). The following facts are relevant to Mr. Barone's claims against Gardner Asphalt: In approximately March 1986, Mr. Barone received an offer from Mr. Raymond Hyer, Chairman of the Board and Chief Executive Officer of Gardner Asphalt, as an at-will employee.[1] Mr. Barone accepted the position. There is no evidence in the record to suggest that either party discussed a specific term of employment or that the parties executed or contemplated executing an employment contract.[2] There is also no evidence that any representative of Gardner Asphalt made any statements that Mr. Barone could only be terminated for cause. In addition, Mr. Barone admitted at his deposition that at least until December 13, 1994, Gardner Asphalt employed him as an at-will employee. Initially, Mr. Barone worked directly for Mr. Hyer in the Emulsion Products Division and performed a variety of jobs. After approximately two years, Mr. Barone became more involved in sales and moved from the Emulsion Products Division to the main payroll of Gardner Asphalt. In 1990, Mr. Barone received a promotion to regional sales manager. As regional sales manager, Mr. Barone's main responsibility focused on increasing business for Gardner Asphalt. Beginning in the late 1980s and continuing through the 1990s, the building industry, and thus the roofing products market, was depressed.[3] Indeed, Mr. Barone admitted that the building roofing material market was in dire straits prior to his termination: at his deposition, sworn to on February 9, 1996, he testified that "[t]he building roofing materials market was totally depressed, oh, God, for the last three or four years ..." Barone Dep. at 127, 20-22; see also Latoff Certif., Ex. D, at 127. At the annual conference for regional sales managers held in January 1994, top management, acknowledging that action was necessary to combat the depressed market, directed its regional managers to develop a long-term strategic plan to increase sales. The regional managers also received instructions to contact the existing customer base to reinforce relations, to foster the dedication of the *340 sales force and to write a job description for the district managers, as soon as possible. Mr. Barone failed to comply with these directives. Mr. Hyer also continued to receive complaints from customers, his sales force and other top managers of Gardner Asphalt that Mr. Barone failed to respond to their messages, to call the national office, or to inquire about the problems that needed his immediate attention. In addition, Mr. Barone failed to submit schedules, sales receipts and expense reports in a timely manner. In October 1994, approximately two months prior to Mr. Barone's termination on December 19, 1994, Gardner Asphalt lost the Channel, United Asphalt, and Seaboard Supply Co. accounts. These northeast regional customers, for which Mr. Barone had direct responsibility, constituted the vast majority of the northeast region's business.[4] Indeed, Mr. Barone had failed to develop any new customers over the last two years of his employment. Hyer Certif. ¶ 30. Gardner Asphalt believed that Mr. Barone (1) performed his job unsatisfactorily, (2) caused the loss of the Channel and other accounts and (3) brought about a general decline in the profitability of the northeast region. As a result, Mr. Hyer, along with Edwin Plemons, Chief Operations Officer, and Michael A. Bell, Vice President of National Sales, decided to terminate Mr. Barone. On December 13, 1994, Mr. Bell met with Mr. Barone at the Kearney, New Jersey office. In preparation for this meeting, Mr. Bell spelled out Mr. Barone's deficiencies in a memorandum to Mr. Barone, entitled "Re: Conditions of Employment", (hereinafter, the "Memorandum"). This Memorandum states in its entirety: As the Vice President of National Sales for Gardner Asphalt Corp., it is my responsibility to ensure timely communications to and from the field sales force; prompt T & E expense reporting; and organized growth of our product sales into all segments of our target markets. In this vein, you are required to comply with the following procedures. · You are to check your voice mail a minimum of three times daily, no later than the following times: 9:00 AM; 1:00 PM and 3:30 PM. · During these calls you are to check with Tami Watson to determine if you are needed to answer any questions or resolve any problems in your area of responsibility. · All matters requiring your input, action or attention are to be handled immediately without delay. · Expense reports are to be completed and on my desk no later than seven (7) working days after the week ending date. · Any entertainment expenses exceeding $50.00 must be approved by me in advance. · A formal business plan outlining Target Accounts by sales person, dollar volume, lost business and a strategic plan on how to grow our business in a planned and organized manner in 1995 must be on my desk no later than 12-31-94. · Establish a realistic plan to replace the sales volume lost at Channel Home Centers. Due date 12-31-94.[5] · A daily work schedule, updated weekly, portraying account calls, goals and expected results of the call with buyers [sic] name and phone number is to be submitted monthly. Due date is the last working day of the month. Failure to comply with any or all of the above conditions may result in your immediate dismissal. Latoff Certif., Ex. J. At no time did Mr. Bell state or imply to Mr. Barone that this Memorandum was an employment contract or that it curtailed Gardner Asphalt's right to terminate Mr. Barone with or without cause.[6]*341 Nothing in the Memorandum states that Mr. Barone's employment was for any specific duration, that he could not be terminated at any time or that his status as an at-will employee was otherwise altered in any way. In addition, nowhere in the Memorandum does it state that compliance with these requirements will guarantee employment for any specific duration. Subsequent to giving Mr. Barone this Memorandum, Mr. Bell asked Mr. Hyer to give Mr. Barone another chance. However, Mr. Hyer did not want to do this and instructed Mr. Bell to terminate Mr. Barone immediately.[7] As a result, Mr. Bell informed Mr. Barone of his termination on December 19, 1994. When Gardner Asphalt hired Mr. Barone, he was 45 years old. When terminated, Mr. Barone was 54 years old. The other three regional managers employed at the time of Mr. Barone's firing — Glenn Loyster, Stephen Crone and Paul Jacka — were 60, 47 and 45 years of age, respectively.[8] In addition, of Gardner Asphalt's 220 current employees, 121 are 40 years of age or older and 61 are 50 years of age or older. After his termination, Mr. Barone spoke to several former and present employees of Gardner Asphalt regarding his firing. During his deposition, Gardner Asphalt questioned Mr. Barone about the content of these conversations. Mr. Barone responded that he had not mentioned to any of these individuals that he believed the reason for his termination was age discrimination. Mr. Barone also admitted during his deposition that he did not recall anyone at Gardner Asphalt commenting about his age. In early 1994, Gardner Asphalt sent out an "Intercompany Memo", announcing their new bonus program, which was designed to motivate its sales force and to increase sales. In his Complaint, Mr. Barone alleges that he is due a bonus in the amount of $7,200 based on his performance at Gardner Asphalt from September 1, 1993 through August 31, 1994.[9] Gardner Asphalt claims that the reason it did not give Mr. Barone a bonus is that the bonus program was a discretionary program paid to employees who significantly contribute to an increase in the sales of Gardner Asphalt. According to Gardner Asphalt, in 1993 and 1994, Mr. Barone did not maintain existing accounts, much less generate any new ones. However, the Gardner Asphalt "Intercompany Memos" from David Robertson, dated January 19, 1994 and February 1, 1994 clearly indicate that the bonus program at Gardner Asphalt was not discretionary and indeed was nothing more than a straight mathematical calculation based on an individual's quota sales. See Barone Certif., Ex. 3 and Latoff Certif., Ex. P. In addition, the Certification from Richard Thurston, who was Mr. Barone's contact at Channel, provides evidence that Mr. Barone contributed to increased sales at Gardner Asphalt during its 1993-94 fiscal year.[10] Specifically, Mr. Thurston stated that "[b]ecause of Mr. Barone's efforts for Gardner Asphalt, which resulted in a annual sales increase of approximately 35% for 1993, *342 Gardner Asphalt was recognized by Channel Home Centers as `vendor of the year.'" Gardner Asphalt's vacation policy, in effect at the time of Mr. Barone's initial hiring, provided two weeks vacation to employees with more than six months continuous service and three weeks for employees with more than ten years. In 1993, the policy changed to provide three weeks vacation to employees with more than seven years continuous employment. Gardner Asphalt's vacation policy specified that vacation time is to be calculated based on the number of years employed, but that the days did not accrue until the start of the new calendar year.[11] Prior to Mr. Barone's termination in December 1994, he had been employed by Gardner Asphalt for seven years, nine months. Based on a computation of vacation accrued under the terms of the new and old plans, Mr. Barone was entitled to thirteen vacation days during 1994. Mr. Barone admitted at his deposition that he took thirteen days vacation during 1994. Mr. Barone's testimony is consistent with Gardner Asphalt's records. DISCUSSION Fed.R.Civ.P. 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.1985), cert. denied, 475 U.S. 1013, 106 S. Ct. 1190, 89 L. Ed. 2d 305 (1986); Chaffee v. Kraft General Foods, Inc., 886 F. Supp. 1164, 1167 (D.N.J.1995). The party opposing the motion for summary judgment cannot rest on mere allegations or denials but must instead present actual evidence that creates a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243, 106 S. Ct. 2505, 2507, 91 L. Ed. 2d 202 (1986); Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 97 S. Ct. 161, 50 L. Ed. 2d 137 (1976). Wrongful Discharge Claim Pursuant to New Jersey state law,[12] an employment of no set duration may be terminated at the will of either the employer or the employee; this long-standing rule allows either party to the employment relationship to terminate that relationship with or without cause or notice, in the absence of an implied or express contract providing otherwise. Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 191, 536 A.2d 237 (1988); English v. College of Medicine and Dentistry, 73 N.J. 20, 23, 372 A.2d 295 (1977); see also Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397, 643 A.2d 546 (1994) ("[i]n New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine.") Absent a written contract of employment, there are only two exceptions to the at-will doctrine: (1) where the employee is terminated in violation of a clear expression of public policy, see Velantzas, 109 N.J. at 191-92, 536 A.2d 237 (citing Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980)); or (2) where the employee handbook creates an implied contract of employment. Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 285-86, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985); Witkowski, 136 N.J. at 392, 643 A.2d 546; Nicosia v. Wakefern Food Corp., 136 N.J. 401, 407-08, 643 A.2d 554 (1994). The second exception to the at-will employment doctrine *343 applies to employees whose employment is governed by an employee handbook or manual. "[A]bsent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will." Id. Mr. Barone does not allege either a public policy claim or that Gardner Asphalt's Personnel Policy Manual constitutes an implied employment contract. However, even if Mr. Barone had made an implied contract claim, there is express disclaimer language in the Manual which provides otherwise. Under Policy 103:1 of the Manual, entitled "Employment-at-Will", it states that it is "the policy of the company that all employees who do not have a written employment agreement are employed at the will of the company for an indefinite period. Employees may resign from the company after prior notice and may be terminated by the company at any time, for any reason, and with or without notice." Latoff Certif., Ex. M.[13] Mr. Barone admitted signing an "Acknowledgment", stating that he had received this Manual. Latoff Certif., Ex. L. In addition, Mr. Barone's wrongful discharge claim is especially inappropriate given that, during his deposition, he conceded that, at least until December 13, 1994, he had been employed at-will. Mr. Barone's claim for wrongful discharge, based on the writing of December 13, 1994, entitled "Conditions of Employment", (hereinafter, the "Memorandum"), also must fail. Nowhere in this Memorandum does it state (a) that it is an employment contract; (b) that compliance with these requirements will guarantee employment for any specific duration; (c) that Mr. Barone is anything more than an at-will employee; or (d) that there is a promise of employment for a determinate amount of time or that there is any restriction placed on Gardner Asphalt's ability to terminate Mr. Barone. In short, nothing in this Memorandum alters Mr. Barone's status as an at-will employee. In addition, there is no merit to Mr. Barone's suggestion that his colloquy with Mr. Bell — i.e., Mr. Barone's question to Mr. Bell about whether "Tampa" (the national office) had approved the Memorandum, and Mr. Bell's response that it was approved — is proof that the Gardner Asphalt intended the Memorandum to be some sort of an employment contract. In short, Mr. Barone fails to refute defendant's evidence, demonstrating that there was never an employment contract, express or implied, between Mr. Barone and Gardner Asphalt. Plaintiff has failed to create a genuine issue as to a material fact; therefore, his wrongful discharge claim against defendant Gardner Asphalt is dismissed. Age Discrimination Claim To sustain a claim for age discrimination, a plaintiff must proceed under the shifting burdens analysis first enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).[14] Under the shifting burdens analysis, a plaintiff must first establish a prima facie case of discrimination. Id.; *344 see also O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, ___, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (1996); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407 (1993); Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir.1990); Maxfield, 766 F.2d at 791; E.E.O.C., 829 F.Supp. at 1449; Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 31, 429 A.2d 341 (1981).[15] A prima facie case of age discrimination is demonstrated where the plaintiff demonstrates that he or she (1) is a member of a protected class (i.e., at least 40 years of age); (2) was performing his job in a satisfactory manner; (3) was discharged despite being qualified; and (4) was ultimately replaced by a person sufficiently younger with equal or inferior qualifications.[16]Turner, 901 F.2d at 342; Maxfield, 766 F.2d at 791-92; E.E.O.C., 829 F.Supp. at 1449. "Establishment of the prima facie case gives rise to a [rebuttable] presumption that the employer unlawfully discriminated against the applicant." Goodman, 86 N.J. at 31, 429 A.2d 341 (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977)). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the employee's termination.[17]Turner, 901 F.2d at 342; E.E.O.C., 829 F.Supp. at 1449; Goodman, 86 N.J. at 31, 429 A.2d 341. Defendant's burden here is one of production, not persuasion, and therefore the defendant need only introduce evidence of "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Hicks, 509 U.S. at 507, 113 S. Ct. at 2747. If the defendant-employer meets its burden, neither the presumption nor the McDonnell Douglas framework are relevant, and "the burden shifts back to plaintiff to prove by a preponderance of the evidence that defendant's stated reasons were a pretext for discrimination, i.e., that the reasons were false and that discrimination (here, on the ground of age) was the real reason." E.E.O.C., 829 F.Supp. at 1449; Goodman, 86 N.J. at 32, 429 A.2d 341. Thus, in sum, it is important to note that although the McDonnell Douglas analysis initially shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Hicks, 509 U.S. at 507, 113 S. Ct. at 2747. In this case, Mr. Barone clearly can establish the first two elements of his prima facie case of age discrimination: that he is a member of a protected class (older than 40) and that Gardner Asphalt discharged him. However, Mr. Barone cannot prove the other two elements of his prima facie case: that he was performing his job at Gardner Asphalt satisfactorily and that he was replaced by someone younger with equal or inferior qualifications. There is substantial evidence in *345 the record regarding Mr. Barone's substandard performance at Gardner Asphalt. In addition, after Mr. Barone's termination, Mr. Bell, who was already Vice President of National Sales at Gardner Asphalt, assumed responsibility for sales in the northeast, i.e., Mr. Barone's job. Ultimately, the northeast region was merged with portions of the Midwest to form a new region. Eventually, the regional manager, who had been residing in Pittsburgh, took over this redefined area, which required new and different duties. Although Gardner Asphalt admits that this regional manager was 43 years old, and therefore younger than Mr. Barone, Gardner Asphalt believed that the new manager's skills and motivation were superior to those of Mr. Barone. However, assuming arguendo that Mr. Barone established a prima facie case of age discrimination, Gardner Asphalt has still introduced substantial evidence which, if believed by the trier of fact, would support a finding that Mr. Barone lost his job because of his substandard performance, including the decrease in business in the northeast region. Moreover, once Gardner Asphalt articulates a legitimate and nondiscriminatory reason for the termination, the burden shifts back to Mr. Barone not only to rebut Gardner Asphalt's evidence but also to adduce evidence which shows that discrimination was more likely than not to have been a motivating or determinative cause of his termination. See E.E.O.C., 829 F.Supp. at 1449; Goodman, 86 N.J. at 32, 429 A.2d 341. Mr. Barone has not met this burden. Indeed, during his deposition Mr. Barone admitted that, subsequent to his termination, he never told anyone that he believed he was discriminated against on account of his age and that no one had made any comments about his age during his employment at Gardner Asphalt. Mr. Barone's claim of age discrimination against defendant Gardner Asphalt is therefore dismissed. Bonus Claim Mr. Barone alleges that he is due a bonus in the amount of $7,200 based on his performance at Gardner Asphalt during their 1993-94 fiscal year. Gardner Asphalt claims that the reason it did not give Mr. Barone a bonus is that the bonus program was a discretionary program paid to employees who significantly contribute to an increase in the sales of Gardner Asphalt. However, Mr. Barone's evidence indicates that he may be entitled to a bonus from Gardner Asphalt for his sales efforts in the 1993-94 fiscal year. First, the Gardner Asphalt "Intercompany Memos" from David Robertson, dated January 19, 1994 and February 1, 1994 clearly indicate that the bonus program at Gardner Asphalt was not discretionary and indeed was nothing more than a straight mathematical calculation based on an individual's quota sales. See Barone Certif., Ex. 3 and Latoff Certif., Ex. P. In addition, the Certification from Richard Thurston, who was Mr. Barone's contact at Channel, provides evidence that Mr. Barone contributed to increased sales at Gardner Asphalt during their 1993-94 fiscal year. Specifically, Mr. Thurston states that "[b]ecause of Mr. Barone's efforts for Gardner Asphalt, which resulted in a annual sales increase of approximately 35% for 1993, Gardner Asphalt was recognized by Channel Home Centers as `vendor of the year.'" In sum, the Court will not dismiss Mr. Barone's bonus claim against Gardner Asphalt because on this issue Mr. Barone has presented evidence that creates a genuine issue as to a material fact. Vacation Claim Mr. Barone also claims that he was entitled to compensation for fifteen days of vacation that he never took in 1994. However, Gardner Asphalt provides evidence which demonstrates that Mr. Barone was entitled to thirteen days of vacation during 1994 and that Mr. Barone took all thirteen days. In addition, Mr. Barone admitted at his deposition that he took thirteen days of vacation in 1994. In sum, Mr. Barone fails to set forth any facts that create a genuine issue as to a material fact in support of his vacation claim. CONCLUSION Accordingly, for the reasons stated above, defendant Gardner Asphalt's motion for summary *346 judgment is hereby granted as to Counts One, Two and Four of the Complaint and denied as to Count Three of the Complaint. ORDER This matter having been opened to the Court by Hannoch Weisman, attorneys for Gardner Asphalt Corporation ("Gardner Asphalt"), and the Court having considered the submissions of the parties, and good cause appearing, IT IS on this 20th day of February, 1997, ORDERED that defendant Gardner Asphalt's motion for summary judgment, pursuant to Fed.R.Civ.P. 56(c), for an Order of dismissal of the Complaint is hereby granted as to Counts One, Two and Four of the Complaint and denied as to Count Three of the Complaint; IT IS FURTHER ORDERED that all parties shall appear before this Court for a pre-trial conference on March 4, 1997, at 10:30 a.m., in Courtroom 4C, United States District Court, Martin Luther King, Jr., Courthouse, Newark, New Jersey. NOTES [1] During the years 1981 through 1986, prior to accepting the position with Gardner Asphalt in 1986, Mr. Barone had worked for one of Gardner Asphalt's suppliers, Trumball Asphalt. [2] Gardner Asphalt's intent to hire Mr. Barone as an at-will employee is also clearly expressed in its Personnel Policy Manual. Under Policy 103:1 of this Manual, entitled "Employment At-Will," it states that it is "the policy of the company that all employees who do not have a written employment agreement are employed at the will of the company for an indefinite period. Employees may resign from the company after prior notice and may be terminated by the company at any time for any reason, and with or without cause." Latoff Certif., Ex. M. On November 11, 1987, Mr. Barone signed an "Acknowledgment", stating that he had received the Gardner Asphalt Personnel Policy Manual on that day. Latoff Certif., Ex. M. [3] In 1992, Gardner Asphalt filed a voluntary petition under Chapter 11 of the Bankruptcy Code. [4] The Channel account alone generated approximately $2 million in sales per year for Gardner Asphalt and accounted for 70% of the business in the northeast region. [5] Per Mr. Barone's request at the December 13, 1994 meeting, Mr. Bell changed both the December 31, 1994 dates to January 15, 1995. [6] Mr. Barone alleges that when Mr. Bell gave him the Memorandum he asked whether it had been approved by "Tampa" (the national office) and Mr. Bell responded that it had. Mr. Barone asks the Court to infer from this colloquy that Mr. Bell had intended the Memorandum to serve as some sort of employment extension or contract. [7] Gardner Asphalt hired Mr. Bell on approximately December 1, 1994. As a consequence, Mr. Bell had no familiarity with Mr. Barone's past performance at Gardner Asphalt. [8] It should also be noted that after Mr. Barone's termination, Mr. Bell, already Vice President of National Sales at Gardner Asphalt, assumed responsibility for sales in the northeast, i.e., Mr. Barone's job. Ultimately, management merged the northeast region with portions of the Midwest to form a new region. The regional manager residing in Pittsburgh, Pennsylvania began managing this redefined area, which included new and different duties. Although Gardner Asphalt admits that this regional manager was 43 years old, and therefore younger than Mr. Barone, Gardner Asphalt asserts that the new manager's skills and motivation were superior to those of Mr. Barone. [9] Gardner Asphalt instituted a new bonus program to run during the fiscal year, which ran from September 1, 1993 through August 1, 1994. [10] The Certification of Richard Thurston, sworn to in November 1996, is submitted "in support of Plaintiff's, John Barone, Defense of Summary Judgment." [11] Gardner Asphalt distributed to all its employees a memorandum, dated September 21, 1994, entitled "Vacation Pay Entitlement Upon Termination of an Employee", to clarify Gardner Asphalt's policy regarding payment of vacation pay upon an employee's termination. [12] Gardner Asphalt's home office is located in Tampa, Florida, but it has regional offices scattered around the country, including Kearney, New Jersey. Mr. Barone is a New Jersey resident who worked out of Gardner Asphalt's Kearney, New Jersey office. Before Gardner Asphalt removed this case to federal court, it was in the Superior Court of New Jersey. Accordingly, it is not disputed by the parties that New Jersey law should apply. [13] Because Gardner Asphalt provides the text of Policy 103:1 of the Manual as an isolated exhibit, it is unclear whether it constitutes a "clear and prominent disclaimer", see Witkowski, 136 N.J. at 392, 643 A.2d 546, thereby precluding a claim that the Manual creates a contract by implication. However, Mr. Barone does not raise the issue of the placement of the disclaimer in the Manual and therefore it is irrelevant for purposes of the wrongful discharge in this case. [14] New Jersey courts have interpreted the proofs and burdens of persuasion for discrimination under New Jersey's Law Against Discrimination ("LAD") and the Federal Age Discrimination Employment Act ("ADEA") 29 U.S.C. §§ 621-634, in the same manner as the Supreme Court did in McDonnell Douglas, in deciding a Title VII case. See Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 550, 569 A.2d 793 (1990) (LAD); Clowes v. Terminix International, Inc., 109 N.J. 575, 595, 538 A.2d 794 (1988) (LAD); see also Maxfield v. Sinclair International, Inc., 766 F.2d 788, 791 (3d Cir.1985) (ADEA), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986); E.E.O.C. v. MCI International, Inc., 829 F. Supp. 1438, 1449 (D.N.J.1993) (ADEA). Although plaintiff's Complaint in this case makes no reference to either LAD or ADEA, it is assumed by the Court that the instant age discrimination claim is premised on these laws. Accordingly, the Court will discuss the federal and state claims together. [15] If the plaintiff is able to point to direct evidence of discrimination, the McDonnell Douglas shifting burdens analysis is inapplicable. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 621-22, 83 L. Ed. 2d 523 (1985); Gavalik v. Continental Can Co., 812 F.2d 834, 853 (3d Cir.), cert. denied, 484 U.S. 979, 108 S. Ct. 495, 98 L. Ed. 2d 492 (1987); Maxfield, 766 F.2d at 791. The reason for this distinction "is that in most cases direct evidence of discriminatory intent is unavailable or difficult to acquire." E.E.O.C., 829 F.Supp. at 1449 (citing Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3rd Cir.1987)). [16] There is no "greater inference of age discrimination ... when a 40 year-old is replaced by a 39 year-old than when a 56 year-old is replaced by a 40 year-old." O'Connor, ___ U.S. at ___, 116 S.Ct. at 1310. Rather, the Court views "the fact that a replacement is substantially younger than the plaintiff [as] ... a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." Id. [17] In addition, it should be noted that it is well-settled pursuant to New Jersey state law that an employer is not required to retain non-performing employees; in short, LAD expressly provides that there is nothing which can "prevent termination or change of the employment of any person who in the opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of employment. N.J.S.A. 10:5-2.1. See also Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374, 541 A.2d 682 (1988).

2023-08-22 21:22:19.479891+00

Bell

BELL, Chief Judge. This case presents the issue of the propriety of the issuance of a writ of mandamus by the Circuit Court for Prince George’s County. That court issued the writ based on its conclusion that the Seat Pleasant City Board of Supervisors of Elections, one of the appellants,1 acted arbitrarily and capriciously when it admittedly denied a registered voter the right to vote in that city’s mayoral election, which was decided by a one vote margin, where the stipulation of the parties, in turn premised on the post-election declaration of that voter, was that she intended to vote for the candidate with the one vote deficit. We shall hold that the writ does not lie under the facts sub judice and, thus, reverse the judgment of the Circuit Court. The election for the offices of Mayor and members of the City Council of the City of Seat Pleasant was conducted by the City Board of Supervisors of Elections on September 11, 2000, between the hours of 7:00 a.m. and 8:00 p.m. There were three candidates for the office of Mayor: Eugene F. Kennedy, the incumbent Mayor; Thurman D. Jones, Jr., the appellee; and Eugene Grant. Brenda Brown Smith came to the polling place to vote at around 5:00 p.m. Although, at all times relevant to this case, Ms. Smith was registered to vote with the Prince George’s *668County Board of Elections (“PGC Board”) and resided in the City of Seat Pleasant, her name did not appear on the voter registration list or the voter authority cards that were provided to Seat Pleasant election officials by the PGC Board several days before the election. This occurred because Ms. Smith sent in her change of address form after the deadline for registration.2 In addition, no “extract” file was prepared for the Seat Pleasant 2000 election.3 An extract file is automatically created when an event, like the change of address in this case, occurs that could cause a voter’s name to be omitted from the registered voter database. Yvonne Sumner, the Chairperson of the Seat Pleasant Board of Supervisors of Elections, (“City Board”), attempted, unsuccessfully, to contact the PGC Board by telephone to determine whether Ms. Smith was registered to vote. Because the call was made after hours4 and, therefore, the PGC Board offices were closed for the day, she was unable to reach *669anyone who could provide assistance. Ms. Sumner had not made advance arrangements with the PGC Board to have someone stay after hours on election day to respond to these kinds of inquiries.5 When Ms. Sumner was unable to verify Ms. Smith’s voter registration, Ms. Smith was informed that she would not be allowed to vote. Thereafter, Smith left the polling place without casting a ballot. The City Board’s tally of the ballots after the polls closed revealed, as to the election for the office of Mayor, that Kennedy received 247 votes, Jones received 246 votes, and Grant received 191 votes. Thereafter, it certified the results of the election to the Clerk of the City and Mr. Kennedy was declared Mayor. Dissatisfied, the appellee, on September 13, wrote to Ms. Sumner, requesting a recount of the ballots for Mayor “because one of my supporters, Brenda Brown Smith, ... was denied the right to vote.... ” He attached to the letter Ms. Smith’s affidavit, which averred that she had been denied the right to vote and that she would have voted for the appellee had she been allowed to vote. Subsequently, on September 20, the appellee’s counsel wrote to the City Board. In that letter, the City Board was asked to hold a hearing, to make formal written findings as to the actual number of votes cast for the candidates for Mayor and that Ms. Smith was denied the right to vote for the appellee, as she stated was her intention, and to refuse to certify the result. Counsel also requested that the City Board “formally recommend to the City Counsel that a new election be held, in which event the [C]ity Council should either conduct a new election to fill the office of Mayor or seek a declaratory judgment from the Circuit Court for Prince George’s County upon the facts as found by the Board.” There is an allegation that the City *670Board was to hold a hearing on September 25, the same evening as the Seat Pleasant City Council met, prompting a letter from the appellee’s counsel to the City Board, with a copy to the City Council, indicating his inability to attend and requesting that the hearing be put off until he and his client and all other interested parties and their counsel could attend. At the September 25 special meeting, where the City Board reported the results of the September 11 election and the appellee’s challenge to the voting tally for the mayoral election was considered, the Seat Pleasant City Council determined that the appellee would have to pursue his challenge through judicial action.6 The appellee thereafter filed in the Circuit Court a two count Verified Petition for Declaratory Relief, Temporary Restraining Order, and Permanent Injunction.7 In Count I, he sought a judgment declaring, consistent with the allegations,8 that the City Board failed to allow Ms. Smith, a duly *671registered and qualified voter, to vote in the City’s September 11, 2000 election, resulting in a clear, significant irregularity in election procedure that would have changed the outcome of the election because there would have been a tie between Mr. Kennedy and the appellee for the highest number of votes. The appellee requested alternative relief-a run-off election or a new special election and that, pursuant to the Seat Pleasant Charter, the City must hold a run-off election between Kennedy and Jones or, alternatively, conduct a new special election. In Count II, the appellee requested a temporary injunction precluding the City from swearing in Kennedy and, following a hearing on the merits, a permanent injunction requiring the City to conduct a run-off election between the appellee and Mr. Kennedy or, alternatively, to hold a new special election for Mayor. Following a hearing on the appellee’s request for a temporary restraining order, the court granted the request and immediately and temporarily enjoined the City from swearing in Mr. Kennedy as Mayor for a new term and further ordering that, as the incumbent, he remain as Mayor of Seat Pleasant pending the outcome of the proceedings. A hearing on the merits was subsequently held, at which evidence was taken and the parties presented their arguments. The Circuit Court found that the City of Seat Pleasant “wrongfully infringed upon Ms. Smith’s fundamental right to vote.” Relying on Fowler v. Board of Supervisors of Elections for Prince George’s County, 259 Md. 615, 270 A.2d 660 (1970), it was persuaded that the result of the collective errors of the City and County Boards, and their failure to act with more deliberation than usual on election day, was the wrongful deprivation of her right to vote. More specifically, it faulted the City Board’s failure to prevent the situation involving Ms. *672Smith, citing, in particular, Ms. Sumner’s statement at the court hearing that “she did not follow the proper procedure in order to guarantee that someone from the County Board would be available after hours to assist her with voter registration inquiries” and the fact that Ms. Sumner, in any event, made only one attempt to call the County Board. As to the County Board, the court noted that it supplied the City Board with an incomplete list of voters, “failing] the City Board” by not providing it with the “extract” file, which was a safeguard “to ensure that the polls would receive documentation for every registered voter.” Concluding further that the City and County “irregularities” affected the fairness of the election-the court found ample evidence that, if she had been permitted to do so, Ms. Smith’s vote would have resulted in a tie between the incumbent Mayor and the appellee and thus materially changed the election’s outcome — and that their conduct was arbitrary and capricious, the court issued a writ of mandamus ordering that the City allow Smith to vote and, if a tie ensued, that a run-off election be conducted in accordance with the City Charter. The appellants noted an appeal to the Court of Special Appeals. Subsequently, before any proceedings in the intermediate appellate court, both sides filed petitions for writ of certiorari. We granted the appellants’ petition and denied the appellee’s. Before we granted certiorari, the Circuit Court, on the appellants’ motion, stayed enforcement of its Opinion and Order pending the completion and outcome of appellate proceedings, and also extended its earlier Order that Mr. Kennedy continue to serve as Mayor of Seat Pleasant pending the completion and outcome of appellate proceedings. II. In George’s Creek Coal & Iron Co. v. Allegany County Comm’rs, 59 Md. 255, 259 (1883), this Court observed, with regard to the writ of mandamus: “Its office, as generally used, is to compel corporations, inferior tribunals, or public officers to perform their func*673tions, or some particular duty imposed upon them, which in its nature is imperative, and to the performance of which the party applying for writ has a clear legal right. The process is extraordinary, and if the right be doubtful, or the duty discretionary, or of a nature to require the exercise of judgment, or if there be any ordinary adequate legal remedy to which the party applying could have recourse, this writ will not be granted. The application for the writ being made to the sound judicial discretion of the court, all the circumstances of the case must be considered in determining whether the writ should be allowed or not; and it will not be allowed unless the court is satisfied that it is necessary to secure the ends of justice, or to subserve some just or useful purpose.” Subsequently, we said in Lamb v. Hammond, 308 Md. 286, 292, 518 A.2d 1057, 1060 (1987), quoting from Hammond v. Love, 187 Md. 138, 144, 49 A.2d 75, 77 (1946): “In Hecht v. Crook, 184 Md. [271], [280-81], 40 A.2d [673], 677 [1945] this Court, by Judge Henderson, said: ‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious, or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred.’ ” Most recently, in Goodwich v. Nolan, 343 Md. 130, 144, 680 A.2d 1040, 1047 (1996), this Court reviewed the history of the common law writ of mandamus. We stated: “ ‘Mandamus is an original action, as distinguished from an appeal.’ 2 Am.Jur.2d Mandamus § 4 (1970) (footnote omitted). It is ‘not a substitute for appeal or writ of error.’ In re Petition for Prohibition, 312 Md. 280, 306, 539 A.2d 664, 676 (1988). It is, however, ‘an extraordinary remedyt,]’ Ipes v. Board of Fire Commissioners of Baltimore, 224 Md. 180, 183, 167 A.2d 337, 339 (1961), ‘that .. . will not lie if [there is] any other adequate and convenient remedy[.]’ A.S. Abell *674Co. v. Sweeney, 274 Md. 715, 718, 337 A.2d 77, 79 (1975) (quoting Applestein v. Baltimore, 156 Md. 40, 45, 143 A. 666, 668 (1928)). Mandamus is generally used ‘to compel inferior tribunals, public officials or administrative agencies to perform their function or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party ^applying for the writ has a clear legal right.’ Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514, 331 A.2d 55, 72 (1975); see also George’s Creek Coal & Iron Co. v. County Commissioners, 59 Md. 255, 259 (1883). The writ ordinarily does not lie where the action to be reviewed is discretionary or depends on personal judgment. Board of Education of Prince George’s County v. Secretary of Personnel, 317 Md. 34, 46, 562 A.2d 700, 706 (1989); In re Petition, supra, 312 Md. at 305-06, 539 A.2d at 676; see also Tabler v. Medical Mutual Liability Insurance Society, 301 Md. 189, 202 n. 7, 482 A.2d 873, 880 n. 7 (1984); Bovey v. Executive Director, HCAO, 292 Md. 640, 646, 441 A.2d 333, 337 (1982); Maryland Action for Foster Children v. State, 279 Md. 133, 138-39, 367 A.2d 491, 494 (1977).” We further explained: “This Court has stated that judicial review is properly sought through a writ of mandamus ‘where there [is] no statutory provision for hearing or review and where public officials [are] alleged to have abused the discretionary powers reposed in them.’ State Department of Health v. Walker, 238 Md. 512, 522-23, 209 A.2d 555, 561 (1965). See also State Department of Assessments and Taxation v. Clark, 281 Md. 385, 399, 380 A.2d 28, 36-37 (1977); Gould,[ ], 273 Md. at 502, 331 A.2d at 65; State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 300, 236 A.2d 282, 286 (1967); Heaps v. Cobb, 185 Md. 372, 380, 45 A.2d 73, 76 (1945). Thus, prior to granting a writ of mandamus to review discretionary acts, there must be both a lack of an available procedure for obtaining review and an *675allegation that the action complained of is illegal, arbitrary, capricious or unreasonable.” Id. at 146, 680 A.2d at 1048. The writ of mandamus has been utilized in cases involving a variety of election challenges. See, e.g., Gisriel v. Ocean City Board of Supervisors of Elections, 345 Md. 477, 693 A.2d 757 (1997); Roberts v. Lakin, 340 Md. 147, 665 A.2d 1024 (1995); Lamb v. Hammond, 308 Md. 286, 518 A.2d 1057 (1987); Duffy v. Conaway, 295 Md. 242, 455 A.2d 955 (1983); McNulty v. Board of Supervisors of Elections of Anne Arundel County, 245 Md. 1, 224 A.2d 844 (1966); Mahoney v. Board of Supervisors of Elections of Queen Anne’s County, 205 Md. 325, 108 A.2d 143 (1954); Moore v. Bay, 149 Md. 286, 131 A. 459 (1925).9 Moreover, in this State, the action of Election Supervisors, in counting or rejecting ballots, is not subject to review by mandamus in the absence of conduct that is fraudulent, arbitrary or in violation of law. See Mahoney, supra, 205 Md. at 336, 108 A.2d at 147-48; McNulty, supra, 245 Md. at 8, 224 A.2d at 848; Love, 187 Md. at 146, 49 A.2d at 78 (1946); Roe v. Wier, 181 Md. 26, 28 A.2d 471 (1942); Fitzgerald v. Quinn, 159 Md. 543, 151 A. 660 (1930); White v. Laird, 127 Md. 120, 96 A. 318 (1915). On the other hand, “where a Board of Election Supervisors has made an obvious mistake of law in counting or rejecting ballots, the court has the power to correct such mistake.” Mahoney, 205 Md. at 336, 108 A.2d at 148. Stated differently, “a clear mistake of law, however honest, is an ‘arbitrary’ action, reviewable on mandamus [and] illegal action is reviewable, as such, without characterizing it as ‘arbitrary.’ ” Hammond v. Love, 187 Md. at 145, 49 A.2d at 78. In Mahoney, the petitioner alleged that ballots containing ambiguous marks were improperly counted in a primary elec*676tion for the Democratic nomination for governor. Upholding the challenge, we held that “the provision for the rejection of any ballot on which there is any mark ‘other than the cross-mark in a square opposite the name of a candidate’ is mandatory.” 205 Md. at 337, 108 A.2d at 148. Similarly, in Hammond v. Love, we held that the writ should be issued where the Election Supervisors of Baltimore County, in direct contravention of a provision of the Election Law requiring judges of election to reject any ballot which is not signed or initialed by the judge who held the ballot, had admittedly counted a number of ballots which did not contain the signature or initials of a judge of election. 187 Md. at 146, 49 A.2d at 78. The Court explained the reason for that result, even when there was no finding or evidence of any fraud on the part of the election officials, either to disenfranchise the voters or for any other purpose, id. at 142, 49 A.2d at 76: “It is unfortunate that voters should lose their votes by oversight of election officials — and by their own failure to notice that they have not been given authenticated ballots. But, as has often been said, it would be a greater evil for the courts to ignore the law itself by permitting election officials to ignore statutory requirements designed to safeguard the integrity of elections, i.e., the rights of all the voters. It is common knowledge, evident on the face of the election laws, that in Maryland, as elsewhere, for upwards of fifty years, the peremptory requirement of initialing ballots has been deemed by the Legislature an important safeguard in order to authenticate ballots by a definite rule which leaves little or no discretion to election officials. If this long-established safeguard has become unnecessary, it is not for this Court to change or abolish it.” Id. at 149, 49 A.2d at 80. A different result obtains when there is conduct by election officials that might amount to negligence and is certainly “administrative error,” so long as the conduct does not violate the law or amount to fraud or arbitrary conduct. See McNulty, 245 Md. at 9, 224 A.2d at 848. There, one of the losing candidates in the democratic primary election for State Senate *677from a district in Anne Arundel County sought, by mandamus, to have the County Election Board award to him 136 votes cast in the blank space below his name, arguing that they were cast on the “bottom line” for democratic voters and his campaign slogan was “vote the bottom line,” his being the last name on the democratic ballot. Id. at 7, 224 A.2d at 847. The voters were unable to cast votes on that line because election officials failed, on 39 of 49 machines, to cover, and thus lock, the blank spaces, which in turn was due to a shortage of covers, of which the Board was unaware until after the election. Acknowledging “[t]hat the Board made an administrative error, in not seeing to it that there were sufficient metal covers to lock all of the levers over all blank spaces on the voting machines under their supervision”, id. at 9, 224 A.2d at 848, and regretting the position the Board’s negligence placed the petitioner in, id. at 13, 224 A.2d at 851, but noting the absence of “any hint of fraud or chicanery attributable to any of the parties,” the Court held that mandamus did not lie and, hence, the trial court did not err in refusing to issue the writ. To like effect is Fowler v. Board of Supervisors of Elections, 259 Md. 615, 270 A.2d 660 (1970), in which the issue also was “whether or not eligible voters who sought to cast a ... vote were deprived of votes and whether or not, had they voted, this vote would have changed the outcome of the election.” Id. at 618-19, 270 A.2d at 662. There, the evidence established that: “(a) some voting machines had not been properly ‘zeroed’ before the first vote was cast; (b) some machines had not been correctly programmed so that Republican candidates in one sub-district were listed on machines placed in another sub-district (in the afternoon the errors were corrected and the polls in the affected places stayed open to Republican voters for an additional two hours, until 10:00 p.m., and this fact was frequently and widely announced on television and radio); (c) some machines had levers that were locked; (d) a number of service men from the headquarters of the voting machine company were flown to the County on the day of *678the election to repair and adjust machines and this caused delay; (e) the official records and reports of these repairmen were informally made and not in strict conformity with the directives of the statutes; (f) unauthorized persons repaired and adjusted the machines; (g) levers were operative at some blank spaces; and (h) security was not as tight as it should have been at the warehouse where the machines were taken after the election.” Id. at 617, 270 A.2d at 661. The trial court found facts, with which this Court concurred, as follows: “[Tjhese irregularities occurred during the primary election and ... they had passed the point of being minor, and, although that is a relative term, you could very well say that some irregularities were extremely serious and of major proportions.” “There was no evidence whatever adduced or proffered in this case that there was any improper or illegal attempt either to add to or reduce the proper vote of any particular candidate — in other words, the kind of fraud which would result in some one or more people causing the candidate who should have been elected to be rejected and some other candidate elected instead. That is not alleged here, nor is there any proof whatever of that. Further, there is no evidence of any specific individual who was not permitted to vote. There is some evidence that people who sought to vote were not able to, there is some evidence that some of those people did not return and there is evidence that some said they were not going to return but there is no evidence whether they did or did not return. But we have no evidence in the case of any person by name who sought to vote and was not permitted and did not vote that day.” Id. at 618, 270 A.2d at 661. See Roe v. Wier, 181 Md. at 30, 28 A.2d at 473 (mandamus does not lie to review decision of the *679Supervisors of Elections10 to count ballots that election judge initialed as required, but with an indelible pencil, rather than in ink as the statute provided); White v. Laird, 127 Md. at 125, 96 A. at 320 (same, except the initial by indelible pencil, rather than black lead pencil); Fitzgerald v. Quinn, 159 Md. at 547, 151 A. at 662, (where, in a case of alleged improperly initialed ballots, fraud, or mere arbitrary action by the Board of Supervisors, is not shown on the face of the papers, and there is no failure of the Supervisors to function and to render the decision which the Statute calls for, the court has no right to review, and no power to issue a writ of mandamus). Lamb v. Hammond, 308 Md. 286, 518 A.2d 1057 (1987), is also instructive. In that case, the issue concerned whether 12 absentee ballots should have been counted, as the Circuit Court had ordered. Id. at 289, 518 A.2d at 1058. Nine of them were mailed from within the United States, and, so, were governed by Md.Code (1957, 1983 Repl.Vol., 1985 Cum. Supp.) Art. 33 § 27-9(c)(1), which regards as timely an absentee ballot that: “(i) ... has been received by the board prior to the closing of the polls on election day; or “(n) “1. ... was mailed before election day; “2. The United State[s] Postal Service, ... or the postal service of any other country, has provided verification of *680that fact by affixing a mark so indicating on the covering envelope; and “3. The board receives the ballot from the United States Postal Service not later than 4 p.m. on the Wednesday following election day.” Id. at 305, 518 A.2d at 1066. Because the ballots in question were not received prior to the closing of the polls on election day, but were received prior to the deadline set forth in subsection (c)(1)(ii)3, to be timely, they had to satisfy the requirements of subsection (c)(1)(ii), i.e., they must have been mailed prior to election day, a fact that the postmark did not support. Id. at 306, 518 A.2d at 1067. Consequently, the Board rejected the ballots. Id. at 305-06, 518 A.2d at 1066-67. The written instructions given to the absentee voters stated, in two places, that “[a] ballot received by mail will be considered timely until 4 P.M. on the Wednesday following election day, provided it bears a postmark verifying it was mailed before election day or the signed affidavit of the voter indicates that it was marked and mailed before election day,” and, so, “were at best ambiguous and at worst actually misleading.” Id. The timeliness of the three ballots mailed from outside the United States was controlled by § 27-9(d) and (e). Id. at 307, 518 A.2d at 1067. Such a ballot was received timely if it “was mailed before election day,” subsection (d)(1)(ii)1, “received by the board from the United States Postal Service not later than 4 p.m. on the second Friday following the election day,” subsection (d)(1)(i), and the postmark of the United States Postal Service, or the postal service of any other country, provided verification of the fact that it was mailed before election day. Subsection (d)(1)(ii)2. If the postal service of the country from which the ballot was mailed did not provide a postmark on the ballot, then the voter’s affidavit that the ballot was completed and mailed before election day was sufficient. Subsection (e). All three ballots were postmarked the date of the election, prompting the Board to reject them for failure of the required verification. 308 Md. at 307-08, 518 A.2d at 1067-68. As in the case of the domestic absentee *681ballots, the instructions provided by the Election Board stated in two places: “A ballot received by mail will be considered timely until 4 P.M. on the Wednesday following election day, provided it bears a postmark verifying it was mailed before election day or the signed affidavit of the voter indicates that it was marked and mailed before election day. For a ballot received from an overseas location in a general election, the extended deadline for timeliness is the second Friday after election, provided it bears verification that it was marked and mailed before election day.” Id. at 308, 518 A.2d at 1068. Conceding technical noncompliance by the absentee ballots with the statutory requirements, the appellee in Lamb v. Hammond offered two arguments11 in justification of the court’s judgment, one of which, “that a voter should not be disenfranchised for technical noncompliance with the statutory requirement where he or she follows the instructions of the election officials,” id. at 309, 518 A.2d at 1068, we found “more troubling,” for some [sjtates have found it appealing. Id. at 310, 518 A.2d at 1069, citing In re Recount of Ballots Cast In General Election, 457 Pa. 279, 325 A.2d 303 (1974); In re Contest of 1979 General Election, Etc., 489 Pa. 404, 414 A.2d 310 (1980); Hawkins v. Persons, 484 So.2d 1072 (Ala.1986). Recognizing, however, the duality of the issue presented by that argument, “(1) can election officials effectively change the law by giving erroneous, ambiguous, or misleading instruc*682tions to the voters, and (2) can a court command a board of canvassers to credit the improper instructions rather than the law?,” we rejected it, referring in the process to Hammond v. Love, 187 Md. at 149, 49 A.2d at 80, and its acknowledgment that innocent voters may be adversely impacted, and without recourse, by the actions and conduct of election officials. Id. at 311, 518 A.2d at 1069. Article IV, captioned “Registration, Nomination and Elections,” and comprising §§ C-601-C-620 of the Seat Pleasant Charter, governs Seat Pleasant municipal elections. It provides for the holding of regular elections, § C-601, and it prescribes the qualifications to vote in municipal elections. Section C-602 of the Seat Pleasant Charter provides: “Every person who (1) is a citizen of the United States, (2) is at least eighteen (18) years of age, (3) has been a resident of the City of Seat Pleasant for at least thirty (30) days prior to the election and (4) is registered in accordance with the provisions of this Charter and City Ordinances, shall be a qualified voter of the City shall be entitled to vote at any or all City elections.” The Charter also provides for a Board of Supervisors of Elections, § C-603, and § C-605 prescribes that it is “in charge of the registration of voters, nominations, and all City elections.... ” Section C-607 addresses registration. In addition to reiterating that “[n]o person is entitled to vote in City elections unless he is registered,” it provides for Universal Voter Registration in conjunction with Prince George’s County, pursuant to Md.Code (1957, 1986 Repl.Vol., 1989 Cum. Supp.) Article 33, § 3-212 and requires the City Board to *683“keep the registration lists up-to-date by striking from the lists persons known to have died or moved out of the City.” Section C-616 sets forth the procedure for the City Board to count the vote. It states: “The Board of Supervisors of Elections shall begin counting the votes immediately after the polls have closed. All votes shall be counted to include the regular ballot and the absentee ballots. Once the actual vote counting begins, no persons shall enter or leave the room in which the vote count is being conducted until completion of the vote count. The Board of Supervisors of Elections shall complete the vote count within twenty-four hours after the polls have closed, shall determine the number of votes cast for each candidate and shall certify this result to the Clerk of City who shall record the result in the minutes of the Council. The candidate for Mayor with the highest number of votes shall be declared elected as Mayor. The candidates for election to the vacancies as Council members with the highest number of votes shall be declared elected. The declarations shall be proclaimed by the Chairman of the Board of Supervisors of Elections within forty-eight hours after the vote count at a special public meeting. A tie vote shall be decided by special election between the tied candidates.” Explaining its issuance of the writ of mandamus, the Circuit Court said: “We find that mandamus is an appropriate avenue for relief in this case because the City Board acted arbitrarily and capriciously in the manner that they dealt with Ms. Smith. It is evident that the City Board acted arbitrarily and *684capriciously when it prohibited Ms. Smith from voting. Moreover, as [the appellee] argued, the City Board was arbitrary and capricious in certifying the election results knowing full well that they had turned a qualified voter away in an election decided by a one vote margin.” Earlier, as we have seen, the Circuit Court found that the City of Seat Pleasant “wrongfully infringed upon Ms. Smith’s fundamental right to vote.” Nevertheless, its articulation of the basis for that finding revealed that, in fact, it believed that the violation of Ms. Smith’s right to vote was the result of the collective errors of the City and County Boards. The City Board’s failing was that it did not prevent the situation involving Ms. Smith either because, under the circumstances, it did not make sufficient efforts to contact the County Board or because it did not follow the proper procedure that would have guaranteed that someone from the County Board would have been available on municipal election day after the County Board’s normal business hours. The County Board’s contribution was in supplying the City Board with an incomplete documentation from which the proper list of voters could have been determined. Because, to be qualified to vote in the Seat Pleasant municipal elections, a person must be a registered voter, Seat Pleasant Charter §§ C-602 and C-607, it was neither arbitrary nor capricious for the City Board, based upon the information available to it at the time, to refuse to allow Ms. Smith to vote. Her name was not included on the voter registration list provided by the County Board, which also did not provide City election officials with a voter authority card for Ms. Smith. In short, City election officials did not have proof on election day that Ms. Smith was registered to vote. Acting in accordance with the dictates of the Charter can hardly be deemed to be arbitrary and capricious. Moreover, the City Board had no discretionary authority to overlook the absence of proof of a person’s registration and allow that person to vote. Had they done so, surely, the City election officials would have acted arbitrarily and capriciously. *685Whether, as the Circuit Court suggested, there should have been provision made for a contingent vote, when the registration of a person is contested and there is no verification, the fact is that the Charter does not provide for such a contingency. Nor are the reasons that the City Board was unable to verify the registration status of Ms. Smith a basis for the relief granted. As indicated, there is no allegation that the City Board acted fraudulently; as in Fowler, 259 Md. at 617, 270 A.2d at 661, there is neither an allegation nor evidence that the Board made any improper or illegal attempt to increase or to reduce the vote of any of the mayoral candidates. In any event, they do not provide proof that the City Board acted arbitrarily and capriciously. Failing to make arrangements to have a County Board employee available after hours to verify registration statuses of potential voters and making only one phone call in an attempt to verify Ms. Smith’s registration may have been, as in McNulty, an administrative error, 245 Md. at 9, 224 A.2d at 848, or even negligence, 245 Md. at 13, 224 A.2d at 851, but such conduct is not arbitrary and capricious conduct justifying the issuance of the writ of mandamus. And it does not rise to the level of the affirmative, misleading conduct of the election officials that caused the court in Lamb v. Hammond to err. See 308 Md. at 312, 518 A.2d at 1070. The Circuit Court’s finding of arbitrariness and capriciousness in the City Board’s certification of the mayoral result meets no kinder fate. Section C-616 requires the City Board to begin the vote count — counting both the regular and absentee ballots — immediately after the polls close and to continue the count until completed, which is mandated to be within 24 hours of the polls’ closing. Having thus determined the number of votes cast for each candidate, § C-616 instructs that the City Board is to certify the results to the Clerk of the City.13 By counting the votes actually cast, by determining the *686number of votes each candidate received and by certifying the result to the Clerk of the City, the City fully complied with the requirements of § C-616. That section contains no provision investing the City Board with judicial power and, thus, empowering it “to correct the errors and mistakes that may have occurred with any officer who preceded [it] in the performance of any duty connected with the election, or to pass upon any disputed fact which may affect the result.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, Vol.2, 1405 (8th Ed.1927). As the appellants point out: “The Board’s duty, as a canvassing board, ‘is purely ministerial and extends only to the casting up of the votes and awarding the certificate to the person having the highest number; [it] has no judicial power.’ ” (Quoting George W. McCrary, Treatise on the American Law of Elections 198 (4th Ed. 1897), § 261). Even if § C-616 could be read to give the City Board power to resolve ambiguity, at most it would be to determine the intention of the voters who voted and as to whose votes there was an ambiguity; it simply cannot be read to allow the Board to determine the intention of a person who did not vote, even one who did not do so due to an administrative error. The Circuit Court relied on Fowler and McNulty in reaching its decision. In Fowler, this Court did state that “the decisive question was ‘whether or not eligible voters who sought to cast a vote ... were deprived of votes and whether or not, had they voted, this vote would have changed the outcome of the election.” 259 Md. at 618-19, 270 A.2d at 662. The comment must be considered in context — it was made in a case where the effect of numerous irregularities, some quite *687serious, was considered, but where there was neither evidence nor allegation of fraud or any attempt to affect the vote of any candidate and in which the election challenge was dismissed. Thus, the comment was dictum. More important, that case is in no way comparable to the case sub judice or even instructive. Rather than a person whose eligibility to vote could not be determined, due admittedly to an administrative error, in Fowler, the Court was concerned about voters, whose qualifications were not at issue, but who might have been denied the right to vote because of the numerous irregularities. In McNulty, this Court did comment that “whenever an ambiguity arises with regard to election results, every effort should be made to ascertain the intention of voters and this is the initial duty of the Board.” 245 Md. at 8, 224 A.2d at 848. There, aside from the fact that we dismissed the election challenge, concluding that it was insufficient in the absence of a showing of fraud, we were referring to voters who had actually voted and not, as here, to a person who was not allowed to vote because, in accordance with the applicable law, her registration could not be verified. JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE APPELLEE’S ACTION. COSTS TO BE PAID BY THE APPELLEE. . The other appellant is the City of Seat Pleasant. In his Verified Petition for Declaratory Relief, Temporary Restraining Order, and Permanent Injunction, the appellee named also Eugene F. Kennedy, the incumbent Mayor, and Eugene Grant as defendants. . According to Robin Downs, acting Administrator of the PGC Board, Ms. Smith's name did not appear on the Seat Pleasant election day voter registration list or voter authority cards because the PGC Board had processed a change of address for her within 30 days of the election. Notwithstanding that Ms. Smith’s old and new addresses both were located in Seat Pleasant, Ms. Downs testified that this caused the computer program that the PGC Board used to process the voter registration list and voter authority cards for the September 11 Seat Pleasant election to fail to recognize that Ms. Smith resided in Seat Pleasant on the registration cut-off date, which was 30 days before the election. Thus, Ms. Smith's name was omitted from the voter registration list and the voter authority cards that were printed by the PGC Board for the Seat Pleasant election. The Circuit Court concluded that the omission of Ms. Smith's name from the voters’ list was "[d]ue to an alleged computer error.” . Ms. Downs testified that when an election day voter registration list is printed, a printout of an "extract” file also should be generated. An entry is automatically made to this extract file when an event occurs, such as a change of address, which may cause a voter’s name to be omitted from the voter registration list. According to Downs, the PGC Board usually provides a municipality with the extract file printout along with the Election Day voter registration list, but did not prepare one for the Seat Pleasant 2000 election. . The regular business hours of the Prince George's County Board of Elections are 8:00 a.m. to 4:00 p.m., Monday through Friday. . Ms. Sumner testified that, having been instructed by the PGC Board to do so after normal office hours, when the office is closed, she called the direct telephone number of the PGC Board staff person with whom she usually dealt to obtain voter registration information. She also testified that, although not aware that she had to make a written request to the PGC Board to have a staff person working in the evening on the municipal election day, she did make an oral request to that effect shortly before the PGC Board’s regular closing time. . Section C-608 of the Seat Pleasant City Charter provides: "If any person is aggrieved by the action of the Board of Supervisors of Elections in refusing to register or in striking off the name of any person, or by any other action, he may appeal to the Council. Any decision or action of the Council upon such appeals may be appealed to the Circuit Court for the County within the time allowed for such appeals.” The parties agree that the proceedings to this point were pursuant to this provision of the Charter. . In its Opinion and Order of the Court, the Circuit Court noted that, in a Memorandum of Law, the appellee also requested mandamus relief. It is well settled, in any event, that this Court looks to the substance of an action, rather than how it is characterized. See Gisriel v. Ocean City Bd. of Sup'rs of Elections, 345 Md. 477, 496, 693 A.2d 757, 766-67 (1997). Thus, we have held, "even where a particular action against an administrative agency was allegedly brought under a statutory judicial review provision, and did not purport to be a mandamus action, this Court has looked to the substance of the action, has held that it could be treated as a common law mandamus or certiorari action, and has exercised appellate jurisdiction.” Id. at 500, 693 A.2d at 768, citing Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500-06, 331 A.2d 55, 64-68 (1975). . In addition to alleging "a clear and significant irregularity prohibiting BOSE’s [the. City Board’s] certification of the election results given the *671fact that Smith’s vote would have changed the outcome of the Election resulting in a run-off election between mayoral candidates, Petitioner and Kennedy” and asking the court to so find, the appellee also alleged in Count I that "[t]he actions and/or omissions of the City and BOSE were arbitrary, capricious, illegal and undertaken without any rational basis.” . Because the propriety of the issuance of the writ of mandamus is dispositive of this case, we need not, and, therefore, will not, address the relevance, or sufficiency, of the evidence as to how Ms. Smith intended to vote. . The prevailing statute in Roe v. Wier, 181 Md. 26, 30, 28 A.2d 471, 473 (1942), Md.Code (1957, 1966 Supp.) Art. 33 § 255, applicable to appeals to the Wicomico Board of Supervisors for a recount, and review of the actions of the judges of election, empowered the County Board of Supervisors “to hear and determine ... to review and correct the action of the Judges of Election in their respective jurisdictions and to recanvass, recount and certify said result of said primary election. And for all other purposes of said review, recount, recanvass ..., the said Supervisors of Elections shall act and be judges of election for counting said ballots acting as such in the premises within their respective geographical jurisdictions.... The said supervisors to pass upon and decide whether any ballot contested by the teller for either side shall be rejected or counted.” . Mr. Hammond's first argument was that the postmark requirement was merely directive, only the receipt element being mandatory. The Court rejected that argument, reasoning: "The Legislature has accorded absentee voters a special privilege not shared by other voters — the privilege of having their vote count even though received by the election officials after the polls have closed. Unqualified, or qualified only by a deadline on receipt of the ballot, that privilege could become a distinctly unfair political advantage; it would allow a group of voters actually to cast their ballots after the polls had closed, and thus open the way for some very unwholesome machinations.” Lamb v. Hammond, 308 Md. 286, 309-310, 518 A.2d 1057, 1068-69 (1987). . Pursuant to Md.Code (1957, 1997 Repl.Vol., 2000 Supp.) Art. 33, § 3-403, previously codified as § 3-2, "[a] voter residing in a municipal corporation is deemed to be registered for elections in that municipal coiporation if the voter is registered with the local board for the county in which the municipal corporation is located.” It then provides for the implementation of this universal registration, requiring the municipal corporation to submit to the appropriate local board a request for the development of a plan and schedule for implementation and a liaison, § (b), the designation by the local board of its liaison, § (c), and meetings for the purpose of developing a schedule and a plan. Section *683(d). Section (e) prescribes the contents of the plan. Once the plan is agreed upon and implemented, § (f)(1) mandates that “[t]he local board ... provide to a municipal corporation at no cost a certified list of registered voters residing within the boundaries of the municipal corporation in compliance with the plan....” The parties make no contentions concerning the plan in effect between Seat Pleasant and Prince George’s County. Nor is there a dispute with regard to its being the County’s responsibility to provide the City Board with the registered voters’ lists. . Section C-616 specifically provides: “The declarations shall be proclaimed by the Chairman of the Board of Supervisors of Elections *686within forty-eight hours after the vote count at a special public meeting.” It appears that by reporting the results on September 25, the Board may not have complied with this aspect of its duty. No issue is made of this fact, however. The court's finding was premised on the City Board's certification of the result, having been apprised, by then, of the fact that Ms. Smith was, when she presented at the polls, eligible to vote.

2023-08-22 21:22:19.487172+00

Wilner

WILNER, Judge, dissenting. The Court today holds that it is permissible for election officials to deny a properly registered voter the right to vote so long as they do so negligently and not fraudulently or arbitrarily. With respect, I dissent from that conclusion. There is no need in this dissent to write a political treatise on the importance of the right to vote. I am sure that my colleagues agree with me that it is the fundamental underpinning of our democratic and republican form of government and must be zealously protected. It was not protected in this case. Brenda Smith, a properly registered voter was denied her *688right to vote in the election for mayor and members of the city council of Seat Pleasant, Maryland.1 She did all that she could do to exercise that right, and it was only through the inexcusable negligence of city and county election officials that she was not permitted to cast her ballot. Had Mr. Kennedy, the declared winner in the mayoral race, won by more than one vote, I would agree that no judicial action would be appropriate, for Ms. Smith’s vote would not have changed the result of the election. Here, however, Ms. Smith’s vote may well have changed the result of the election; if her uncontested affidavit is accepted, it would have changed the result and forced a run-off election. The Court accepts that mandamus lies to compel public officers “to perform their functions, or some particular duty imposed upon them, which in its nature is imperative, and to the performance of which the party applying for the writ has a clear legal right,” at least in the absence of “any ordinary adequate legal remedy to which the party applying could have recourse,” if “the court is satisfied that it is necessary to secure the ends of justice, or to subserve some just or useful purpose.” Opinion at 672-73 (quoting from George’s Creek Coal & Iron Co. v. County Comm’rs of Allegany Co., 59 Md. 255, 259 (1883) and from Goodwich v. Nolan, 343 Md. 130, 680 A.2d 1040 (1996)). It follows, however, the precepts, also included in the language from earlier cases, that mandamus ordinarily does not lie when the action to be reviewed “is discretionary or depends on personal judgment,” Goodwich, supra, 343 Md. at 145, 680 A.2d at 1047, at least in the absence of “an allegation that the action complained of was illegal, arbitrary, capricious, or unreasonable,” id. at 146, 680 A.2d at 1048, and that the action of election officials “in counting or rejecting ballots, is not subject to review by mandamus in the *689absence of conduct that is fraudulent, arbitrary or in violation of law.” Ante at 675. There is a dual problem with that approach, as applied in this case. First, the action complained of here was not one that involved discretion or personal judgment. Election officials do not have discretion to deny a properly registered voter the right to vote. That is not a matter of “personal judgment.” Second, this was not a matter of counting or rejecting a ballot, which was the issue in the cases relied upon by the court. Here, there was no ballot to be counted or rejected, because Ms. Smith was not allowed to cast one. McNulty v. Board of Elections, 245 Md. 1, 224 A.2d 844 (1966) and Fowler v. Board of Elections, 259 Md. 615, 270 A.2d 660 (1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 583, 27 L.Ed.2d 637 (1971), make this distinction quite well. In McNulty, the election officials neglected to lock the levers over blank spaces on some of the voting machines, thereby allowing voters to pull those levers. One of those blank spaces was on the bottom line. McNulty, a candidate who had urged voters to “vote the bottom line,” filed an action for mandamus to require the election officials to count the votes on that bottom line as votes for him. We affirmed the dismissal of the petition, holding that the administrative error in not locking the levers did not justify calling a new election “the reason being, that no voter was actually prevented from voting for the candidate of his choice, if he followed the official election instructions published in the newspaper prior to the election, the directives on the specimen ballots also published, and the instructions of the Attorney General prominently posted in the polling places, and indeed, if they had followed the instructions on McNulty’s own sample ballot.” McNulty, supra, at 9, 224 A.2d at 848-49 (emphasis added). Fowler also involved a problem with voting machines, leading a losing candidate to seek a new election through an action for mandamus. Although in the absence of a claim that the irregularities would have changed the result, we expressed *690doubt as to Ms. Fowler’s standing to seek that relief, we affirmed dismissal of the petition on the merits, holding: “[The trial judge] concluded, correctly we think, that under the rationale and holding of McNulty v. Board of Elections, 245 Md. 1, 224 A.2d 844, and cases therein cited, the decisive question was ‘whether or not eligible voters who sought to cast a vote * * * were deprived of votes and whether or not, had they voted, this vote would have changed the outcome of the election.’ His findings of fact, the accuracy of which is not really challenged, were that there was no showing that any specific individual had been deprived of his franchise and therefore no showing that the irregularities affected the result of any election contest.” Fowler, supra, 259 Md. at 618-19, 270 A.2d at 662 (emphasis added). The caveat specifically mentioned in McNulty and Fowler is precisely the situation now before us. Not only was a citizen’s right to vote actually denied, but the vote that she claims she would have cast would, in fact, have changed the result of the election. Those cases, as I read them, require some judicial remedy. It should be of no consequence that, in a situation such as this, the problem arose from negligence rather than from fraud or that the negligence was somewhat diffuse — the product of carelessness on the part of several election officials. The effect is the same. The county election officials were careless in the manner in which they programmed their computer, causing it to disenfranchise a person for simply discharging her legal duty of notifying the board of a change of address. Having so misprogrammed the computer, they were careless in not checking the registration list they sent to the Seat Pleasant officials against any recent changes of address. Knowing that there was an election in Seat Pleasant and that the polls would be open until 8:00 p.m., they were careless in not making arrangements to have someone available to deal with any problems that might arise and that they would have the authority to resolve. The city officials were *691careless in not checking to make sure that an appropriate county official would remain available during the hours that the polls were open and, perhaps, in not making better efforts to contact a county official when the problem with Ms. Smith arose. This was not simply a minor administrative “goof.” It was a series of negligent acts or omissions on the part of responsible officials that, in combination, was almost certain to produce the kind of problem that actually arose. The Court sweeps by all of that and holds that, in the absence of fraud or arbitrariness, there is no remedy. What if, through pure negligence, the computer had de-registered all Democrats, or all Republicans, or all people in a given precinct, or all people whose last name begins with the letter “S”? Would the Court still say, “No fraud, no remedy”? I recognize that no election is run perfectly and that “glitches” occur despite the best intentions of the election officials, and I agree that the results of an election should not be set aside for inconsequential reasons. I accept the pronouncements from our earlier cases to that effect. This, however, is a different case-one that was foreseen in McNulty and Fowler — -and it needs to be treated accordingly. I believe that the Circuit Court correctly applied the law and entered an appropriate order, and I would therefore affirm its judgment. . That the election was a local, municipal one does not, of course diminish its significance. The laws enacted and policies pursued by town and county governments often have a greater and more immediate effect on people’s lives, fortunes, health, and welfare than laws enacted by Congress or policies pursued by the President.

2013-10-30 06:32:43.754464+00

Jones

535 S.W.2d 807 (1976) Jay C. WILSON et al., Appellants, v. Floydena M. TALBERT et al., Appellees. No. 75-327. Supreme Court of Arkansas. April 5, 1976. Rehearing Denied May 17, 1976. Keith, Clegg & Eckert, Magnolia, for appellants. McKay, Chandler & Choate, Magnolia, for appellees. JONES, Justice. This is an appeal from a chancery court decree canceling an oil and gas lease. The appellee Talbert[1] owned an undivided three-fourths mineral interest and Mrs. Haltom owned the other one-fourth interest in a tract of land in Ouachita County and they executed separate leases to the appellants covering their respective interests. The primary term of the Talbert lease was two years and that of the Haltom lease was three years. The leases were executed in 1964 and 1965 and an oil producing well was drilled by the appellants. The well continued to produce and royalties were paid under the lease contracts until in March, 1974, when a leak developed in the bottom of one of the appellants' 500 barrel storage tanks and production from the well was discontinued. The Haltom lease simply provided that it would remain in force for a term of three years from its date and as long thereafter as oil and gas, or either of them, was produced from the land by the lessee. The *808 pertinent provisions of the Talbert lease provided as follows: "Subject to the other provisions herein contained, this lease shall remain in force for a term of two (2) years from this date (herein called `primary term') and as long thereafter as oil and gas, or either of them, is produced from said leased premises or drilling operations are continuously prosecuted as hereinafter provided. `Drilling operations' includes operations for the drilling of a new well, the reworking, deepening or plugging back of a well or hole or other operations conducted in an effort to obtain or re-establish production of oil or gas; and drilling operations shall be considered to be `continuously prosecuted' if not more than 60 days shall elapse between the completion or abandonment of one well or hole and the commencement of drilling operations on another well or hole. If, after the expiration of the primary term of this lease, oil or gas is not being produced from the leased premises but lessee is then engaged in drilling operations, this lease shall continue in force so long as drilling operations are continuously prosecuted; and if production of oil or gas results from any such drilling operations, this lease shall continue in force so long as oil or gas shall be produced from the leased premises. If, after the expiration of the primary term of this lease, production on the leased premises should cease, this lease shall not terminate if lessee is then prosecuting drilling operations, or within 60 days after each such cessation of production commences drilling operations, and this lease shall remain in force so long as such operations are continuously prosecuted, and if production results therefrom, then as long thereafter as oil or gas is produced from the leased premises." The so-called force majeure clause in the Talbert lease reads as follows: "All express and implied covenants of this lease shall be subject to all applicable laws, government orders, rules and regulations. This lease shall not be terminated in whole or in part, nor lessee held liable in damages because of a temporary cessation of production or of drilling operations due to breakdown of equipment or due to the repairing of a well or wells, or because of failure to comply with any of the express or implied covenants of this lease if such failure is the result of the exercise of governmental authority, war, lack of market, act of God, strike, fire, explosion, flood or any other cause reasonably beyond the control of lessee." On September 23, 1974, Talbert filed petition for cancellation of the lease as a cloud on his title. He alleged that there had been no production from the lease since March, 1974, and no royalty paid since February, 1974; that the lease had expired and had not been renewed. He alleged that he had made demand for release under Ark.Stat. Ann. § 53-313 (Repl.1971); that his demand had been ignored; that the lease constituted a cloud on his title and he prayed that his title be quieted. By amendment to Talbert's petition, Haltom prayed the same relief as to her undivided one-fourth interest. The appellants filed answer and counterclaim denying that the lease had expired. They alleged the rupture in a storage tank and the difficulties encountered in repairing it as the reason for cessation of production. They alleged that when they sought entry to the premises in July, 1974, in an attempt to repair the tank, that Talbert refused them permission to enter; that his conduct estopped him from enforcing a forfeiture and that they were damaged in the amount of more than $1,000 per month because of such refusal. They prayed for a restraining order and for damages. On October 30, 1974, the chancellor entered a temporary restraining order permitting the appellants to enter the premises for repair of the tank and to restore production and, following a hearing on the merits, the chancellor rendered a letter-form memorandum opinion reciting in part as follows: "It is clearly stated in the Talbert lease that after the expiration of the primary term if the lease is not producing and within sixty days after cessation of production the lessee does not `commence *809 drilling operations' the lease terminates by its own terms. The attorneys cited no Arkansas cases construing this provision in a lease and I have found none, however, I have have found several cases from other jurisdictions construing similar provisions. These cases hold that the leases terminated by their own terms at the end of the stated period of time. McQueen v. Sun Oil Company, et al, 213 F.2d 889 (Ky.1954); Haby v. Stanolind Oil and Gas Company, 228 F.2d 298 (Tex. 1955); Loeffler v. King, [149 Tex. 626,] 228 S.W.2d 201 (Tex.1950); Francis et al v. Pritchett et al, 278 S.W.2d 288 (Tex. 1955). Also see House et al v. Tidewater Oil Company, et al, 219 So. 2d 616 (La. 1969). The Haltom lease does not have a sixty days provision but is for a term of three years and as long thereafter as oil and gas is produced. The Supreme Court of Arkansas considered a similar question in the case of Reynolds v. McNeill, 218 Ark. 453, 236 S.W.2d 723 (1951). * * * The Supreme Court stated that when a lessee's estate has vested it does not automatically terminate upon the the temporary cessation of production, and that most authorities allow the lessee a reasonable time within which to reinstate paying production. The Court has not stated the number of days that constitutes a reasonable time, but has stated that it depends on the facts and circumstances in each case. In my opinion the lessees in this case did attempt within a reasonable time to reinstate paying production, and the Haltom lease should not be terminated." The chancellor entered a decree in accordance with his findings and ordered an accounting for oil produced under the Talbert lease after its termination. There is no appeal from the chancellor's decree as to the Haltom lease but as to the Talbert lease, the appellants contend that the chancellor "erred in declaring a forfeiture of the Talbert lease under the 60-day clause." The appellants argue that since the chancellor found the cessation of production was of such temporary nature and reasonable effort to reinstate production sufficient to prolong or keep in force the Haltom lease, the question on this appeal is narrowed to, "(1) whether the language of the force majeure clause prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment; if not, (2) whether the 60-day clause contained in the Talbert lease should be construed as dealing with a production cessation of a temporary nature as here involved; and, in any event, (3) whether the efforts to restore production complied with the provisions of the 60-day clause." As we interpret the first above provision of the lease which twice contains the so-called "60-day clause," it refers to cessation of production because of depletion or threatened depletion of the well or wells rather than a temporary cessation because of such things as temporary lack of storage facilities. The wording of this provision is somewhat ambiguous but it evidently refers to a threatened permanent cessation which can be averted only by extensive measures such as the drilling of a new well or the reworking or deepening or plugging back of an existing well. As we interpret the "force majeure clause," it applies to temporary cessation of production as a result of causes beyond the control of lessee such as the ones therein set out. In this provision the parties fixed no minimum time, such as 60 days, in which to reinstate production because, obviously, the nature and extent of the breakdown, or cause of cessation of production, would govern the time required for making the necessary repairs or eliminating the cause of cessation of production. The length of such necessary time, in the absence of agreement to the contrary, could only be measured by such time as would be reasonable under the facts and circumstances of the particular case. The appellants argue that "the question on this appeal is narrowed to whether the language of the force majeure clause *810 prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment." It is our view, however, that the question, under the force majeure clause, is narrowed to whether the time involved in making the necessary repairs and restoring production was reasonable under the facts and circumstances of this case and, upon review of the evidence de novo, we conclude that it was not. The rupture in the tank bottom occurred in March and apparently there was no effort made to repair it until July. Furthermore, there was evidence to the effect that another storage tank stood adjacent to the damaged one and that it could have been utilized by simply opening or closing valves, following minor repairs. The rule is well established that on trial de novo in chancery cases, the chancellor's decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454 (1968); James v. Medford, 256 Ark. 1002, 512 S.W.2d 545 (1974). The decree is affirmed. NOTES [1] Both Mr. and Mrs. Talbert were parties but will be referred to in the singular.

2013-10-30 06:32:43.792103+00

Plunkett

955 F. Supp. 886 (1996) Philip DICKEY, Plaintiff, v. PEOPLES ENERGY CORPORATION, an Illinois corporation, a/k/a Peoples Gas Company, Defendant. No. 95 C 3108. United States District Court, N.D. Illinois, Eastern Division. December 31, 1996. David Allan Beck, Ronald A. Orner, Orner & Wasserman, Ltd., Chicago, IL, Mary Alice Mazurk, Chicago, IL, for Philip Dickey. John P. Jacoby, Paul F. Gleeson, Kathleen Liv Lyons, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Peoples Energy Corp. MEMORANDUM OPINION AND ORDER PLUNKETT, District Judge. This case arises from plaintiff Philip Dickey's dismissal by his employer after it found him no longer eligible to receive long term disability benefits and its subsequent conclusion that it was unable to find a job for him that he was able and qualified to perform with or without a reasonable accommodation. Mr. Dickey sues under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"). The matter is now before us on defendant's motion for summary judgment. For the reasons set forth below, we grant the motion. Background The defendant, Peoples Gas Light and *887 Coke Company (the "Company"),[1] is a public utility engaged in the sale and distribution of natural gas to customers in the City of Chicago. The plaintiff, Philip Dickey, began his employment with the Company as a laborer on August 12, 1968. As a result of acute arthritis of his hands, Mr. Dickey was absent from work from September 1985 to February 1986. On February 3, 1986, his doctor released him to return to work, provided he avoid air hammering, digging, and tasks that involve gripping objects with his hands. As a result of these restrictions, Mr. Dickey was transferred to the job of yard laborer at the Company's Central District shop facility. His duties included loading meters weighing five to seven pounds into crates by hand; emptying plastic refuse bags into a dumpster by hand; operating a forklift to move various objects; sweeping the facility using both a push broom and an automatic sweeper; driving a Company vehicle to making deliveries to employees in the field; maintaining the grounds; and washing cars. While continuing to suffer from acute arthritis, Mr. Dickey injured his back on August 28, 1989, while lifting meters to place them in a crate. He has not returned to work since this injury.[2] Mr. Dickey underwent back surgery on October 10, 1989, and, on March 1, 1990, his physician advised the Company that Mr. Dickey would not be able to return to his previous level of work activity because of a high risk of re-injury if he engaged in any lifting activity. On April 2, 1990, Mr. Dickey advised the Company's medical director, Dr. E. Alannah Ruder, that he suffers nearly constant back pain that increases with walking up to four blocks and that he engages in no activities more strenuous than that. Mr. Dickey's physician also advised Dr. Ruder at about this time that Mr. Dickey should perform only sedentary work. Mr. Dickey received sickness benefits from the Company from August 28, 1989 until October 30, 1990, when they were exhausted. After a case meeting held by the Company on November 11, 1990, regarding Mr. Dickey's employment position, Mr. Dickey was instructed to apply for disability benefits under the Social Security Act (the "Act") and for long term disability ("LTD") benefits under the Company's Long Term Disability Benefit Plan. Mr. Dickey did so, stating that he could neither stand nor sit very long and could not walk four blocks before experiencing pain, and that he had constant pain in his hands, right shoulder, arm, lower back, and legs. On April 2, 1991, the Company's administrator of the LTD Plan, John Hancock Mutual Life Insurance Company ("John Hancock"), determined that Mr. Dickey was eligible for LTD benefits, retroactive to October 31, 1990, when his sickness benefits expired. In follow-up reports, Mr. Dickey's physician advised the Company, on February 26, 1992, that Mr. Dickey's condition had not improved and that he could not perform clerical work due to carpal tunnel syndrome and, on May 30, 1992, that he is totally disabled and unable to engage in any substantial gainful activity. On September 25, 1992, an administrative law judge of the Social Security Administration ruled that Mr. Dickey is able to perform sedentary work and is therefore not disabled within the meaning of the Act. Accordingly, he found that Mr. Dickey was not entitled to disability benefits under the Act. Upon reviewing this decision and reconsidering Mr. Dickey's medical record, John Hancock recommended, *888 on November 23, 1992, that the Company discontinue LTD benefits, for the reason that he was not "totally disabled" under the Company's LTD Plan. On December 16, 1992, Mr. Dickey was evaluated by the Company's medical department. He reported that his condition was about the same as it was a year earlier, that he still had pain and pressure in his lower back and was unable to bend, that the pain was not as bad as before and he was taking less pain medication, that his activity at home was limited to lying in bed, trips to the bathroom and to the postoffice by bus or "El," that he had not driven in two years, and that he could not suggest any tasks or jobs he could perform. On December 23, 1992, the Company notified Mr. Dickey that it was terminating his LTD benefits, and it invited him to request an accommodation so that the Company could assess possible job opportunities for him. Mr. Dickey responded, stating that he could not engage in bending, lifting, prolonged standing or sitting, walking, or gripping. He placed a question mark in the space where he was to indicate the type of accommodation requested. He did not know what type of accommodation to request, because he was no longer familiar with what jobs were open or the content of the jobs — the only particular job he had in mind was that of yard laborer. Mr. Dickey appealed both the denial of disability benefits under the Social Security Act[3] and the denial of LTD benefits under the Company's LTD Plan, continuing to assert that he was totally disabled within the meaning of both the Act and the LTD Plan. On February 17, 1993, the Company's ADA Compliance Committee reviewed Mr. Dickey's case and decided, based on the available medical information and his assertions of the limited activities in which he could engage, that he was unable to return to the yard laborer job and also that there was no other job in the Company that he had both the skills and the physical ability to perform. Nevertheless, the committee chair, John Ibach, directed the Employment and Training Department to review all job openings to determine if Mr. Dickey could perform any of them. None were found — Mr. Dickey concedes that he cannot type, take shorthand, or work with a computer, and he knows of no office job that he has the ability to perform — and on March 4, 1993, Mr. Dickey was notified that his request for an accommodation was denied, but that he would be placed on layoff status until his appeal for reinstatement of LTD benefits was concluded. On May 27, 1993, Mr. Dickey's attorney furnished the Company, in support of the appeal, a letter from Mr. Dickey's physician that stated that Mr. Dickey's condition, as of May 10, 1993, was as follows: chronic low back pain, occasional sharp pain in the right leg, and numbness; increased back pain with standing or sitting for fifteen minutes; discomfort after walking three or four blocks; and limited ability to bend or lift without pain. On July 27, 1993, the Company notified Mr. Dickey that his appeal for reinstatement of LTD benefits was denied because he no longer met the definition of "total disability" under the LTD Plan. On August 30, 1993, the Company notified him that in view of the denial of his appeal, a lump sum severance allowance would be paid and that he could now withdraw the shares of the Company's stock held in trust for him in the Company's employee stock ownership plan. On May 24, 1994, Mr. Dickey filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that "I could have returned to work, was released to do so by my doctors, but was not allowed to do so by Respondent." He was later issued a right-to-sue letter. This action followed. Discussion In order to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is *889 entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether there is a genuine issue for trial, i.e., "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). We view all evidence and all inferences therefrom in the light most favorable to the party opposing the motion for summary judgment. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991) (citing Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990)). However, if that party bears the burden of proof at trial on a dispositive issue, that party is required "to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)). Ultimately, if "alternate inferences can be drawn from the available evidence, summary judgment is inappropriate." LHLC Corp. v. Cluett Peabody & Co., 842 F.2d 928 (7th Cir.1988). "Summary judgment is only appropriate when no reasonable jury could find for the moving party." Karazanos, 948 F.2d at 335 (citing Doe v. Allied Signal, Inc., 925 F.2d 1007, 1008 (7th Cir. 1991)). The ADA provides that: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.... 42 U.S.C. § 12112(a). The ADA defines "qualified individual with a disability" as follows: The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.... 42 U.S.C. § 12111(8). The defendant contends that Mr. Dickey cannot be considered a "qualified individual with a disability," because he cannot show that, with or without a reasonable accommodation, he could perform the essential functions of a job that he holds or desires. The undisputed evidence shows that Mr. Dickey could not perform the essential functions of the yard laborer job — the job he had held prior to the onset of his disability — or any other available job he may have desired. His doctors advised the Company that he could not return to his job as yard laborer, that he should perform only sedentary work, that his condition had not improved since his back surgery, and that he is totally disabled — unable to engage in any substantial gainful activity. Mr. Dickey himself asserts that he suffers nearly constant pain and his movements are severely limited; he is unable to suggest any tasks or jobs that he can perform and is unable to suggest any accommodations that would allow him to perform any available jobs. Furthermore, since November 20, 1990, Mr. Dickey has sought disability benefits under both the Social Security Act and the Company's LTD Plan, contending that he meets the definition of "totally disabled" under both programs. He cannot consistently claim now that he could have performed the essential functions of his job as yard laborer, or any other job, during a period when he sought LTD benefits claiming total disability. The Company's contention thus appears unassailable. Mr. Dickey's only response is to argue that the defendant reads the statutory definition of "qualified individual with a disability" too narrowly, by pointing out that the definition applies to an individual who can fulfill the essential functions of an "employment position." See 42 U.S.C. 12111(8). In essence, Mr. Dickey argues that by using the term "employment position" rather than "job," the definition covers not only those who are able, with or without a reasonable accommodation, to perform the essential functions of the job they hold or desire, but also the "employment position" actually occupied by Mr. Dickey: that of an LTD benefit recipient. Thus, the argument goes, as long as Mr. Dickey satisfies all nondiscriminatory *890 eligibility criteria for receipt of benefits, he is a "qualified individual with a disability" within the meaning of the ADA. By making this argument, Mr. Dickey appears to abandon the claim upon which he brought this lawsuit — that the Company failed to accommodate his disability by not allowing him to return to work — and to substitute a new one — that the Company improperly terminated his LTD benefits. To be sure, this substituted claim is not stated explicitly, but it is the only way to make sense of the argument the plaintiff now raises that he is a "qualified individual with a disability." In any case, in a ruling issued after the defendant filed its reply brief in the instant motion, the Seventh Circuit has found the precise argument that Mr. Dickey now raises to be without merit. EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir.1996). We can do no better than to quote the relevant passage from that ruling: The EEOC's principal theory is, at best, strained. It asserts that Valladares-Toledo's "employment position" vis-a-vis CNA is now that of "disability benefit recipient." Because CNA imposes no job-related duties on any of the beneficiaries of its long-term disability plan, Valladares-Toledo by definition can perform the essential functions of her position: there are none, other than collecting the benefit checks for as long as she is entitled to do so.... We need not tarry long on the argument that the status of "benefit recipient" fits within the definition of someone filling an "employment position," as required by 42 U.S.C. § 12111(8). An "employment position" is a job. Id. at 1043-44. This ruling compels our conclusion that Mr. Dickey is not a "qualified individual with a disability" within the meaning of the ADA and is therefore not entitled to the protection of the ADA. Mr. Dickey's change of theory in midstream seems to argue that his complaint should be analyzed, not under the ADA, but under the Employee Retirement Income Security Act, 29 U.S.C. S § 1001-1461 ("ERISA"), stating the claim that Mr. Dickey's LTD benefits were improperly terminated. Even though there is insufficient evidence now before us to decide such a claim, under the liberal pleading standards of the Federal Rules of Civil Procedure we might be able to preserve an ERISA claim for further adjudication if Mr. Dickey's complaint could be construed to encompass such a claim. Unfortunately for Mr. Dickey, his complaint cannot be so construed. Though it is possible that Mr. Dickey and his counsel believed all along that the denial of disability benefits was tantamount to a denial of a reasonable accommodation under the ADA, the complaint never made that equation explicit. The language of the complaint is exclusively couched in terms of a denial of reasonable accommodation within the meaning of the ADA and does not allege that Mr. Dickey is totally disabled. In fact, it alleges the opposite: From on or about January 1991 until on or about December 1992, Plaintiff was placed on long term disability by PEOPLES GAS despite being able to fulfill productive and useful functions for PEOPLES GAS. Compl. at ¶ 14. Furthermore, Mr. Dickey attached to his complaint and incorporated by reference his right-to-sue letter from the EEOC, which states that, in his EEOC charge, he had alleged that "he was discriminated against because of his disability in violation of the ADA in that he was released to return to work by his doctor and could return to work, but was not allowed to do so by Respondent." We conclude that Mr. Dickey's complaint cannot be construed to encompass the ERISA claim that his LTD benefits were improperly denied that he now seems to be pursuing in his response to defendant's motion for summary judgment. Because the complaint before us does not state an ERISA claim and because the evidence in this case cannot support the ADA claim that is explicit in the complaint, we grant defendant's motion for summary judgment. Conclusion For the foregoing reasons defendant's motion for summary judgment is granted. This is a final and appealable order. NOTES [1] In his complaint, Mr. Dickey denominates the defendant as "Peoples Energy Corporation, a/k/a Peoples Gas Company." Compl. at ¶ 6. In its answer, the Company denies this denomination and states that "The Peoples Gas Light and Coke Company is a subsidiary of Peoples Energy Corporation...." Because it remains uncertain whether Mr. Dickey intends to sue the parent corporation, the subsidiary, or both, we have retained the caption for this case as set out in the complaint, as has the Company, which — since it appears to have accepted the role — we shall refer to provisionally as the defendant. Because we grant the Company's motion for summary judgment, we need not now resolve the precise identity of the defendant(s), but we caution Mr. Dickey and his counsel to resolve the matter on their own if they determine that it is proper to bring an action under ERISA. [2] The defendant refers to Mr. Dickey's back injury of August 28, 1989 as an "alleged injury" in its recital of facts. Because our decision today does not depend on a determination of whether or not the injury was real, we shall assume for present purposes that it was. [3] The evidentiary record is silent as to the outcome of this appeal, though Mr. Dickey states in his response that it was denied but does not state when.

2013-10-30 06:32:43.794054+00

Fogleman

535 S.W.2d 819 (1976) MOHAWK RUBBER COMPANY, Employer and the Travelers Insurance Company, Insurance Carrier, Appellants, v. Fred L. BUFORD, Employee. No. 75-364. Supreme Court of Arkansas. April 26, 1976. *820 Wright, Lindsey & Jennings, Little Rock, for appellants. Youngdahl, Larrison & Agee, Little Rock, for appellee. FOGLEMAN, Justice. This is a workmen's compensation case. The question for decision is the liability of the insurer for medical services provided by a physician selected by the injured employee rather than one of a panel of physicians designated by the employer pursuant to Rule 21 of the Workmen's Compensation Commission, which is a partial implementation of Ark.Stat.Ann. § 81-1311 (Repl.1960). On 24 October 1972, appellee Fred Buford suffered a compensable spinal injury while working in the employ of Mohawk Rubber Company at its West Helena facility. He reported the injury to his supervisor but did not then see a physician and worked the remainder of that day and the following day. On the 26th of October, Buford, on his own initiative, visited his family physician at Marianna, where appellee lived. That physician made x-rays of the injury and referred Buford to Dr. Robertson, a Memphis neuro-surgeon, for an appointment on 30 October. Appellee knew at this time *821 that appellants had retained a panel of doctors to be used by injured employees, and he had been treated by one of them, Dr. Traylor, a chiropractor, for a previous compensable injury. He also knew that there had been letters on the bulletin board with reference to the use of company doctors for treatment of job-related injuries. On 29 October, appellee reported his injury to Mrs. Joann Smith, an employee of Mohawk charged with the administration of such affairs. He explained to her the visits he had made and arranged with doctors of his own choosing. Mrs. Smith advised him that it was a company policy that he use one of the "company doctors," a panel of five Helena medical doctors and a chiropractor retained by the company who, if necessary, would refer appellee to a group of specialists in Little Rock. She further told him that the company would not pay for the services of a physician other than a member of its retained panel or a specialist referred by one of the panel. But appellee expressed a preference for his own doctor. He objected to Mrs. Smith to having to go all the way to Little Rock which is further from his home in Marianna than is Memphis in order to see a specialist and told her, with regard to treatment by Dr. Robertson, "I'll pay it." He eventually agreed to accept an appointment with Dr. Traylor. Mrs. Smith phoned Dr. Traylor and arranged for an appointment for 30 October, which appellee did not keep. Instead, he saw Dr. Robertson in Memphis.[1] Appellants controverted appellee's claim for the expenses of treatment he received in Memphis on grounds that Workmen's Compensation Commission Rule 21 permits the employer to furnish medical treatment in the first instance of its own choosing. That rule, in pertinent part, reads: The employer and/or insurance carrier has the right and duty in the first instance to provide prompt medical care to injured employees through physicians and hospitals of the respondents' choice. After a hearing on the claim, a referee held appellants liable for appellee's medical expenses. On appeal to the Workmen's Compensation Commission, it was again held that appellants were liable for these medical expenses on the strength of Commission Rule 23, which permits a deviation from Rule 21, whenever good cause is shown, insofar as compliance may be found to be impossible or impractical. The commission cited as one of the circumstances where a deviation had been permitted as "when claimant receives treatment through a chain of referral initiated by the first treating physician." Appellee suggests (and the commission agreed) that, having already entered upon a chain of referral when appellants offered the services of the physicians on the panel, he was justified in going to Dr. Robertson and should be reimbursed for this expense. See Zeeb v. Workmen's Compensation Appeal Board, 67 Cal. 2d 496, 62 Cal. Rptr. 753, 432 P.2d 361 (1967). The commission concluded: In this case, the claimant saw his family physician in Marianna because it was more convenient than traveling the distance between Marianna and Helena to see a company physician. We find the claimant's actions reasonable under the circumstances and his further treatment appears to have been reasonable and necessary through a normal chain of referral. In fact, there is no contention by respondent that the treatment given was either excessive in cost or failed to achieve satisfactory results. The record reflects that the claimant has returned to normal work duties and has been released with no permanent disability even though a ruptured cervical disc is suspected, all of which strongly suggest that the conservative treatment administered was highly successful. Appellants argue on appeal that there were no circumstances to justify a deviation from Rule 21 in this case, submitting that the relative convenience for appellee to visit his family doctor and the resultant establishment *822 of a chain of referral were not "criteria for excusing non-compliance." Ordinarily, the decisions of the Workmen's Compensation Commission will be affirmed if there is any substantial evidence to support them and the question of whether the evidence is substantial in nature is one of law. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W.2d 82. But, where the decision is based upon the application of the commission's own rules, we must also view it in deference to the commission's treatment of these rules. The Workmen's Compensation Commission is empowered to make such rules and regulations for the administration of the Workmen's Compensation Law as may be found necessary. Ark.Stat.Ann. § 81-1343(9). Any reasonable construction or interpretation given such rules is certainly entitled to great weight upon judicial review, even if it is not controlling. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445 (1957); Winslow v. Carolina Conference Ass'n. of Seventh Day Adventists, 211 N.C. 571, 191 S.E. 403 (1937); Employers Mutual Liability Ins. Co. v. Dept. of ILHR, 62 Wis. 2d 327, 214 N.W.2d 587 (1974); Russomanno v. Leon Decorating Co., 282 A.D. 18, 121 N.Y.S.2d 732 (1953); Honeywell Inc. v. Haley, 216 So. 2d 745 (Fla., 1968); Kramer v. Chapman & Gerber, Inc., 235 So. 2d 489 (Fla., 1970). See also, Christian v. Industrial Commission, 13 Ariz.App. 285, 475 P.2d 770 (1971). Certainly, if an administrative agency's interpretation of its own rule is not contrary to statute or irreconcilably contrary to the plain meaning of the regulation itself, it may be accepted by the courts. Employers Mutual Liability Ins. Co., supra. Furthermore, even if rules made by the commission may not be disregarded, they may be relaxed by it. See In Re DaLomba's Case, 352 Mass. 598, 227 N.E.2d 513 (1967); Wasson v. Tulsa Dairy Supplies, 315 P.2d 773 (Okl., 1957). Where the commission's rules have the effect of establishing guidelines or standards, some relaxation of them, in the discretion of the commission, is permissible. Anheuser Busch, Inc. v. Industrial Commission, 29 Wis. 2d 685, 139 N.W.2d 652 (1966). Great weight should be accorded the findings of the commission with reference to compliance with its rules and regulations, since it, being authorized to make them, is in a superior position to determine whether they have been complied with. Libby, Mc-Neill & Libby v. Alaska Industrial Board, 109 F. Supp. 101 (D.C.Alaska, 1952). Consequently, testimony must be weighed in its strongest possible light in favor of the commission's findings. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41. The controlling consideration in the interpretation of a workmen's compensation statute is that the act must be liberally construed with all doubts resolved in favor of the claimant, which is necessary to effectuate the beneficent and humane purposes of the act. Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W.2d 200. First of all, this is not the sort of situation with which we dealt in Sallee Bros. v. Thompson, 208 Ark. 727, 187 S.W.2d 956, in applying Ark.Stat.Ann. § 81-1320(a) (Supp. 1975), which reads, in part: No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act... There is no assertion that appellee's comment, "I'll pay it" constituted such an agreement. All parties agree that the injury was indeed compensable in nature. The general rule is that, where a panel of physicians is retained by an employer, as here, and an employee engages other medical services and disregards the panel made available to him, the employer is not liable for the expense of the private care. Larson's Workmen's Compensation Law § 61.12 at 10-446. Accord, Caldwell v. Vestal, 237 Ark. 142, 371 S.W.2d 836. *823 Here appellee knew of the availability of the company doctors but chose to visit his family physician and the Memphis specialist to whom he was referred since both were closer to his home town, Marianna, and thus more convenient to visit than the company doctors in Helena and specialists in Little Rock. In Caldwell v. Vestal, supra, where we awarded payment of medical expenses to the claimant who had made an unauthorized change of physicians, we cautioned: Our holding is not intended to, and does not, give an injured workman unrestricted freedom to reject the medical care offered by his employer. We said that an employee who does so acts at his own peril in disregarding a warning that an expense will not be covered by his insurer, despite the fact that there may be circumstances in which the employer will remain liable notwithstanding (see Bell Telephone Co. v. Brown, 256 Ark. 54, 505 S.W.2d 207) but found, in that situation no sound basis for exempting the employer from liability. So the question before the commission was, granting that appellee acted at his own peril in electing not to visit Dr. Traylor, whether his reasons for doing so were such as to justify the application of Rule 23 to permit a deviation from Rule 21. Viewing the testimony in the light most favorable to the commission's findings, we agree that appellee's visits to the doctors in closer proximity to his home than those offered by appellants were certainly more convenient or even more practical for him. But more importantly, we find that, in these circumstances, the Commission exercised its discretion and we are unable to say that it was abused. The central rule defining the circumstances under which a claimant may himself incur compensable medical expense may be put as follows: If the employer has sufficient knowledge of the injury to be aware that medical treatment is necessary, he has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the claimant may make suitable independent arrangements at the employer's expense. Larson's Workmen's Compensation Law § 61.12 at 10-450. In the instant appeal appellee reported the injury to his supervisor but was neither relieved from work nor referred to Mrs. Smith who administered the medical program. According to appellee, nothing specifically was said by either party at the time of the injury about his seeing a physician and his supervisor did not even take the time to report his injury until four hours later. Appellant fully informed appellee of its provisions for medical care and offered the services of the panel of physicians only when appellee reported to Mrs. Smith, at which time appellee had already procured medical attention independently. We cannot say that appellee had no justification for his independent procurement of medical care, although he admits he was aware of the existence of the panel of physicians retained by his employer. Draney v. Industrial Accident Commission, 95 Cal. App. 2d 64, 212 P.2d 49 (1949). Under these circumstances, the Commission concluded that the appellee's independent procurement of medical treatment was reasonable. See Zeeb v. Workmen's Compensation Appeals Board, supra; cf. Pacific Indemnity Co. v. Industrial Accident Commission, 220 Cal. App. 2d 327, 33 Cal. Rptr. 649 (1963) and Montyk v. Workmen's Compensation Appeals Board, 245 Cal. App. 2d 334, 53 Cal. Rptr. 848 (1966). Viewing the evidence most favorably to the commission's findings and giving due deference to its interpretation and application of its own rules, we cannot say that it erred. The judgment of the circuit court affirming the decision of the commission is affirmed. NOTES [1] Although the evidence is, for the most part, not in conflict, we have, as usual, viewed it in the light most favorable to the commission's findings.

2013-10-30 06:32:43.796576+00

Veasey

774 A.2d 264 (2001) WARBURG, PINCUS VENTURES, L.P., Defendant Below, Appellant, v. Dietrich K.H. SCHRAPPER, M.D., Plaintiff Below, Appellee. No. 198, 2000. Supreme Court of Delaware. Submitted: April 17, 2001. Decided: May 31, 2001. Martin P. Tully, Esquire, and Bradley James Enna, Esquire, of Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware; Of Counsel: Roger Netzer, Esquire (argued), of Willkie Farr & Gallagher, New York, New York, for Appellant. Edward M. McNally, Esquire, of Morris, James, Hitchens & Williams, LLP, Wilmington, Delaware, for Appellee. Before VEASEY, Chief Justice, WALSH, HOLLAND, BERGER and STEELE, constituting the Court en Banc. *266 VEASEY, Chief Justice. We accepted this appeal to review an interlocutory order of the Superior Court denying a motion to dismiss on the ground of forum non conveniens. Because the Superior Court applied the correct legal standard and did not abuse its discretion in determining that the appellant has not satisfied the overwhelming hardship standard, we affirm. Facts Dr. Dietrich K.H. Schrapper, a German citizen, filed a complaint in Superior Court against Warburg, Pincus Ventures L.P. ("Warburg") on June 25, 1999. Warburg is a Delaware limited partnership. The complaint concerns negotiations, and an alleged contract, between Warburg's wholly owned U.K. subsidiary, E.M. Warburg, Pincus & Co. International Limited, and Schrapper relating to a joint venture they were to form to invest in the German healthcare industry. According to the complaint, the parties executed a term sheet dated December 2, 1996 that committed Warburg to supply financing for the acquisition of German healthcare facilities, subject to the fulfillment of certain conditions contained in the term sheet. Schrapper alleges that these conditions were fulfilled, as were several additional conditions Warburg placed on the deal in the following months, such as requiring Schrapper to terminate employment relationships with various healthcare facilities. According to Schrapper, Warburg continued to delay closing the deal for pretextual reasons while Schrapper pressed to close. On April 3, 1997, Warburg informed Schrapper's attorneys that it did not intend to form the partnership contemplated in the term sheet. Schrapper's complaint seeks recovery under theories of breach of contract, "tortious breach of contract," "breach of the covenant of good faith and fair dealing," "quantum meruit," "tortious interference with existing business relationships," "tortious interference with prospective economic advantage," "promissory estoppel," *267 and "fraudulent inducement and misrepresentation." Schrapper alleges, in essence, that Warburg intentionally led Schrapper along, using confidential and proprietary information Schrapper supplied to form another venture without him. His complaint seeks damages "of at least DM 261,816,500" based on lost compensation, termination of business relationships in reliance on Warburg's alleged promises, and various other costs and damages. All of the activities that are the basis of Schrapper's complaint occurred outside of the United States. The negotiations between the parties and their attorneys took place in Germany and England, which is also where all of the witnesses reside and where all of the evidence is located. Similarly, Schrapper's alleged damages involve interference with his relationships with various German entities. On September 9, 1999, Warburg filed a motion to dismiss on the ground of forum non conveniens. In support of dismissal, Warburg argues in its motion that the only connection this case has to Delaware is Warburg's status as a Delaware limited partnership, that the witnesses and evidence are all in Germany and England, and that either German law or possibly English law would apply to this action. The Superior Court denied Warburg's motion on the ground that Warburg had not established with particularity that it would face overwhelming hardship if required to litigate in Delaware.[1] We affirm the order of the Superior Court denying the motion to dismiss. Warburg Must Demonstrate Overwhelming Hardship Our jurisprudence is clear that a complaint will not be dismissed on the ground of forum non conveniens without a showing of overwhelming hardship.[2] While this standard is not "preclusive," it requires a defendant to show that the case is "one of the rare cases where the drastic relief of dismissal is warranted based on a strong showing that the burden of litigating in this forum is so severe as to result in manifest hardship to the defendant."[3] It is well established that Delaware courts assess hardship to the defendant using the following six "Cryo-Maid" factors: (1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; (5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and (6) all other practical problems that would make trial of the case easy, expeditious, and inexpensive.[4] In this case, the Superior Court properly focused on whether Warburg has made a showing of overwhelming hardship *268 under the Cryo-Maid factors. Warburg argues that the Superior Court applied an incorrect legal standard. It argues that in a case in which the plaintiff is not a Delaware citizen and the defendant's "only connection" to Delaware is its status as a Delaware business entity (in this case, a limited partnership), the overwhelming hardship standard does not apply.[5] We conclude that Delaware forum non conveniens law does not support this argument. Warburg's argument relies principally on language in Ison. In Ison, the DuPont Company, a Delaware corporation with its principal place of business in Delaware, was sued in Delaware by plaintiffs from New Zealand, England, Wales, and Scotland.[6] We reversed the decision of the trial court granting the defendant's motion to dismiss on the ground of forum non conveniens. Although we held that Delaware was a proper forum, we stated that the presumption of deference generally accorded a plaintiff's choice of forum "is not as strong" in the case of a foreign plaintiff.[7] In addition, because the dispute in Ison involved witnesses and evidence in part located in Delaware, we observed that it was "not a case of weighing the foreign plaintiffs' choice of forum (whether it be `forum shopping' or not) against a defendant whose only connection is that it is incorporated in Delaware."[8] Based on this language, Warburg argues that while it has to show hardship it does not have to meet the overwhelming hardship standard, which is generally met only in the rare case. The cases relied on by Warburg do not support a modification of the traditional showing a defendant must make in order to prevail on a motion to dismiss on the ground of forum non conveniens. On the contrary, in both Ison and Taylor, each of which involved foreign plaintiffs, this Court found that the motion to dismiss on the ground of forum non conveniens should not have been granted by the trial court because the defendant had not shown overwhelming hardship.[9] The application of the overwhelming hardship standard in Taylor is especially pertinent because in that case, as here, the plaintiffs were foreign and the only connection to the Delaware forum was the domiciliary status of the business entity.[10] The forum non conveniens analysis is fact-sensitive, given "the discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application."[11] Under our case law, *269 however, "[t]he issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware."[12] We reject Warburg's argument that some lesser hardship standard applies to this case. Application of Overwhelming Hardship Standard to this Case Having concluded that the Superior Court properly required Warburg to show overwhelming hardship through the factors set forth in Cryo-Maid, we now review its finding that Warburg has failed to sustain its burden. A motion to stay or dismiss on the ground of forum non conveniens is addressed to the sound discretion of the trial court.[13] "[T]his Court must determine whether the findings and conclusions of the Superior Court are supported by the record and are the product of an orderly and logical deductive process."[14] Warburg's central claim of hardship involves ease of access to proof and availability of compulsory process for procuring the testimony of witnesses. Regarding compulsory process for witnesses, it is not disputed that the German witnesses are beyond the compulsory process of the Delaware courts. Warburg argues that the inability to compel live testimony from third-party German witnesses prevents effective testing of Schrapper's claims based on breach of contract and interference with third-party business relationships. The trial court held, correctly in our view, that this argument does not support a claim of hardship. Warburg's motion to dismiss does not specify any of the witnesses that are alleged to be beyond its reach and whose absence would adversely affect Warburg's defense. In oral argument before the trial court and in its submission to this Court, Warburg has referred to two unnamed non-party witnesses, a "broker" and a "healthcare consultant," that may not be available to testify in Delaware. Warburg explains the relevance of their testimony with the vague averments that the broker "introduced [Dr. Schrapper] to Warburg" and the consultant "assisted in the negotiations."[15] We agree with the trial court that the record fails to support the contention that the potential absence of these witnesses is sufficient to establish hardship.[16] As the *270 trial court recognized, Warburg can obtain live testimony from witnesses under its control who were actual parties to the negotiations.[17] The difference to Warburg in travel time and expense involved in flying witnesses from England to Germany or Delaware, or from Germany to Delaware, cannot be deemed an overwhelming hardship to Warburg.[18] Warburg is especially concerned that it will be deprived of live testimony that it needs to "rebut plaintiff's theory of damages" based on Warburg's alleged interference with Schrapper's existing and prospective business relationships. Warburg's concern is simply that the jury will hear self-serving testimony from Schrapper (and possibly others friendly to Schrapper) but will not have the opportunity to hear from witnesses who would tend to refute Schrapper's claims. Initially, Schrapper may have the advantage of calling witnesses favorable to his position and taking the stand himself. Without compulsory process, Warburg may have some difficulty presenting rebuttal testimony. Ultimately, however, it is Schrapper who must prove damages, not Warburg. We are not persuaded that Warburg, in concert with its U.K. subsidiary, will be unable to counter Schrapper's anticipated litigation strategy, perhaps with German witnesses of its own. Certainly, Warburg has not demonstrated overwhelming hardship in this connection. Turning to the related factor of relative ease of access to proof, the parties differ on the scope and efficacy of Hague Convention procedures for accessing evidence in Germany.[19] Warburg agrees, however, that the Hague Convention ostensibly permits a limited form of deposition. Warburg has also argued that it would be "difficult if not impossible" to obtain discovery of documents that are located in Germany, although its arguments at various phases of this litigation have placed more emphasis on the difficulty than the impossibility. Based on the authorities cited by the parties, it appears that Warburg could, as it argues, "conceivably have no pretrial discovery" if the case is litigated in Delaware, but will be able to obtain at least some evidence from Schrapper for the purposes of trial.[20] To the extent that the issues in this case involve business dealings between the parties, nothing in the record suggests that Warburg lacks much of the documentary evidence. *271 We agree with the trial court's conclusion that Warburg has not demonstrated with particularity that true hardship would result if it is forced to resort to Hague Convention procedures to obtain discovery.[21] The next Cryo-Maid factor relevant to this case[22] is "whether the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction."[23] It appears that foreign law governs this dispute, although the choice of law determination has not been made by the trial court at this stage of the proceedings.[24] The choice of law factor, while relevant to establishing hardship and inconvenience, primarily focuses on "Delaware's interest in the litigation," a focus evident in the phrasing of the factor itself.[25] Warburg's argument focuses on the expense and inconvenience of translating pertinent legal precedent (assuming German law applies), retaining foreign lawyers, and producing foreign law experts to testify at trial. On the record before us, we do not think the trial court erred in giving little weight to this argument in the context of the overwhelming hardship analysis.[26] In light of this analysis, the remaining factors require little discussion. There is no pending action in Germany or elsewhere, a fact that could weigh against dismissal.[27] At best, this factor could conceivably carry little weight in the analysis if minimal "cost and prejudice" to Schrapper would result from dismissal.[28] Therefore, since Warburg has not demonstrated overwhelming hardship through the combination and weight of any or all of the other Cryo-Maid factors,[29] we need not consider the degree to which the non-pendency of other actions also counsels against dismissal in this case. Finally, Warburg has not cited any other practical problems associated with litigating in Delaware in addition to the issues discussed above. Conclusion We agree with the trial court that Warburg "has not done anything more than claim inconvenience and has not supported *272 this claim with anything of substance."[30] Warburg's motion to dismiss on the ground of forum non conveniens is based on little more than generalized references to the garden-variety concerns and expenses that characterize transnational litigation. Accordingly, we affirm the interlocutory order of the Superior Court. NOTES [1] See Schrapper v. Warburg Pincus Ventures, L.P., Del.Super., C.A. No. 99C-06-268 (March 30, 2000) (Letter Op.). [2] See Ison v. DuPont de Nemours, Del.Supr., 729 A.2d 832, 838 (1999). [3] Id. at 842. See also Taylor v. LSI Logic Corp., Del.Supr., 689 A.2d 1196, 1197 (1997) (holding that dismissal is not warranted where defendant "has not established with particularity on this record that it would be subjected to overwhelming hardship and inconvenience if required to litigate in Delaware"). [4] Ison, 729 A.2d at 837-38 (citing General Foods Corp. v. Cryo-Maid, Inc., Del.Supr., 198 A.2d 681, 684 (1964)). [5] Alternatively, Warburg maintains that it has shown overwhelming hardship under the Cryo-Maid factors. We address this argument below. [6] Ison, 729 A.2d at 835. [7] See id. ("The fact that the plaintiffs are foreign nationals does not deprive them of the presumption that their choice of forum should be respected. Although that presumption is not as strong ... we need not rest our decision on that issue because of the defendant's weak showing of hardship."); see also id. at 839 (citing Piper Aircraft v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)). [8] Id. at 842-43. [9] See id. at 835 (reversing the trial court and noting that it did not apply "the central criterion of Delaware Supreme Court jurisprudence: that the defendant must show overwhelming hardship if the case is to be dismissed"); Taylor, 689 A.2d at 1199 (holding that defendants "must establish with particularity that they will be subjected to overwhelming hardship and inconvenience if required to litigate in Delaware"). [10] See Taylor, 689 A.2d at 1198 (summarizing facts showing that the case had no connection to Delaware other than defendant's incorporation in Delaware). [11] See American Dredging Co. v. Miller, 510 U.S. 443, 455, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994). Thus, the fact that a plaintiff is not a Delaware resident may be relevant in a number of ways. For example, a foreign plaintiff may suffer less cost and prejudice from dismissal of the Delaware action than would a Delaware plaintiff who would have to refile in a jurisdiction foreign to him. See Ison, 729 A.2d at 845. [12] Chrysler First Business Credit Corp. v. 1500 Locust Limited Partnership, Del.Supr., 669 A.2d 104, 108 (1995). [13] See Williams Gas Supply Co. v. Apache Corp., Del.Supr., 594 A.2d 34, 37 (1991). [14] Id. (citing Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972)). [15] Compare Martin v. Vogler, N.D. Ill., 1993 WL 462853, at *3, Aspen, J. (Nov. 9, 1993) (dismissing action arising from car accident in favor of German forum, citing the risk of losing "key liability witnesses" including "Oliver Wieselhuber (the driver of the car...), Dr. Lorenz (the emergency room doctor...), Mr. Thielcke (a police vehicle expert...), and Officer Willer (the Ansbach police officer who prepared the accident report)") (emphasis added). [16] See States Marine Lines v. Domingo, Del. Supr., 269 A.2d 223, 226 (1970) ("The defendant may not prevail on this ground because it failed to particularize sufficiently the hardship it claims in this connection. It did not name the witnesses it deemed necessary to call; or demonstrate their number; or show their relationship to this case; or explain why their testimony could not be presented in Delaware by deposition."). [17] See Ison, 729 A.2d at 843 ("DuPont, as a party to the action, must make its current employees available for testimony...."). Warburg has not claimed any difficulties in this regard. [18] Compare Martin, 1993 WL 462853, at *3 (citing cost as a factor where parties were United States servicemen involved in a car accident in Germany). [19] See Hague Convention on Taking of Evidence Abroad in Civil and Commercial Matters, March 18, 1970, 23 U.S.T. 2555, 28 U.S.C. § 1781. This Court has recognized that Hague Convention procedures for accessing evidence place added burdens on parties. See Ison, 729 A.2d at 843 ("[T]hese circuitous routes to accessing evidence are somewhat cumbersome...."). [20] See Anglo American Ins. Group v. CalFed, Inc., S.D.N.Y., 940 F. Supp. 554, 565 n. 15 (1996) (noting that Hague Convention reservations with respect to pretrial discovery do "not affect depositions or interrogatories or the examination of documents for purposes other than pretrial discovery (i.e., for production as evidence at trial)"); cf. General Motors v. Lopez, E.D.Mich., 948 F. Supp. 656, 667-68 (1996) (noting that the difficulty with obtaining discovery from non-party German residents "must be weighed against the fact that broad pretrial discovery from named parties is permitted in American courts and is not permitted in German courts"). [21] See Taylor, 689 A.2d at 1199 ("An action may not be dismissed upon bare allegations of inconvenience without a particularized showing of the hardships relied upon."). [22] The parties agree that this case does not involve a view of any premises. [23] Ison, 729 A.2d at 838 (citation omitted). [24] The Superior Court's opinion states that "Delaware law may not apply in this action," a view not challenged by either party in this appeal. Letter Op. at 3. Warburg maintains on appeal that German law will apply, although in its motion to dismiss it stated that either German or British law applies. Schrapper has not conceded that German law applies. [25] Ison, 729 A.2d at 843; see generally id. at 844. See also Taylor, 689 A.2d at 1200 ("It is not unusual for courts to wrestle with open questions of the law of sister states or foreign countries. The application of foreign law is not sufficient reason to warrant dismissal under the doctrine of forum non conveniens.") (emphasis added). Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 91 L. Ed. 1055 (1947) (categorizing the choice of law issue as one of the "factors of public interest" and focusing on the difficulty the federal trial court would have "untangl[ing] problems in conflict of laws, and in law foreign to itself.") (emphasis added). [26] See Taylor, 689 A.2d at 1200 ("The application of foreign law is not sufficient reason to warrant dismissal under the doctrine of forum non conveniens."). [27] See Ison, 729 A.2d at 844-45. [28] Id. at 845. [29] See Chrysler First, 669 A.2d at 105; Williams Gas, 594 A.2d at 36. [30] Letter Op. at 3.

2013-10-30 06:32:43.831831+00

Brewster

535 S.W.2d 932 (1976) Mike QUALLS, Appellant, v. GRAHAM GENERAL HOSPITAL, Appellee. No. 17710. Court of Civil Appeals of Texas, Fort Worth. April 9, 1976. *933 Nagle, Taylor & Ewing and Al Taylor, Houston, for appellant. Jennings, Montgomery & Dies, Graham and Whitten, Sprain, Price, Wagner & Edwards and Marvin S. Sprain, Abilene, for appellee. OPINION BREWSTER, Justice. This suit for damages for personal injuries was filed by Mike Qualls, plaintiff, against Graham General Hospital and Dr. Frank Harmon, defendants. Plaintiff contended that the defendants committed acts of negligence during the course of an operation to reduce and plate a fracture to his leg which negligence proximately caused a non-union of the broken tibia in his leg and that this non-union resulted in injuries and damages to plaintiff. Before trial the plaintiff's suit against Dr. Harmon was settled and plaintiff's suit against the doctor was dismissed. When that settlement was made the defendant, Hospital, then filed a cross-action against Dr. Harmon for contribution and indemnity on the grounds that he was a joint tort feasor. A jury trial ended with the trial court rendering judgment to the effect that plaintiff take nothing by his suit against the Hospital and that the Hospital take nothing by virtue of its plea over and cross-action against Dr. Frank Harmon. This appeal is brought by the plaintiff, Qualls, from that decree. We affirm. Plaintiff's first point of error was that the trial court erred in overruling plaintiff's motion for new trial because the negative answer of the jury to Special Issue No. 1 is against the great and overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. In plaintiff's second point of error he makes the identical contention as to the jury's answer to Special Issue No. 7. We overrule plaintiff's first and second points of error. The duty of a Court of Civil Appeals in passing on the question of whether or not a jury finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust is set out in the case of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) as follows: "It is not infrequently described as a question of `sufficiency' of the evidence. See Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857; Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166. The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly *934 unjust—this, regardless of whether the record contains some `evidence of probative force' in support of the verdict. See cases cited, supra. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict." In reaching the decision that we have as to plaintiff's first two points of error we have considered and weighed all of the evidence in the case. The following facts were undisputed: on November 14, 1971, plaintiff was riding a bareback rodeo horse when the horse crashed into a fence; plaintiff's right leg was between the horse and the fence and his leg was broken below the knee; the tibia and fibula bones in that leg were both broken; he was taken to the Graham General Hospital where Dr. Frank Harmon performed an open reduction operation to set the bones; he made an incision, fitted the bones back together and used a small metal plate and screws to hold the bone fragments in place; the plate was made of a metal known as vitallium and so was one of the 5 screws used to screw the metal onto the broken bones; the other 4 screws used for that purpose were made of stainless steel; when this operation was scheduled the hospital brought an orthopedic rack or tent into the operating room which contained plates and screws, some being made of vitallium and some of stainless steel; these screws were only separated according to length and were not separated according to metals; when the surgeon would drill a hole in the bone he would measure the hole and call for a screw of the desired length; the nurse would then hand him such a screw inserted into a screw driver ready to be screwed into the bone; thereafter the fibula bone knitted but the tibia did not; four different operations were necessary in treating the leg and trying to get the tibia to knit; the failure of the tibia to knit ended up causing plaintiff much pain, some disability and shortness of the right leg and other damages. Special Issue No. 1 was: "Do you find from a preponderance of the evidence that the defendant hospital was negligent in having vitallium and stainless steel screws and plates mixed in the screw tent at the time of the operation in question?" The jury answered: "No." Issue No. 7 inquired: "Do you find from a preponderance of the evidence that the implanting of mixed metals in plaintiff's leg was a proximate cause of injury and damage to the plaintiff?" The jury answered No. 7 "No." The jury found in answer to Issue No. 3 that at the time of the operation Dr. Harmon's failure to observe and detect that different types of metal screws were being used to affix the plate to the fracture site was negligence and found in answer to Issue No. 4 that such negligence was not a proximate cause of the damages to plaintiff's leg. Patsy Parker, a nurse at defendant's hospital, testified: vitallium and stainless steel screws look different; the screw tent is provided for the doctor by the hospital; it had both stainless steel and vitallium bars and screws on it for the operating doctor; vitallium screws have a "V" implanted on the head; generally the operating doctor is captain of the ship (the boss) and nurses are instructed to do as he asks; some doctors bring their own bars and screws; the screw tent is set up about three feet from the doctor in the operating room; the vitallium and stainless steel screws are not separated according to metal, but are according to size; and often doctors go to the screw tent while operating and pick what they wish from it. Dr. Harmon testified: a fracture of the kind involved is inherently unstable; he installed in plaintiff's leg the vitallium plate, one vitallium screw and four stainless steel screws; he was aware of a possible danger of mixing the metals; he did not notice that the screws used were of two different metals; he was unaware that the metal appliances on the tray were mixed; you can readily tell the difference in the two metals by their color; he released plaintiff on March 13, 1972, at which time he was having a normal recovery; a delay *935 in union of a fracture, such as plaintiff had, can be caused by many factors other than a mixture of metals; soft tissue injuries and injury to the blood vessel supply to the bone can cause the delay in union; there will be a high percent of delayed unions and non-unions where the tibia is fractured in this area just in the natural course of things; there is a great difference of opinion as to whether mixing metals causes electrolysis. The hospital administrator, C. G. Young, testified: the nurses and hospital staff knew of a possible danger in mixing the metals, but since the two types of metal are so easily identified they felt there was no need to separate them; and it is up to the surgeon to call for the proper appliance. Dr. Richard Lambert, plaintiff's medical expert testified: he practices in San Diego, California; he is an orthopedic surgeon; his opinions here are based on hospital records, office records and notes of Dr. Harmon and Dr. Donnell, x-rays and the plate and screws involved; he did not treat plaintiff and saw him for the first time on the evening before the trial; the doctor usually calls for what he wants during an operation; the following can cause or contribute to cause a delay or non-union of a fracture such as plaintiff had: (1) infection; (2) severity of the injury itself; (3) circulatory impairment; (4) soft tissue injury; (5) segmentation of the bone; (6) distraction (bone ends being pulled away); (7) excess motion at the fracture; (8) badly fitting cast; (9) electrolysis from mixture of metals; (10) age of patients, and (11) for unknown reasons sometimes such fractures are delayed or fail to heal; in his opinion the non-union of plaintiff's tibia was caused from electrolysis due to the mixing of the metals. Dr. Ralph Donnell testified: he started treating plaintiff on April 18, 1972; he is an orthopedic surgeon; he operated on April 21, 1972, and removed the metal plate and screws; there was some discolored scar tissue at the fracture site; on October 18, 1972, he again operated and removed one inch of the fibula to try to get the tibia back together; vitallium plates and screws and stainless steel plates and screws are both acceptable to the medical profession; the hospital generally plays no part in the surgeon's decision as to which type metal to use in an operation of this type; the plate in plaintiff's leg had vitallium printed on it and the vitallium screw had a "V" stamped on the head of the screw; when he removed the plate he found one screw had been broken; his opinion is that it was broken by fatigue or strain and not due to electrolysis from mixing the metals; when both bones are broken the fibula usually heals first and this occurred in plaintiff's case; his opinion is that when the fibula healed first it held apart and prevented proper healing of the tibia; in his opinion electrolysis from mixing the metals did not cause plaintiff's troubles; in his opinion he would have had to perform all the operations he did perform on plaintiff regardless of the type of metals that were used by Dr. Harmon in reducing the fracture; the mixed metal was not the cause of the delay in the healing; plaintiff's problem with his leg was due to the failure of the fractured tibia to heal properly and that condition was not caused by a mixture of the metals; in his opinion none of the disability plaintiff had in his leg was caused by the mixture of the metals. In the case of O'Neill v. Craig, 493 S.W.2d 898 (Tex.Civ.App., Corpus Christi, 1973, ref., n. r. e.) the same questions involved here were raised. The court, at page 902 of the opinion, stated the following: "The jury is the sole judge of the facts and the circumstances proven. They may draw reasonable inferences and deductions from the evidence adduced before them. Insofar as there may be conflicts in the testimony of the witnesses, it is clear that the jury in the exercise of its prerogative, determines the credibility of the witnesses and the weight to be given their testimony. With all of the applicable principles of law in mind and after balancing the substantial evidence that supports the verdict against such evidence as is against the verdict, we do not find that the great weight and preponderance of the evidence requires a reversal of this case. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958); Couch v. Hale, 404 *936 S.W.2d 920 (Tex.Civ.App.—Corpus Christi 1966)." As stated, the jury found in answer to Issue No. 3 that Dr. Harmon was negligent in failing to observe that different type metals were being used in repairing plaintiff's leg. The jury in answer to Issue No. 1 found that a preponderance of the evidence did not show the hospital to be negligent in mixing the metals in the screw tent. The jury was justified in believing from the evidence that the doctor was in charge of the operation and that the hospital was not in charge of it; that the decision was the doctor's to determine what metals were to be used in repairing plaintiff's leg; and that he was negligent in using two different metals in reducing plaintiff's fracture. The jury apparently concluded that it was not the hospital's duty to tell the doctor which metals to use in the operation and that the hospital had performed its duty by furnishing to the doctor two metals that were medically approved for use in reducing fractures and which metals could readily be told apart merely by looking at them. The hospital placed the two metals there before the doctor for his use as he saw fit in performing the operation. After considering all of the evidence in the case we find and hold that the jury's answer to Special Issue No. 1 was not against the great weight and preponderance of the evidence. We recognize that before the plaintiff would be entitled to have the judgment appealed from reversed because of the contentions urged in his first and second points of error that he would have to be correct in the contentions he urges under both points. This is true because even if the overwhelming weight and preponderance of the evidence was to the effect that the hospital was negligent in having plates and screws made of both stainless steel and vitallium mixed in the hospital tent, plaintiff still could not win this case unless the implanting of the mixed metals in plaintiff's leg was a proximate cause of plaintiff's damages. The jury found against the plaintiff on both issues. Findings on both issues, Nos. 1 and 7, would have to be in plaintiff's favor in order for him to be entitled to a judgment. In his second point of error he contends that the jury's finding against him on the proximate cause issue (No. 7) was also so against the great weight and preponderance of the evidence as to be unjust. Whether or not the implanting of mixed metals in plaintiff's leg was a proximate cause of his injuries, as is inquired about in Issue No. 7, is a matter that the average layman would know nothing about. The answer to it would have to be determined from expert testimony. Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso, 1964, no writ hist.). Three witnesses in the trial fit into this category. One was Dr. Richard Lambert from San Diego, California, who saw the plaintiff for the first time on the evening before the trial. He testified that there are 11 different things that could cause or contribute to cause a delayed or non-union of a fracture such as the plaintiff had and that in his opinion the non-union in plaintiff's case was caused by electrolysis due to mixture of the metals. Dr. Frank Harmon reduced the fracture and implanted the mixed metals on November 14, 1971, and treated plaintiff from then until March 13, 1972. He testified that: a delay in union of bones can be caused by many factors; there is a great difference of opinion as to whether mixing the metals will cause electrolysis; with this particular type of break even in instances of the best possible treatment 22% to 35% of such cases will end in bad results; soft tissue injury is the main cause of problems such as plaintiff had. Dr. Ralph Donnell, an orthopedic surgeon, started treating plaintiff on April 18, 1972; he performed several operations in treating the leg; in his opinion plaintiff's trouble was caused by the fact the fibula healed first and held the ends of the tibia apart and thus prevented proper healing of the *937 tibia; electrolysis did not cause plaintiff's damages; the mixed metals did not cause the delay in healing and did not cause any of plaintiff's disability. The opinions of Dr. Donnell and Dr. Harmon on the proximate cause question conflicted with the opinion of the California doctor, Dr. Lambert, and the jury chose to believe Dr. Harmon and Dr. Donnell. Generally where testimony on an issue is in conflict the jury's function is to pass on the credibility of the witnesses and to determine the facts. Opinions of medical experts, even when uncontradicted, are not conclusive and only present fact issues for the determination of the fact finder. Bond v. Snow, 422 S.W.2d 842 (Tex.Civ.App., Eastland, 1967, affirmed in 438 S.W.2d 549). And in the case of Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ.App., Texarkana, 1974, ref., n. r. e.) the court said at page 496: "In judging the accuracy of a medical witness' testimony and the weight to be given it, the jury may consider the type and thoroughness of the examination made by him and the degree of attention given by him to the matter, as well as the witness' skill and experience and his manner and attitude in testifying.... If the opinions of the expert do not comport with the jurors' ideas of sound logic, they may act accordingly." We hold that the jury's answer to Issue No. 7 is not so against the great weight and preponderance of the evidence as to be unjust. Plaintiff's third point of error was that the trial court erred in overruling his motion for new trial because there was material jury misconduct of such a nature as to clearly indicate that the verdict was not based on a preponderance of the evidence, but on matters outside the record, untrue, wholly irrelevant and highly prejudicial to plaintiff's right to a fair trial. Rule 327, T.R.C.P. provides: "Where the ground of the motion (for new trial) is misconduct of the jury ... the court shall hear evidence thereof ... in open court, and may grant a new trial if such misconduct proved ... be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party." Although the point of error does not specify any of the claimed misconduct, plaintiff in his brief argues that it consisted of the following: (1) the juror, Young, during deliberations bent a piece of paper into the shape of a tent in order to demonstrate to another juror the shape of a screw tent and, (2) the jurors apparently agreed all around that Issue No. 7 should be answered "No" unless the mixing of the metals was "due to the negligence of Graham General Hospital." Our review of the evidence presented at the hearing of the motion for new trial convinces us that Mr. Young, by bending the paper into the shape of a tent, in no way prejudiced plaintiff because the evidence in the trial had clearly demonstrated the things that Young indicated to the jury by bending the paper. Jurors Creswell and Mrs. Bowden testified in substance that Mrs. Wise, the forelady on the jury, and the juror Young, both stated during deliberations that in considering Issue No. 7 that the jury should add into it the words "due to the negligence of Graham General Hospital". The jurors, Young and Mrs. Wise, testified that no such thing occurred and that there was no agreement between the jurors that Issue No. 7 should be answered "No" unless the mixing of the metals was due to the negligence of the hospital. Where the evidence is conflicting on an issue of jury misconduct the trial court's decision thereon will be taken as final on appeal, unless a clear abuse of discretion appears. Murphy v. Davis, 305 S.W.2d 218 (Tex.Civ.App., Beaumont, 1957, no writ hist.); Texas Employers' Insurance Ass'n v. Logsdon, 278 S.W.2d 893 (Tex.Civ.App., San *938 Antonio, 1955, ref., n. r. e.); United States Fidelity & Guaranty Co. v. Turner, 390 S.W.2d 302 (Tex.Civ.App., Texarkana, 1965, ref., n. r. e.), and Goates v. Ingram, 386 S.W.2d 654 (Tex.Civ.App., Eastland, 1965, ref., n. r. e.). We hold that there was no abuse of discretion here. Testimony was offered during the trial of the case that: (1) if a mistake was made in the operating room the blame is on the doctor and not on the nurse; (2) the defendant hospital is supported by the taxpayers of the City of Graham; (3) the taxpayers had already paid plaintiff's medical bills; and that (4) plaintiff has settled with Dr. Harmon. There was evidence introduced at the hearing of the motion for new trial that at some time during the jury deliberations the matters just referred to were mentioned by one or more jurors. As stated, there was evidence in the trial tending to establish each of those matters and some of it was introduced by the plaintiff. When a juror mentioned the fact that the plaintiff had settled with the doctor, the forelady, Mrs. Wise, promptly told the juror that the amount of that settlement had nothing to do with what the jury had to decide and that they should not discuss that. We hold that the record in this case does not reflect any material jury misconduct that probably resulted in injury to the plaintiff. The judgment is affirmed.

2013-10-30 06:32:43.832261+00

Eldridge

774 A.2d 387 (2001) 364 Md. 499 David I. FARRELL v. STATE of Maryland No. 33, September. Term, 2000. Court of Appeals of Maryland. June 22, 2001. *388 Benjamin J. Woolery (Richard M. McGill, on brief), Upper Marlboro, for petitioner. Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,[*] RAKER, WILNER, CATHELL and HARRELL, JJ. ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this criminal case to determine whether the retrial of the defendant would violate the prohibition against double jeopardy on the ground that the defendant had previously been acquitted of the same offenses. I. David I. Farrell was initially charged by citations numbered OU396860 and OU396861 in the District Court of Maryland, Prince George's County, with exceeding the maximum speed limit and negligent driving in violation of Maryland Code (1977, 1999 Repl.Vol), §§ 21-801.1 and 21-901.1 of the Transportation Article. The case was set for trial on November 19, 1998, and, on that date, the case was called in open court before Judge Josef Brown. Farrell appeared with his attorney and entered a plea of not guilty. After no witnesses appeared on behalf of the State, Judge Brown found Farrell "not guilty" and entered judgment to this effect. The State filed no motions or other documents in the citation case after the not guilty verdicts. Twenty-eight days later, on December 17, 1998, the State instituted a new prosecution by filing in the District Court, Prince George's County, a second set of identical charges against Farrell by criminal information (MV Numbers S090785 and S090786). On January 27, 1999, Farrell, by his attorney, filed a motion to dismiss on the ground that the new charges were barred under established double jeopardy principles. A hearing on the motion to dismiss took place on February 25, 1999, before Judge Patrice E. Lewis of the District Court. Documentary evidence was presented to the court showing that the offenses charged under MV Numbers S090785 and S090786 had previously been charged by traffic citations OU396860 and OU396861, had been called for trial on November 19, 1998, and had resulted in not guilty verdicts. The assistant state's attorney representing the State acknowledged that he had listened to the tape of the November 19, 1998, proceeding, and he conceded that "not guilty" verdicts were rendered on the identical charges at that time. The State, however, argued that the new charges should not be dismissed on double jeopardy grounds because there was a good reason why no witnesses appeared for the State at the trial on November 19, 1998. The assistant state's attorney represented that, in early November 1998, the State had requested a postponement of the November *389 19th trial date and that the State had been informed that the trial had been postponed. According to the assistant state's attorney, the police officer and other witnesses were not present at the November 19th trial because they believed that the trial had been postponed.[1] The District Court held that, regardless of what the State had been told concerning a postponement, the not guilty verdicts rendered on November 19, 1998, required the dismissal of the new charges. The District Court dismissed the second set of charges, with prejudice, on the ground of double jeopardy. The State appealed the dismissal to the Circuit Court for Prince George's County, pursuant to Maryland Code (1974, 1998 RepLVoL), §§ 12-401(b)(l)(ii) and 12-401(c) of the Courts and Judicial Proceedings Article and Maryland Rule 7-102.[2] After receiving legal memoranda, the Circuit Court reversed the judgment of the District Court and ordered that the criminal information charges of exceeding the maximum speed limit and negligent driving be reinstated and that the case be remanded for a trial. Farrell filed in this Court a petition for a writ of certiorari which we granted. Farrell v. State, 359 Md. 333, 753 A.2d 1031 (2000). Farrell argues that, under settled double jeopardy principles, the not guilty verdicts rendered on November 19, 1998, barred a subsequent prosecution for the identical offenses. He invokes both the double jeopardy prohibition of the Fifth Amendment to the United States Constitution and Maryland's common law double jeopardy prohibition. In connection with the double jeopardy prohibition under Maryland common law, Farrell particularly relies on Daff v. State, 317 Md. 678, 566 A.2d 120 (1989). The State asserts that, because it had been granted a postponement, the original charges were called for trial on November 19, 1998, as a result of a "clerical error" committed by the clerk's office of the District Court. Thus, according to the State, the prosecution had no opportunity to *390 present evidence at the November 19th "trial." Consequently, the State's argument continues, jeopardy did not attach at the November 19th proceeding, and the filing of subsequent identical charges did not place Farrell in "double jeopardy." II. As this Court has pointed out on a multitude of occasions, the double jeopardy prohibition protects a criminal defendant from successive prosecution as well as cumulative punishment for the same offense. It is applicable to criminal prosecutions in this State by virtue of the Fifth and Fourteenth Amendments to the United States Constitution and Maryland common law. See, e.g., Ware v. State, 360 Md. 650, 708, 759 A.2d 764, 794-795 (2000); Jones v. State, 357 Md. 141, 156-157, 742 A.2d 493, 501 (1999); Gianiny v. State, 320 Md. 337, 347, 577 A.2d 795, 800 (1990); Middleton v. State, 318 Md. 749, 756, 569 A.2d 1276, 1279 (1990); Daffv. State, supra, 317 Md. at 683, 566 A.2d at 122; Wright v. State, 307 Md. 552, 561-562, 515 A.2d 1157, 1162 (1986); Brooks v. State, 299 Md. 146, 154-155, 472 A.2d 981, 986 (1984); Ward v. State, 290 Md. 76, 81, 427 A.2d 1008, 1011 (1981); Block v. State, 286 Md. 266, 268, 407 A.2d 320, 321 (1979); Parojinog v. State, 282 Md. 256, 260, 384 A.2d 86, 88 (1978); Pugh v. State, 271 Md. 701, 704-705, 319 A.2d 542, 544 (1974). "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that `[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.'" United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 651 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896). See, e.g., Smalis v. Pennsylvania, 476 U.S. 140, 144-145 n. 7, 106 S. Ct. 1745, 1748 n. 7, 90 L. Ed. 2d 116, 121 n. 7 (1986) ("The status of the trial court's judgment as an acquittal is not affected by the Commonwealth's allegation that the court" ..."`erroneously] interpret[ed] ... [a] governing legal principle'") (pitation omitted); Arizona v. Rumsey, 467 U.S. 203, 211, 104 S. Ct. 2305, 2310, 81 L. Ed. 2d 164, 171 (1984) ("In making its findings, the trial court relied on a misconstruction of the statute ..., [however], [r]eliance on error of law, ... does not change the double jeopardy effects of a judgment that amounts to an acquittal ..."); United States v. Scott, 437 U.S. 82, 98, 98 S. Ct. 2187, 2197, 57 L. Ed. 2d 65, 79 (1978) ("the fact that `the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles,' ... affects the accuracy of that determination, but it does not alter its essential character"); Sanabria v. United States, 437 U.S. 54, 78, 98 S. Ct. 2170, 2186, 57 L. Ed. 2d 43, 63 (1978) ("The trial court's rulings here led to an erroneous resolution in the defendant's favor on the merits of the charge. As Fong Foo v. United States, makes clear, the Double Jeopardy Clause absolutely bars a second trial in such circumstances"); Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629, 631 (1962) (a defendant acquitted at trial may not be retried for the same offense, even if the legal rulings underlying the acquittal were clearly erroneous); Daff v. State, supra, 317 Md. at 684, 566 A.2d at 123 ("Once a trial judge has intentionally rendered a verdict of not guilty, a subsequent change of mind is prohibited"); Block v. State, supra, 286 Md. at 273 274, 407 A.2d at 324 (1979) ("an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality. Instead, as long as the court rendering a not-guilty verdict has jurisdiction over the offense, the verdict is *391 a bar to further criminal proceedings on the same charge"). As previously indicated, Farrell relies on both the Double Jeopardy Clause of the Fifth Amendment and the Maryland common law double jeopardy prohibition. We shall hold that the District Court correctly dismissed the new charges under Maryland's common law prohibition against double jeopardy. Therefore, consistent with our "established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground,"[3] we shall not reach the issue of whether the Fifth and Fourteenth Amendments also required the dismissal of the charges.[4] In holding that an intentionally rendered verdict of "not guilty" is final and precludes, under Maryland common law, any further prosecution for the same offense, this Court in Pugh v. State, supra, 271 Md. at 705, 319 A.2d at 544, stated: "From the earliest days, it has been clear that once a verdict of not guilty has been rendered at the conclusion of a criminal trial, that verdict is final and cannot be set aside. Any attempt to do so by the prosecutor is barred by what at common law was the plea of autrefois acquit. Thus, in State v. Shields, 49 Md. 301, 303 (1878), our predecessors declined to construe a statute as permitting the State to appeal a verdict of acquittal, saying: 'It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, on the application of the prosecutor ... be set aside....' "The Court in Shields went on to point out that it made no difference whether the acquittal was based on a mistake of law or a mistake of fact. See also State v. Adams, 196 Md. 341, 348, 76 A.2d 575 (1950); Cochran v. State, 119 Md. 539, 544, 87 A. 400 (1913); State v. Campbell and Reeves, supra, 7 Md. App. [538] at 540-541, [256 A.2d 537, 538-539 (1969)]." The common law principle applied in Pugh v. State, supra, 271 Md. 701, 319 A.2d 542, and State v. Shields, supra, 49 Md. 301, has been reiterated by this Court on numerous occasions. See, e.g., State v. Ghajari, 346 Md. 101, 109, 695 A.2d 143, 146 (1997) ("a not guilty verdict may not be disturbed or revised by any Maryland court ... if [the] verdict of not guilty has been intentionally rendered by a court"); Wright v. State, supra, 307 Md. at 562-563, 515 A.2d at 1162 (the grant of a motion for judgment of acquittal, after the prosecution's case, precludes further trial *392 proceedings and conviction for the same offense); Brooks v. State, supra, 299 Md. at 155, 472 A.2d at 986 ("Once a trial judge intentionally acquits a defendant of a criminal offense over which the court has jurisdiction, the prohibition against double jeopardy does not permit him to change his mind. The grant of the motion for judgment of acquittal was a bar to further criminal proceedings on the same charge"); Block v. State, supra, 286 Md. at 273-274, 407 A.2d at 324 ("the fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes. The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality. Instead, as long as the court rendering a notguilty verdict has jurisdiction over the offense, the verdict is a bar to further criminal proceedings on the same charge"). As argued by Farrell's counsel, this Court's decision in Daff v. State, supra, 317 Md. 678, 566 A.2d 120, is directly on point. The defendant Daff had been charged in the District Court of Maryland with assault and battery of two persons, and, upon Daff s request for a jury trial, the case was transferred to the Circuit Court for Anne Arundel County. Trial in the Circuit Court was scheduled for September 4, 1987. When the case was called for trial on September 4th, none of the prosecution's witnesses were present. The assistant state's attorney handling the prosecution stated that requests for the issuance of subpoenas for the witnesses had been given to the clerk of the court but that for some reason the subpoenas had not been issued. The prosecuting attorney requested a postponement of the trial. The court denied the request for postponement and suggested that the State nol pros the charges. The prosecuting attorney, however, refused to nol pros the two charges. The court thereupon rendered not guilty verdicts on both charges. About two months later, the State filed a bill of information in the Circuit Court for Anne Arundel County charging Daff with the identical assault and battery offenses. The Circuit Court granted Daff s motion to dismiss the information on double jeopardy grounds. Upon the State's appeal, the Court of Special Appeals reversed on the theory that jeopardy had not attached when the not guilty verdicts were entered and that, therefore, the prosecution was free to renew the charges. This Court reversed the judgment of the Court of Special Appeals and directed that the trial court's dismissal on double jeopardy grounds be affirmed. In holding that the not guilty verdicts barred any subsequent prosecution for the same offenses, Judge McAuliffe for the Court in Daff reviewed the prior Maryland cases and other authorities (317 Md. at 684-685, 566 A.2d at 123-124): "The principle embodied in the plea of autrefois acquit has been broadly interpreted. A verdict of not guilty, even though not followed by a judgment on the docket, is sufficient to invoke the protection. Pugh v. State, supra, 271 Md. at 706-07, 319 A.2d 542. Once a trial judge has intentionally rendered a verdict of not guilty, a subsequent change of mind is prohibited even though the judge may be convinced, even moments later, that the verdict was erroneous. Id. at 707, 319 A.2d 542; Brooks v. State, supra, 299 Md. at 155, 472 A.2d 981. The court entering the acquittal must have basic subject matter jurisdiction, but procedural errors will not affect the efficacy of the acquittal for jeopardy purposes. 2 Hawkins, Pleas of the Crown 521 (8th ed. 1824); 2 Hale's Pleas of the Crown, 247 (1st Am.Ed. 1847). See Block v. State, supra, 286 Md. at 273-74, 407 A.2d 320 (improper *393 or defective exercise of jurisdiction does not deprive an acquittal of its finality); Parojinog v. State, 282 Md. 256, 384 A.2d 86 (1978) (although juvenile judge lacked authority under the statute and rules to enter a verdict when he did, the verdict is final for jeopardy purposes because the court had subject matter jurisdiction and jurisdiction over the respondent). An acquittal entered after trial on a fatally defective indictment is nevertheless effective to bar a subsequent prosecution for the same offense if the court had jurisdiction of the cause and of the party. * * * "In the instant case, the Circuit Court for Anne Arundel County had jurisdiction over the subject matter and over the defendant. The case had been called for trial, and the State's request for a postponement had been denied. If we assume that the trial judge erred in denying the State's request, or even that the judge was not the designee of the administrative judge authorized by the rules to grant a postponement, neither of these matters would affect the finality of an acquittal thereafter entered on the ground of insufficiency of the evidence." The State in Daff, like the State in the case at bar, argued that, because no evidence had been presented and no witnesses had been sworn, jeopardy had not attached, and that, therefore, the filing of new charges was not "double jeopardy." This Court pointed out that the issue of whether jeopardy had attached, in the sense of the presentation of evidence or the swearing of witnesses, has no relevance to the finality of an acquittal under common law principles (317 Md. at 688-689, 566 A.2d at 125-126): "The language relied upon by the State in connection with the question of when jeopardy attaches has largely evolved from cases dealing with mistrials or terminations other than by verdicts of guilty or not guilty. See, e.g., Crist v. Bretz, supra [437 U.S. 28, 98 S. Ct. 2156, 57 L.E.2d 24(1978)]; Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975). Even under that line of cases, it is far from clear that the Supreme Court would hold that jeopardy had not attached in the instant case, within the meaning of the former acquittal protection of the Fifth Amendment. * * * "In any event, we reach the same conclusion under our interpretation of the common law of double jeopardy as it exists in this State. The plea of autrefois acquit was available when an acquittal followed a trial. It made no difference that the State's evidence may have been woefully deficient at that trial. Indeed, one may assume that the acquittal usually reflected the inadequacy of the State's case. We think the defense is no less available when the State's case has been completely deficient than when the State's case has been only partially deficient." In the present circumstances, as in Daff, the trial court had jurisdiction over the offenses and over the defendant, and the trial court intentionally rendered not guilty verdicts. Under settled Maryland common law principles, the acquittals were final, and the State was precluded from bringing a new prosecution charging the same offenses. JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY REVERSED, AND CASE RMANDED TO THAT COURT WITH DRECTIONS TO AFFIRM THE JUDMENT OF THE DISTRICT COURT OF *394 MARYLAND. PRINCE GEORGE'S COUNTY TO PAY THE COSTS. NOTES [*] Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the constitution, Article IV,Section 3A, he also participated in the decision and adoption of this opnion. [1] No documentary evidence was presented at the hearing on February 25, 1999, showing that the November 19, 1998, trial date had been postponed. Furthermore, the record before this Court contains no indication, beyond the State's representations, that the trial date was postponed. Nonetheless, our decision in this case is not dependent upon whether the State was informed that the trial date was postponed. [2] Section 12-401(b) and (c) of the Courts and Judicial Proceedings Article states: "§ 12-401. Right of appeal generally. * * * (b) Criminal cases.—In a criminal case: (1) The State may appeal from a final judgment entered in the District Court: (i) If the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code; or (ii) Granting a motion to dismiss, or quashing or dismissing a charging document. (2) The defendant may appeal even from a final judgment entered in the District Court though imposition or execution of sentence has been suspended, (c) Criminal appeal.—Notwithstanding any other provision of law, an appeal taken under subsection (b)(l)(ii) of this section shall be: (1) To the circuit court solely for the purpose of reviewing the judgment of the District Court; and (2) Heard on the record made in the District Court." Rule 7-102 provides in pertinent part as follows: "(a) On the record. An appeal shall be heard on the record made in the District Court in the following cases: * * * (5) an appeal by the State from a judgment quashing or dismissing a charging document or granting a motion to dismiss in a criminal case." [3] Telnikoffv. Matusevitch, 347 Md. 561, 578-579 n. 15, 702 A.2d 230, 239 n. 15 (1997). See, e.g., McCarter v. State, 363 Md. 705, 712-713, 770 A.2d 195, 199 (2001); Becker v. State, 363 Md. 77, 92, 767 A.2d 816, 823-824 (2001); Baltimore Sun v. Mayor and City Council of Baltimore, 359 Md. 653, 659, 755 A.2d 1130, 1133-1134 (2000); Harryman v. State, 359 Md. 492, 503 n. 6, 754 A.2d 1018, 1024 n. 6 (2000); Ashford v. State, 358 Md. 552, 561, 750 A.2d 35, 40 (2000); Thrower v. State ex rel. Bureau of Support Enforcement, 358 Md. 146, 149 n. 2, 747 A.2d 634, 636 n. 2 (2000), and cases there cited. [4] By not reaching the federal constitutional issue, we do not suggest that the result would be different under the Fifth and Fourteenth Amendments. We are merely making it clear that our decision is based exclusively upon Maryland common law. See, e.g., Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201, 1214 (1983); Frankel v. Board of Regents, 361 Md. 298, 313-314 n. 3, 761 A.2d 324, 332 n. 3 (2000), and cases there cited.

2013-10-30 06:32:43.836163+00

Herlong

955 F. Supp. 560 (1997) Eddie Forest DODGENS, Plaintiff, v. The KENT MANUFACTURING COMPANY, Defendant. CA No. 8:95-2180-20AK. United States District Court, D. South Carolina, Anderson Division. February 20, 1997. *561 *562 Edwin L. Turnage, Travelers Rest, SC, for plaintiff. Andreas N. Satterfield, Jr. and Ellison F. McCoy, Greenville, SC, for defendant. ORDER HERLONG, District Judge. This matter is before the court with the Report and Recommendation of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b) and Local Rule 19.02 DSC. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. *563 549, 46 L. Ed. 2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1). The plaintiff, Eddie Forest Dodgens ("Dodgens"), alleges causes of action pursuant to the Americans with Disabilities Act of 1990 ("ADA"), the Family and Medical Leave Act of 1993 ("FMLA"), breach of contract, breach of implied covenant of good faith and fair dealing, and breach of contract accompanied by a fraudulent act. The defendant, Kent Manufacturing Company ("Kent"), filed a motion for summary judgment. In his Report and Recommendation, United States Magistrate Judge William M. Catoe, Jr. recommends granting summary judgment on all claims except Dodgens's claim pursuant to the FMLA. Each party filed objections to the portions of the Report and Recommendation that were adverse to them. Dodgens is a former employee of Kent. At the time of his termination, Dodgens was a third-shift supervisor in the drawing department. His responsibilities included overseeing two pin-drafter operators and two roving machine operators. Basically, Dodgens was supposed to inform the operators as to which material they were to use and to monitor them to ensure that the material was blended properly. Kent contends that six months prior to his termination, Dodgens was confronted about weighing and blending problems that had occurred under his supervision. Approximately two months prior to his termination, Dodgens underwent knee surgery and took a six-week medical leave. During his leave, Dodgens was contacted twice by the plant manager, Johnny Miller ("Miller"), who requested Dodgens to take a demotion when he returned. Kent contends that Miller contacted Dodgens because the drawing department which Dodgens used to supervise was "running the best it had run" under David Griggs's supervision. Dodgens refused the demotion and remained on medical leave until his doctor certified that he could return to work. On his second day back at his previous position, Dodgens's supervisor, Jamie Anthony ("Anthony"), informed Dodgens that management was watching him and that he would be fired for any mistakes. Shortly thereafter, a blending error occurred which was caught by Anthony. A second error occurred the following day. The error involved improper mixing of materials and ultimately caused Kent to suffer a loss ranging from five thousand one hundred forty three dollars ($5,143) to twelve thousand six hundred dollars ($12,600). The specific amount is contested by the parties. As a result of this error, Dodgens and one of the operators under his supervision were terminated. This action followed. ADA CLAIM Title I of the ADA prohibits an employer from discriminating against a qualified individual with a disability. In Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir.1995), the Fourth Circuit Court of Appeals set forth the elements of an ADA claim. To establish a prima facie case under the ADA, the plaintiff must prove by a preponderance of the evidence that: (1) he was in a protected class; (2) he was discharged; (3) at the time of the discharge, he was performing his job at a level that met his employer's legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Id. at 58. Applying the appropriate summary judgment standard, Magistrate Judge Catoe correctly found that Dodgens cannot show he is a member of the protected class. To be a member of the protected class, Dodgens must show that he has a disability. An individual suffers from a disability if he has a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(A). The regulations define "physical or mental impairment" as "[a]ny physiological disorder, or condition ... affecting one or more of" various body systems. 29 C.F.R. § 1630.2(h)(1). "Major life activities" are defined as "caring for oneself, *564 performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Dodgens claims that his knee injury substantially limits his major life activity of walking. The court disagrees. According to Dodgens's doctor, his disability rating is only fifteen percent. Dodgens's orthopaedist stated that he is able to walk in substantially the same manner as the average person and that he is not significantly restricted in any way in his ability to walk. Furthermore, the interpretive guidelines of the ADA provide that an individual who, as a result of a physical impairment, can walk only at a moderately below-average speed is not substantially limited in the major life activity of walking. 29 C.F.R. § 1630.2(j) app. at 340; see also Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D.N.C.1994) (finding that a tear of the medial meniscus in the knee, the exact same injury suffered by Dodgens, did not constitute a disability under the ADA). Therefore, Dodgens has failed to produce sufficient evidence to withstand the motion for summary judgment on his ADA claim. FMLA CLAIM The FMLA provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition. 29 U.S.C. § 2612(a)(1)(D); see 29 C.F.R. § 825.100. In general, the FMLA entitles eligible employees (1) to take up to twelve weeks of unpaid leave in qualifying situations, (2) to the right to maintain health benefits and other employment-related benefits while on leave, and (3) to the right to be reinstated to their previous position or an equivalent position at the end of the leave. 29 U.S.C. §§ 2612, 2614. The FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any of these rights. 29 U.S.C. § 2615(a)(1). In this case, it is undisputed that Dodgens was permitted to take leave until being certified to return to work without restrictions by his doctor, that he was allowed to maintain his medical benefits and other company benefits while on leave, and that he was reinstated to the position that he held when the leave commenced. (Pl.'s Dep. at 119.) Despite these facts, Dodgens first contends that Miller, as an employee of Kent, unlawfully interfered with his rights under the FMLA by calling him twice and requesting that he take a demotion. Second, Dodgens asserts that Kent interfered with his FMLA rights by failing to provide him with literature describing the benefits and leave rights guaranteed by the FMLA. Kent admits that, pursuant to the FMLA, it failed to provide an explanation of the FMLA in its handbook and failed to inform Dodgens of his FMLA leave rights when a request for leave was made. (Def.'s Reply Mem. at 13); see 29 C.F.R. § 825.301(a)(1); 29 C.F.R. § 825.301(b)(1). The FMLA regulations issued by the Department of Labor state that the terms "interfering with" the exercise of an employee's rights under the FMLA would include violating the FMLA, refusing to authorize FMLA leave, discouraging an employee from taking FMLA leave, and manipulating the work force to avoid responsibilities under the FMLA. 29 C.F.R. § 825.220(b). As an administrative agency, the Department of Labor's construction of the statute is entitled to "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945). The court finds that the Department of Labor's interpretation of the terms "interfering with" is not plainly erroneous or inconsistent with the regulation. As such, Dodgens's claim that his FMLA rights were "interfered with" when Miller called him twice during his medical leave and requested that he take a demotion does not state a cognizable claim under the FMLA. Therefore, as to this specific allegation, Dodgens's claim fails as a matter of law. Kent has clearly violated the FMLA by failing to explain the FMLA benefits and leave rights to Dodgens in its employee handbook or at the time Dodgens requested leave. As 29 C.F.R. § 825.220(b) states, a *565 violation of the FMLA constitutes interference with FMLA rights. In this case, however, the court would be elevating form over substance to permit this claim to go forward in light of the fact that Dodgens received all of the leave benefits that he was guaranteed pursuant to the FMLA. Accordingly, the court awards summary judgment to Kent on this specific allegation as well. Dodgens's third claim under the FMLA is that he was terminated for exercising his right to take medical leave. The magistrate judge concluded that, in this situation, the FMLA provides a cause of action for retaliatory discharge. The magistrate judge also determined that a genuine issue of material fact existed concerning Dodgens's termination in the context of his FMLA claim. See (Mag. Judge's Rep. & Rec. at 9-10.) The issue of material fact that concerned the magistrate judge was whether Dodgens's termination was a result of his having taken medical leave. (Mag. Judge's Rep. & Rec. at 11.) The FMLA contains two provisions that prevent retaliation by employers. First, § 2615(a)(2) provides that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). Second, § 2615(b) provides the following prohibition: It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual — (1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter; (2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or (3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter. 29 U.S.C. § 2615(b). Even though neither section specifically refers to retaliatory discharge for receiving FMLA leave, 29 C.F.R. § 825.220(c) interprets these sections as providing that "[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave." "[E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions." Id. Therefore, Dodgens has a cause of action for retaliatory discharge. Having determined that the FMLA provides a cause of action based on retaliatory discharge for receiving FMLA leave, the court is faced with determining what a plaintiff must prove in order to prevail under this claim. In Oswalt v. Sara Lee Corp., 889 F. Supp. 253 (N.D.Miss.1995), the district court held: Although there are no set guidelines to establish a prima facie case for wrongful termination under the FMLA, the court finds that ... [t]he plaintiff must produce evidence that he or she is protected under the FMLA, that he or she suffered an adverse employment decision, and either that the plaintiff was treated less favorably than an employee who had not requested leave under the FMLA or that the adverse decision was made because of the plaintiff's request for the leave. Id. at 259. In McCown v. UOP, Inc., No. 94 C 2179, 1995 WL 519818 (N.D.Ill. Aug. 30, 1995) (unpublished), the district court addressed the plaintiff's claim of denial of her FMLA rights and wrongful discrimination and interference with her FMLA rights. The district court stated: Because the FMLA took effect only two years ago, there is only one reported decision in a case in which the plaintiff was discharged after requesting (and receiving) leave under the FMLA. Oswalt v. Sara Lee Corp., [889 F. Supp. 253 (N.D.Miss. 1995), aff'd., 74 F.3d 91 (5th Cir.1996)]. As a result, there is no precedent regarding the analysis to be employed on summary judgment in cases brought under the FMLA. However, UOP proposes that we use the analysis that has been developed in Title VII and age discrimination cases, and *566 we agree that it is the appropriate analysis here. Id. at *4. The district court used the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). However, the court relied on the Seventh Circuit's law of sex discrimination rather than retaliatory discharge to determine what elements the plaintiff had to show in order to make out a prima facie case under the FMLA. McCown, 1995 WL at *4. In Urbano v. Continental Airlines, Inc., No. CIV.A. H-95-3508, 1996 WL 767426 (S.D.Tex. Nov. 1, 1996) (unpublished), the district court found that: As to the retaliatory discharge claim, the FMLA makes it unlawful for an employer "to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2915(a)(2). As to the elements of proof, the FMLA provides that "[n]othing in this Act ... shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of [protected classifications]." 29 U.S.C. § 2615(a). Thus, the Court assumes that the analysis used in Title VII retaliatory discharge claims also applies to Plaintiff's FMLA claim. Id. at *4. The district court went on to list the elements of a prima facie case of retaliatory discharge under Title VII in the Fifth Circuit. The United States Court of Appeals for the Fourth Circuit has not addressed this issue, but the court is persuaded by Oswalt and Urbano. Accordingly, if Dodgens has a cognizable claim pursuant to the FMLA, then the appropriate analysis for retaliatory discharge under the FMLA is that provided in Title VII for retaliatory discharge. To prove a prima facie case of retaliatory discharge in violation of Title VII, an employee must show that: "1) the employee engaged in protected activity; 2) the employer took adverse employment action against the employee; and 3) a causal connection existed between the protected activity and the adverse action." Egbuna v. Time-Life Libraries, Inc., 95 F.3d 353, 355 (4th Cir.1996). Viewing the facts in the light most favorable to the plaintiff, the court finds that Dodgens is unable to satisfy the third element of a prima facie case of retaliatory discharge. During Dodgens's twenty-two years of employment with Kent, he took at least fifteen leaves of absence, ranging in length from a few days to three months. (Pl.'s Dep. at 85-95.) In addition, from the date of the enactment of the FMLA in August, 1993, until the date that Kent's motion for summary judgment was filed, Kent has granted at least one hundred twenty-nine FMLA leaves of absence and, in each case, has reinstated the employee to his or her position in accordance with the terms of the FMLA. (Miller Aff. ¶ 4.) Also, during that same time period, Kent granted at least sixty-four leaves of absence to employees who did not qualify for leave under the FMLA. (Miller Aff. ¶ 5.) Therefore, the court concludes that, on the facts of this case, a reasonable jury would be unable to find that a causal connection existed between Dodgens's medical leave and his termination. Consequently, the court finds that Dodgens has failed to raise a genuine issue of material fact regarding retaliatory discharge for receiving FMLA leave and that summary judgment is appropriate on this claim. BREACH OF CONTRACT CLAIMS Dodgens also claims that Kent breached his employment contract that was created by an employee handbook. South Carolina courts recognize that either party may terminate the employment, at any time, for any reason or no reason at all, without incurring liability. Culler v. Blue Ridge Elec. Co-op., Inc., 309 S.C. 243, 422 S.E.2d 91, 92 (1992). However, an employer may alter an employee's at-will status by establishing mandatory policies that constitute an implied contract. Small v. Springs Indus., Inc., 292 S.C. 481, 357 S.E.2d 452, 454-55 (1987). Dodgens claims that the Kent employee handbook has altered his at-will status by creating an implied contract. After reviewing the record, the court finds that, viewing the evidence in the light most favorable to Dodgens, Kent did not alter his *567 at-will status with its employee handbook. Therefore, the court grants Kent summary judgment on this issue. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING AND BREACH OF CONTRACT ACCOMPANIED BY A FRAUDULENT ACT In every contract, including employment contracts, there is an implied covenant of good faith and fair dealing. Shelton v. Oscar Mayer Foods Corp., 319 S.C. 81, 459 S.E.2d 851 (Ct.App.1995). As the magistrate judge correctly points out, however, a cause of action for breach of an implied covenant of good faith and fair dealing cannot be recognized absent proof of an underlying contract. Similarly, breach of contract accompanied by a fraudulent act also requires proof of an underlying contract. In light of the court's previous finding, summary judgment must also be granted on both of these claims. Accordingly, for the foregoing reasons, it is ORDERED that Kent's motion for summary judgment is granted as to all claims. IT IS SO ORDERED.

2013-10-30 06:32:45.393125+00

Dice

335 S.W.2d 603 (1960) Samuel Malcolm JAMES, Appellant, v. STATE of Texas, Appellee. No. 31912. Court of Criminal Appeals of Texas. April 27, 1960. *604 J. P. Moseley, Dallas, for appellant. Henry Wade, Crim. Dist. Atty., Jack Hampton, Paul Leech, Phil Burleson, Asst. Crim. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State. DICE, Commissioner. The offense is aggravated assault upon a female; the punishment, 6 months in jail. Appellant and the prosecuting witness were husband and wife on the date of the alleged offense but were separated with a divorce case pending between them at the time. The prosecuting witness, who was living in the home of her mother, testified that on the night in question the appellant came to the home uninvited, entered the living room unannounced where she was watching television and stated that he had come after his papers; that she told appellant to leave, tried to push him toward the door and appellant started shoving her; that she then called for her daughter and mother and in response to the call her mother came to her rescue; that in the scuffle which ensued the mother secured a baseball bat with which she hit the appellant on the forehead, whereupon appellant obtained the bat and struck the prosecuting witness on the arm, fracturing the bone. The testimony of the prosecuting witness was corroborated by that of her mother who was called as a witness by the state. Testifying as a witness in his own behalf appellant denied striking the prosecuting witness on the night in question. Appellant testified that on such occasion he went to see the prosecuting witness at her invitation; that when he arrived he was admitted into the house by her and that while they were engaged in a conversation the mother in law entered the room and without any provocation struck him on the head with the baseball bat. The court, in submitting the issue of appellant's guilt to the jury in his charge, to which no objections were made, charged the jury on the appellant's right of self-defense and upon the right of the prosecuting witness and her mother to protect their property against a trespasser. The jury chose to accept the testimony of the state's witnesses and reject that of the appellant and we find the evidence sufficient to sustain their verdict. No formal bills of exception appear in the record. We have considered the eight informal bills of exception in the statement of facts to certain questions propounded to appellant on cross examination by state's counsel and find no reversible error. Six of the bills complain of questions propounded to appellant and by him answered before any objection was made thereto. Appellant's objection to five of the questions were by the court sustained. Appellant assigned no reason for his delay in objecting to the questions propounded and did not request the court to withdraw the objectionable questions and answers from the jury's consideration. Under such record no reversible error in shown. Smith v. State, 163 Tex. Crim. 265, 290 S.W.2d 530 and Pruitt v. State, 164 Tex. Crim. 340, 299 S.W.2d 148. The other two bills relate to questions to which appellant timely objected and which objections were by the court sustained. The questions were unanswered by appellant and do not present error. Finding the evidence sufficient to sustain the conviction and no reversible error appearing; the judgment is affirmed Opinion approved by the court.

2023-08-22 21:22:49.272526+00

Brock

BROCK, Justice (concurring). I concur in the decision of the Court which affirms the conviction of Farris and modifies the sentences of Robinson and Lewis. I also concur in the holding of the Court that so much of Section 2 of Chapter 163 of the Public Acts of 1973 (T.C.A. § 40-2707) as purports to require trial judges in felony prosecutions to charge juries the provisions of T.C.A. §§ 40-3612, 40-3613, 41-332 and 41-334 is invalid because it is a subject not expressed in the title of Chapter 163 so that the Act violates Article II, Section 17, of the Constitution of Tennessee. But, I do not agree that Chapter 163 is unconstitutionally vague; its mandate to trial judges is plain enough. In my view, the vagueness and confusion to which Mr. Justice Henry refers relates to the instructions regarding parole eligibility, etc., which Chapter 163 would require trial judges to give to juries trying felony cases. Further, it is my opinion that, in addition to violating Article II, Section 17, of. the Constitution of Tennessee, the mandate of Chapter 163 that trial judges charge juries the statutes relating to parole eligibility, etc., also violates Article II, Sections 1, 2, of said Constitution because it amounts to an attempt by the legislature to exercise judicial powers. Williams v. State, 461 P.2d 997 (Okl.1969). See also Fisher v. Dabbs, 14 Tenn. 119; Brown v. Haywood, 51 Tenn. 357; Mabry v. Baxter, 58 Tenn. 682; Perkins v. Scales, 2 Shannon’s Cases 235. It is the province of the judiciary to interpret the law and apply it to the facts in a case before the Court. It is properly the function of the trial judge, not the legislature, to determine which of the vast body of laws are appropriate for the consideration of the jury in a given case. Yet, the statutory mandate of Chapter 163 amounts to a charging of the jury by the legislature, for it prescribes, word for word, the instructions to be given (the provisions of T.C.A. §§ 40-3612, 40-3613, 41-332 and 41-334) and provides that “it shall be the further duty of the trial judge ... to charge the said jury . . . ” accordingly. Thus, the trial judge merely serves as a conduit for the legislature’s charge to the jury. The Oklahoma court in Williams v. State, supra, held a similar statutory provision of that state to be an unconstitutional attempt to exercise judicial power. I agree. For the reasons stated, I concur in the decision of the Court.

2023-08-22 21:22:49.279484+00

Harbison

HARBISON, Justice (dissenting). I respectfully dissent from the opinions prepared by Mr. Justice Henry and Mr. Justice Brock. In my view, the Court has departed from well-settled principles, requiring this Court to give every intendment and presumption to the validity of acts of the Legislature, and has stricken a valid criminal procedural statute in reliance upon inapposite authorities and for reasons which I cannot reconcile with sound constitutional theory. The statute in question, Chapter 163 of the Public Acts of 1973, purported to amend a section of the official code of Tennessee, T.C.A. § 40-2707. This, in itself, distinguishes all of the cases cited by the majority with reference to the caption, for no one of those cases dealt with an amendment to officially codified law. Thus Hays v. Federal Chemical Company, 151 Tenn. 169, 268 S.W. 883 (1925), dealt with a lengthy caption to Chapter 84 of the Public Acts of 1923, which in turn purported to amend Chapter 123 of the Public Acts of 1919. The latter act, which was being amended, had not been codified, and the captions of both of the acts were extremely lengthy and involved. In the cases of Tennessee Electric Power Company v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937) and Armistead v. Karsch, 192 Tenn. 137, 237 *616S.W.2d 960 (1951), private acts of the Legislature were involved, and neither of them dealt, directly or indirectly, with an amendment to the official code of Tennessee. The majority apparently recognizes the firm and well-settled rule in this state that when the official code of the state is being amended, a simple reference in the caption to the code section involved satisfies the provisions of the Tennessee constitution in question, Article II, § 17. Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. 154, 208 S.W .2d 1013 (1948); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678 (1947). In the Pharr case, supra, the Court said: “This is not a case of the Legislature adopting ah amendment to a statute that is not a part of the official Code; but one amending a section of the Code that was formally adopted by an Act of the Legislature. When any section of the official Code is amended the members of the Legislature are presumed to know the nature of the section sought to be amended.” 186 Tenn. at 159, 208 S.W.2d at 1015. Likewise, in the Basham case, the Court said: “That an Act which fails to comply with this constitutional requirement is invalid needs no argument, but it is well settled that a reference in the caption to the section of the Code of Tennessee proposed to be amended is sufficient to comply with the requirements of Section 17, Article 2, of the Constitution. State v. Runnels, 92 Tenn. 320, 21 S.W. 665; Gamble v. State, 159 Tenn. 446,19 S.W.2d 279; Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 659. The Code of 1932 is now the ‘Official Code of the State of Tennessee.’ “Counsel argue at length, and earnestly, that such a reference is uninforming and'‘fails to satisfy the purpose- of the requirement, but this specific question has been too long settled to admit of further debate. In the last case above cited it was said: ‘We understand counsel for appellants to concede that reference to the sections of the Code of 1932 is a sufficient recital of the title of the act to be' amended to satisfy the requirement that the amendatory act shall recite the title of the law to be amended. As said in Gamble v. State, 159 Tenn. 446, 19 S.W.2d 279, 280, this ‘was long since decided.’ State v. Runnels, 92 Tenn. 320, 21 S.W. 665.” 184 Tenn. at 535-536, 201 S.W.2d at 680. In the present case the caption to Chapter 163 of the Public Acts of 1973 is very brief and simple. It is: “AN ACT to amend Section 40-2707 Tennessee Code Annotated, relative to verdict and sentence on felony conviction.” Even a casual examination of the recent acts of the General Assembly will make it clear that when the Legislature is amending an official section of the code, the words “relative to” are used in apposition to and as explanatory of the nature of the code section being amended. That is all that was done here. To me, it violates principles of grammar and syntax, as well as logic, to make the words “relative to verdict and sentence on felony convictions” into an adverbial phrase modifying the verb “amend”, as the majority have done. There was no attempt on the part of the General Assembly to specify in this caption the nature or type of amendment which was being enacted, but the reference was simply to a section of the official code which was under consideration, and the words “relative to verdict and sentence on felony conviction”, preceded as they are by a comma, clearly refer to the nature of the code section. That code section did, indeed, relate to verdict and sentence in felony cases under the Tennessee Indeterminate Sentence Act, as it had been adopted by Chapter 8 of the Public Acts of 1913, and as amended by Chapter 52 of the Public Acts of 1923 and codified as T.C.A. sections 40-2707 et seq. Had the General Assembly amended the code section in some particular manner and undertaken to specify in the caption the nature of the amendment,! as by using *617words “so as to provide that”, then the authorities cited in the majority opinion might be apposite. That is, if the General Assembly undertook to specify the particular nature or type of an amendment being made to a code section, then conceivably the limiting principles relied upon by the majority could come into play. As stated, however, the General Assembly, as a matter of regular custom and usage, amends official sections of the code without attempting to specify the nature of the amendment, and this has always, in the past, been deemed a sufficient compliance with the requirements of the Tennessee Constitution. With respect to the further argument contained in the majority opinion that the provisions of Section 2 of Chapter 163 of the Public Acts of 1973 are unconstitutionally vague and impossible of application, I simply cannot agree. There is absolutely no evidence in any of the records before this Court that the jury had the slightest difficulty in understanding or applying the statutes in question, and it is clear from listening to the legislative debates on this Act that the General Assembly felt it necessary and proper for jurors to be allowed to have a general understanding of parole procedures. There had been a long line of cases in this state, as well as in other states, in which jurors had repeatedly asked questions of the trial judge as to the effect of a sentence which they had under consideration. Prior to the enactment of Chapter 163 of the Public Acts of 1973, it was reversible error, under a number of reported cases, for the trial judge to permit the jury to consider the subject of parole, or the length of time which a convicted defendant might actually have to serve before being released. Thus, in Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957), it was held reversible error for the attorney general to read to the jury two of the code sections now required by the 1973 act to be included in the charge of the court. A comment by the trial judge that the time served by the defendant “would depend upon the good behavior of the defendant and the attitude of the Parole Board under the indeterminate sentence law” was held reversible in Williams v. State, 191 Tenn. 456, 234 S.W.2d 993 (1950). See also Keith v. State, 218 Tenn. 395, 403 S.W.2d 758 (1966); Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955). It is obvious from the large number of cases on the subject, however, that jurors, in discharging their function of fixing the sentence, have expressed great interest and concern about the matter of paroles and credits against sentences imposed. This has been true in other states as well. See An-not., 35 A.L.R.2d 769 (1954). It was against this background that the 1973 legislation was enacted, which expressly permitted them to fix the minimum sentence to be served by an offender, and also permitted them to receive information concerning paroles and good and honor time. The result of Chapter 163 of the Public Acts of 1973 was simply to make it permissible for jurors to consider materials which this Court had previously deemed inappropriate for them. This, however, does not make the statute in question unconstitutionally vague or impossible of application. Whether the decision of the General Assembly was or was not a wise one, or consonant with optimum criminal procedure, is a wholly different question from the constitutionality of the statute. It is obvious that the General Assembly did not intend for the jurors to be required to go into the intricate details of the parole system, as argued at length in the majority opinion, but that it did wish them to have some general understanding of parole eligibility. Tennessee is one of the states admitted to the Union early in the history of this country, and at a time when memories of colonial abuses were fresh in the minds of the citizenry. The Tennessee Constitution, Article I, Section 6, provides: “That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.” Section 19 of Article 1 contains declarations concerning freedom of speech and of *618the press, and this section concludes as follows: . . and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.” In accordance with the constitutional provision just cited, a large number of cases in this state have held that in a criminal case, the jury are the exclusive judges of the facts, and that they are also the judges of the law of the case. The court is said to be the proper source of the law upon which the jurors are to draw, and in one of the leading cases the somewhat quaint phrase was used that: “The court is a witness to them what the law is . .” Ford v. State, 101 Tenn. 454, 458, 47 S.W. 703, 704 (1898). It has been held to be reversible error for the judge to instruct the jury that they could not disregard the law as he gave it to them. Scott v. State, 207 Tenn. 151, 338 S.W.2d 581 (1960); and it has also been held to be reversible error to instruct that the court, rather than the jury, was the judge of the law. Dykes v. State, 201 Tenn. 65, 296 S.W .2d 861 (1956). See also Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965); McCandless v. Sammons, 50 Tenn.App. 413, 362 S.W .2d 259 (1961). Article VI, § 9, of the state constitution directs that: “The Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” Criminal procedure in this state has, from the beginning of statehood, been prescribed by a combination of statutory provisions and judicial decisions. Both the courts and the legislature have long acted in the field of criminal procedure, to the point that it cannot with accuracy be said that either has pre-empted the subject to the exclusion of the other.1 Thus, for more than a century, there have been provisions in the criminal code governing both the form and content of the instructions to be given by the trial judge to the jury. For example, by T.C.A. § 40-2516, having its origins as far back as 1873, there is an express provision that: “On the trial of all felonies, every word of the judge’s charge shall be reduced to writing before given to the jury, and no part of it whatever shall be delivered orally in any such case, but shall be delivered wholly in writing. Every word of the charge shall be written, and read from the writing, which shall be filed with the papers, and the jury shall take it out with them upon their retirement.” It is further prescribed in T.C.A. § 40-2517 that attorneys must make precise written requests for further instructions to the jury, and that the decisions of the judge on these instructions shall be reduced to writing and read to the jury “without (1) one word of oral comment”, the statute stating that it was the intention “to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of the citizens.” Having its origin in the Acts of 1877, Chapter 85, is T.C.A. § 40-2518, expressly making it the duty of the trial judge in charging juries in felony cases where two or more grades or classes of offense may be included in the indictment, “to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.” Of more recent vintage, a provision of the 1971 Drug Control Act, T.C.A. § 52-1432(a)(2) expressly requires that the trial judge shall charge the jury on certain inferences which may be drawn from the amount of controlled substances possessed by an offender. In the case of State v. Helton, 507 S.W.2d 117 (Tenn.1974) this Court held the provisions of the statute to be mandatory and held it to be reversible error for the trial judge not to charge “the *619exact language” of a portion of the code section, under the facts and circumstances presented in that case. Accordingly, there is nothing novel or extraordinary in the enactment by the General Assembly of a statutory provision governing the form or content of instructions to be given by the trial judge to the jury in criminal cases. Such statutory provisions have generally been held to be valid and imperative, rather than merely directory, although, of course there may be circumstances under which failure to comply with a statutory provision could be considered harmless rather than reversible error. See Keith v. State, 218 Tenn. 395, 403 S.W.2d 758 (1966). At least since the enactment of Chapter 23 of the Public Acts of 1829, juries in the State of Tennessee have been authorized to fix punishment in felony cases, as well as to determine guilt or innocence. By Chapter 8 of the Public Acts of 1913, however, this function was taken from the jury and vested in the trial judge in all cases falling within the purview of the Indeterminate Sentence Act embodied in that chapter. Sentencing by the judge, rather than the jury, continued until 1923, when by Chapter 52 of the Public Acts of 1923 the function of fixing the time to be served under the indeterminate sentence law was returned to the jury. That law, codified as T.C.A. §§ 40-2707 et seq., as it existed prior to the 1973 amendment here under consideration, provided that in the trial of felony cases of persons over the age of eighteen years, where the punishment for the offense was set within minimum and maximum terms by statute, the jury, in addition to determining guilt or innocence, was required to “fix the maximum term of the convicted defendant”. The statute contained the form of verdict to be rendered by the jury; and the trial judge, in imposing judgment, was directed not to fix a definite term of imprisonment, but to sentence the defendant to the penitentiary “for a period of not more than the term fixed by the jury, making allowance for good time as now provided by law.” In my opinion, Chapter 163 of the Public Acts of 1973 is consistent with the judicial history of this State, and simply represents a policy decision by the General Assembly contrary to that which had previously been made by the courts. So long as the jurors are the judges of the law as well as the facts, and so long as the jury has the function of fixing the sentence of one accused of crime, then in my opinion, it is within the legislative prerogative to authorize the jurors to consider parole eligibility. In my opinion the judgment of the Court of Criminal Appeals in each of these cases should be affirmed. I am authorized to state that Mr. Justice COOPER joins me in this dissenting opinion. . By Chapter 376 of the Public Acts of 1975 this Court, with the aid of an Advisory Committee, has been authorized to promulgate Rules of Criminal Procedure in a manner similar to that followed in the promulgation of the present Rules of Civil Procedure. Preparation of such Rules is now in progress.

2023-08-22 21:22:49.285148+00

Henry

OPINION ON PETITION TO REHEAR HENRY, Justice. Both the petitioner and the State have filed petitions to rehear. We respond first to the State’s petition. The State takes the position that the thrust of our opinion was to preclude the trial judge from charging Section 1 of Chapter 163 of the Public Acts of 1973. This is an erroneous interpretation of our holding. This section remains intact. We dealt only with so much of Section 2 of Chapter 163 of the Public Acts of 1973 (§ 40-2707, T.C.A.) as directs that the trial judge charge the jury as to the provisions of §§ 40-3612, 40-3613, 41-332 and 41-334, T.C.A. Section 1 of the Act (first paragraph, § 40-3707) is in no way affected. This section relates to verdict and sentencing and, in no sense, does it relate to the court’s charge on parole violations. It is therefore well within the limits of the caption and is germane thereto. This is clearly apparent when consideration is given to the long history of this portion of § 40-2707. See Chapter 8, Public Acts of 1913 (§ 7201-9, Thompson’s 1917 Revision of Shannon’s Code of Tennessee) and Chapter 52 of the Public Acts of 1923 (§ 11766, Williams’ Tennessee Code of 1934). *620The State also insists that the phrase “final conviction” as used in the concluding portion of the opinion is synonymous with “jury verdict.” A careful reading of the phraseology used will clearly indicate that we were primarily concerned that this case not precipitate petitions for post-conviction relief. A “final conviction”, as used in the main opinion, simply means those cases wherein jury verdicts have been returned but the usual appellate review, vis a vis post-conviction relief, has been completed. The State’s petition complains of the action taken in State v. William Wayne Robinson and State v. Roosevelt Lewis, the companion cases which were consolidated with Farris for the purpose of their consideration by this Court. The thrust of the State’s petition in this regard is that since the Court found that “the charge to the jury bears only upon the question of punishment and has no relation to the jury’s finding of guilt or innocence”, the proper relief should have been a remand “only for a determination of punishment.” We sustain the State’s petition in this regard. The first case bearing upon this question is Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944), wherein the jury found the defendant guilty of grand larceny on evidence warranting conviction for petit larceny only, and fixed his maximum punishment at three (3) years imprisonment. The Court held that the sentence should be reduced to the minimum of one (1) year for petit larceny, provided the State consented. With respect to the State’s consent and the necessity therefor, the Court said: [T]he State has an equal right with the defendant to have the jury fix the term of imprisonment. Since the State may feel that upon reversal and new trial a verdict might be obtained on conviction of defendant for petit larceny properly fixing his imprisonment at a longer term than the minimum of one year provided by statute, we feel that the action heretofore indicated should not be taken except upon the State’s consent. 181 Tenn. at 230, 180 S.W.2d at 903. In Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946), the Court found that the evidence was insufficient to sustain a conviction of murder in the first degree, but that it did support a conviction for murder in the second degree. The Court accordingly “corrected” the judgment by fixing the minimum sentence for murder in the second degree. It is the theory of both Corlew and For-sha that where the indictment embraced several offenses of different grades and the accused was convicted of the greater, the jury by its verdict, has also convicted him of all lesser offenses. Facially, Forsha contains no indication that the reduced sentence was conditioned upon the consent of the State; however, a subsequent case, State v. Odom, 200 Tenn. 231, 292 S.W.2d 23 (1956) points out that: The State, in its answer to Forsha’s petition to rehear, expressly approved the action of this Court in reducing the grade, and called attention to Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900. 200 Tenn. at 234, 292 S.W.2d at 24. In Odom the Court recognizes the fact that it does not affirmatively appear in Waldie v. State, 190 Tenn. 537, 230 S.W.2d 993 (1950), that the reduction was made on condition that the State consent. The Court then observes that “[t]he requirement of this condition is so plainly stated in Cor-lew (cit.) as to necessitate the conclusion that it was assumed in the Waldie case without being mentioned.” 200 Tenn. at 234-35, 292 S.W.2d at 24. In Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956), the Advocate General, Nat Tipton, a distinguished lawyer and a recognized authority in the field of criminal law, argued to the Court that when the proof shows a defendant to be guilty of a lesser included offense than that for which he was convicted, then the Court should sustain the conviction for the lesser included offense and at the same time fix the minimum penalty under the lesser offense. The Court concluded that the judgment should be modified and the case remanded for the purpose of having a jury fix the *621punishment within the maximum as charged in the indictment. In Huffman, the Court did not condition its action upon the acquiescence of the State; however, it is again pointed out that the Advocate General, representing the State, urged the Court to treat the verdict as being absolutely valid so far as it convicts the plaintiff-in-error of the offense of assault and battery, the lesser included offense. There was, therefore, no occasion for conditioning the action upon the State’s approval. Huffman stands as authority for the proposition that bifurcated trials are permissible under the Constitution of Tennessee since1 “No where in this constitutional provision is it provided that the same jury that finds the man guilty must fix the punishment.” 200 Tenn. at 499, 292 S.W.2d at 743. Guidelines for the sentencing hearing wherein the only question for the consideration of the jury is the extent of the punishment are established as follows: Thus both sides may introduce proof as to how the assault was committed, the injuries, aggravation or mitigation, etc., so that the jury may properly fix the penalty. The trial judge should charge the jury that the plaintiff in error is guilty of assault and battery and that the fixing of the punishment is all they are to do. 200 Tenn. at 498, 292 S.W.2d at 743. The Huffman guidelines are specifically approved in Hunter v. State, 496 S.W.2d 900 (Tenn.1972), wherein the Court reiterates that there is neither a statutory nor a constitutional prohibition against bifurcated trials. Other cases supporting a correction or modification of a judgment and its reduction to the statutory minimum, conditioned upon the State’s consent, and in its absence a remand for the fixing by a jury of a sentence within the statutory limits are Whitsett v. State, 201 Tenn. 317, 299 S.W.2d 2 (1957); Hunt v. State, 202 Tenn. 221; 303 S.W.2d 740 (1957); Cooper v. State, 210 Tenn. 63, 356 S.W.2d 405 (1962); Smith v. State, 212 Tenn. 510, 370 S.W.2d 543 (1963), and the recent case of Smith et al. v. State, 527 S.W.2d 737 (Tenn.1975) where this Court, speaking through Chief Justice Fones vacated the punishment set, fixed the term at the minimum sentence, subject to the consent of the State, and in the absence of the State’s acceptance of the reduction, remanded for a new trial “solely on the issue of punishment, in accordance with the guidelines provided” by Huffman. 527 S.W.2d at 739. Adhering to the principles so firmly established in these cases, and responsive to the State’s well-considered petition to rehear in this regard, we recede from our original opinion in this particular, and modify it so as to provide that if the State does not consent to the reduction of the sentences of William Wayne Robinson and Roosevelt Lewis to the statutory minimum for their respective offenses, their cases will be remanded for a new trial solely on the issue of punishment, in accordance with the guidelines provided by Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 at 743 (1956). All other questions raised in the State’s petition to rehear were considered in the preparation of the main opinion and have been reconsidered in the light of the petition to rehear and are respectfully overruled. Counsel for James E. Farris has also filed a petition to rehear taking the Court to task for the holding that error was not assigned on the basis of the charge to the jury on parole considerations. The stated ground for the petition is: Petitioner did in fact raise the same objections, assign as error, and argue the same point of law followed by this Honorable Court in modifying and/or reversing the convictions of fellow petitioners William Wayne Robinson and Roosevelt Lewis. We quote from the petition for the writ of certiorari filed in behalf of James E. Farris as follows: *622The trial court erred in instructing the jury regarding the doubling of the minimum punishment, said law which authorizes such a change (sic) is unconstitutional. While counsel charges the Court with a “strained interpretation” of this assignment it would be both strained and strange to construe the assignment so made as being directed at any portion of § 40-2707 T.C.A. except the first paragraph thereof. This is the identical assignment made on motion for a new trial and in the Court of Criminal Appeals. Only this and nothing more. This Court operates on the basis of errors assigned for our consideration and we have neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error. The petition of James E. Farris is respectfully overruled. In order to clarify further our holding in this case we point out that the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure. In Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559 (1954), then Chief Justice Neil, with respect to the Forsha procedure said: But former decisions cannot be considered as a criterion or authority for thus mitigating a sentence fixed by the jury and trial court in a given case. Every case must be governed by its own facts, and a decision made according to the demands of law. 196 Tenn. at 267, 265 S.W.2d at 561. In other words, “every tub must stand on its own bottom.” We do not intend to dilute the meaning and significance of the Court’s holding in this case by these comments. Where the prohibited charge is given after the release of the main opinion, the error is reversible. The rule we announce will be applied along with all other relevant criteria in all cases arising prior to its release. In order to correct an inadvertent error appearing in the main opinion, the sentences are reduced as follows: William Wayne Robinson to not less than three (3) years nor more than three (3) years; Roosevelt Lewis to not less than five (5) years nor more than five (5) years. Justices Cooper and Harbison continue to dissent from the main opinion and Justice Brock continues to adhere to the position taken in his concurring opinion; however, all members of the Court concur in the legal conclusions articulated in this opinion on the petitions to rehear. All concur. . See Sec. 9 of Article 1 of the Constitution of Tennessee.

2023-08-22 21:22:49.899049+00

Rudman

RUDMAN, J. [¶ 1] William and Barbara Charlton appeal from a judgment entered in the Superior Court (Oxford County, Gorman, J.), after a nonjury trial in favor of the Town of Oxford, its Code Enforcement Officer, Rodney Smith, its Planning Board, and Carl Delekto. Finding no error, we affirm the judgment. I. BACKGROUND A. Procedural History [¶ 2] Count I of the Charltons’ amended complaint contained an appeal, pursuant to M.R. Civ. P. 80B, from the decision of the Oxford Zoning Board of Appeals (“ZBA”). Count II alleged that Delekto’s construction constituted a nuisance pursuant to 30-A M.R.S.A. § 4302 and sought injunctive relief. Count III requested a declaratory judgment and injunctive relief against the Planning Board and Delekto. Count IV of the amended complaint requested a declaratory judgment finding that Delekto had violated various land use statutes and ordinances. Count V alleged negligence by Delekto and sought compensatory and punitive damages. Count VI demanded damages from Delekto for nuisance, pursuant to 30-A M.R.S.A. § 4302 and the common law. [¶ 3] The court first considered Count I, the 80B appeal from the refusal of the ZBA to hear the Charltons’ appeal, concluding that it was untimely. The ordinance required that an appeal be filed within thirty (30) days of the issuance of the building permit to Delekto. See Oxford, Me., Code § 19(G)(4)(a)(1) (March 12, 1994). The permit was issued October 1, 1997; the appeal was taken August 5, 1998. The Superior Court (Oxford County, Perkins, A.R.J.) affirmed the decision of the ZBA. The Charltons did not appeal from the Superior Court’s decision affirming the decision of the ZBA. [¶ 4] The remaining counts in the Charl-tons’ complaint were tried by the court without a jury. The court found in favor of the defendants on all counts in the complaint. The Charltons timely appealed and Delekto cross-appealed from that portion of the court’s order that was adverse to him. Because we affirm, we do not reach the issues raised by Delekto’s cross-appeal. B. Factual History [¶ 5] The Charltons own land and a cottage located on Thompson Lake in Oxford. Delekto owns an adjacent parcel of land. On August 28, 1997, Delekto submitted a Shoreland Zoning Application to the Oxford Planning Board seeking to build a new structure; the application was approved that day. On October 1, 1997, the Town issued Delekto a building permit. Despite an ordinance requiring notification, the Town failed to notify the Charl-tons, who reside in Massachusetts, that Delekto had applied for, and was granted, a building permit.1 *369[¶ 6] The trial court, in its well-reasoned and thoughtful decision, found that Delek-to’s house, garage, and breezeway violated the permit issued by the Planning Board in several ways: 1. [T]he Ordinance mandates that a “replacement” structure within the Shoreline Zone cannot be more tha[n] 30% larger than the footprint or the volume of the nonconforming, existing building. Measurements taken by Richard Baker demonstrate that the shoreline floor area of the existing building was 632 square feet. Therefore, the shoreline floor area of the new building could only be 822 square feet under the Ordinance. According to Richard Baker, this building exceeds that by more than 1000 cubic feet. Mr. Baker also measured the volume of the existing building at 5412 cubic feet. Again based upon the Ordinance’s 30% rule, the new building could be no larger than 7036 cubic feet. Plaintiffs exhibit 18. 2. The permit allowed Mr. Delekto to construct a 28' x 44', two-story house with a full foundation, a 28' x 40' garage on a slab, a 12' x 16' deck, and a 12' x 16' breezeway between the garage and the house. The breezeway exceeds the measurements allowed by the permit. 3. The permit required that the house be set back a minimum of ninety feet from the high water mark. Parts of the structure are approximately eighty-six feet from the high water mark. 4. The permit allows the structure to be no higher than 24 feet. It is 32 feet high at the garage. The height of the house is unknown, but any measurements taken on the non-water side of the house must be increased by 3.5 feet to accommodate the fill Mr. Delekto added to the land. Ordinance definition of “height of a structure,” p. 72. 5. There are more than 492 square feet within 90 feet of the high water mark. 6. More than 492 square feet of the structure are within 100 feet of the high water mark. [¶ 7] The court also found other violations with the building construction and site: 1. The garage and the breezeway both have full foundations. The permit does not provide for a full foundation for any structure except the “house.” The basement under the garage is currently being used to store building materials, snowmobiles, and water craft. The basement under the breezeway will be used as living space. 2. Mr. Delekto built a drainage ditch that also serves as a retaining wall immediately next to the boundary between his land and the Charltons’ land. The ditch/retaining wall is a structure pursuant to the definition contained within the Ordinance: [A]nything built for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected with a fixed location on or in the ground, exclusive of fences[,] streets and sidewalks. The term includes structures temporarily or permanently located, such as decks and satellite dishes. *370Ordinance, p. 76. The permit requires that there be a minimum of twenty-five feet between any structure and the boundary line. 3. As noted above, the permit granted to Mr. Delekto did not grant permission for the construction of this ditch. In addition, Mr. Delekto did not obtain a permit from the DEP as required by 38 M.R.S.A. § 480-C. 4. The Ordinance allows for some clearing of trees and brush to allow for construction, but no greater than 10,000 square feet. Ordinance § 17(I)(3)[.] Before constructing his home, Delekto cleared a quadrangle measuring 100' x 85' x 167' x 118'. Plaintiff exhibit 18. 5. The permit allowed for a two-story house and a garage on a slab. The house site slopes down to the water. Rather than remove earth at the road side to create a level area, Mr. Delekto built up that side, and constructed a basement under the house, the breezeway and the garage so that it is entirely above grade on the water side. As a result, the house and the garage rise three stories above the ground at the water side. 6. During the trial, Mr. Delekto installed a 4' x 5' concrete slab next to the garage to allow for the installation of a generator. He was unable to state whether the slab was closer than twenty-five feet to the boundary line, and asserted that he did not believe he needed a permit to install the slab. 7. The Ordinance states that terms not defined therein “shall have the customary dictionary meaning.” Ordinance, § 20(A)(2). The common dictionary meaning of “breezeway” is a roofed open-sided passageway connecting two buildings. Oxford American Dictionary 1980. The breezeway constructed by Mr. Delekto is entirely enclosed, has a full basement, and houses the main kitchen, laundry, and a full bath. [¶ 8] The trial court, in its judgment and order, noted that Oxford, Me., Code § 19(G)(4)(a)(1) (March 12, 1994) “allows the Charltons to appeal every decision made by the CEO concerning Mr. Delek-to’s property.” Subsequent to the trial court’s decision but prior to the oral argument on this appeal, an occupancy permit was issued to Delekto. The Charltons, however, did not appeal the issuance of the occupancy permit. II. DISCUSSION [¶ 9] The Charltons contend that they have suffered an injury to the comfort, use, and enjoyment of their estate and that, consequently, they may bring statutory causes of action, pursuant to 17 M.R.S.A. § 27012 and 30-A M.R.S.A. § 43023 for nuisance, as well as a common law cause of action for nuisance. The Charltons further assert that the trial court committed clear error in rejecting the testimony of their expert -witness and in finding that they failed to prove that they suffered damages as a result of De-lekto’s construction. *371A. Statutory Causes of Action 1. 30-A M.R.S.A § ^302 A. Legislative History [¶ 10] “We review the interpretation of a statute de novo for errors of law.” In re Wage Payment Litig., 2000 ME 162, ¶ 4, 759 A.2d 217, 220 (citation omitted). “When construing a statute, we seek to give effect to the legislative intent by examining the plain meaning of the statutory language.” Id. at 220-221 (citation omitted). When the plain meaning of the text does not resolve an interpretative issue, “we then consider the statute’s history, underlying policy, and other extrinsic factors to ascertain legislative intent.” Id. at 221 (citation omitted). When discerning legislative intent, “we interpret the section of the statute in the context of the statutory scheme in which it is found.” Id. (citation omitted). [¶ 11] 30-A M.R.S.A. § 4302 states that “[a]ny property or use existing in violation of a municipal land use ordinance or regulation is a nuisance.” Therefore, based on the clear, unambiguous language of 30-A M.R.S.A. § 4302. Delekto committed a statutory nuisance because the trial court found that he had violated the Town’s land use ordinance. The question then, is whether, given that Delekto’s construction constituted a nuisance, the Charltons have a private right of action for a nuisance statutorily created by the enactment of 30-A M.R.S.A. § 4302.4 [¶ 12] The language of 30-A M.R.S.A. § 4302 can be traced back to P.L. 1855, ch. 149, and R.S. ch. 3, § 27 (1857).5 In 1860, R.S. ch. 3, § 27 was amended by P.L. 1860, ch. 144. This amendment was codified at R.S. ch. 3, § 40 (1871).6 This statute was located in the part of the Maine Revised Statutes entitled. “Town and City ByLaws and Ordinances.” Notably, R.S. ch. 3, § 40 contains a cross-reference to ch. 17, § 26, the then-nuisance statute. That statute states that the nuisance may be abated, removed, or altered and “all expenses thereof shall be repaid to the town within thirty days. . . .” R.S. ch. 17, § 26 (1871). [¶ 13] Our review of the legislative history shows that, at one point, the land use statutes and nuisance statutes were, in fact, read in tandem. A violation of a land *372use ordinance was actionable by the Town pursuant to Chapter 17, which is now Title 17. As this legislative history reflects, the early nuisance statutes, however, were enacted solely for the benefit of the towns as an enforcement mechanism. Conversely, the early nuisance statutes did not provide any private remedy to abutting land owners. B. Implied Right of Action [¶ 14] The trial court found that “a nuisance arising from the violation of a zoning or land use ordinance must be considered a ‘public’ nuisance.” The court concluded that 30-A M.R.S.A. § 4302 does not provide a private cause of action in zoning or land use violation situations because “public problems are not abated by individuals, but rather by public officers.... ” [¶ 15] Because section 4302 does not state that a private right of action exists, we must determine if such a right of action can be implied. We are hesitant to imply a private right of action where the legislature has not expressly stated that a cause of action exists. In Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97 (Me.1984), we noted that when the Legislature deems it “essential that a private party have a right of action, it has expressly created one.” Larrabee, 486 A.2d at 101 (citation omitted). Therefore, absent express language creating a private right of action, the key to determining whether there is an implied cause of action lies in the legislative intent, expressed either in the statute or the legislative history. In re Wage Payment Litig., 2000 ME 162, ¶ 7, 759 A.2d at 222. [¶ 16] The language in section 4302, however, does not by itself confer a private right of action for nuisance on the Charl-tons. Thus, we must resort to the canons of statutory interpretation to discern the legislative intent behind the enactment of section 4302. In determining legislative intent, we look to that section of the statutory scheme in which section 4302 is found. Section 4302 is located in Chapter 187, which deals with municipal “planning and land use regulation[s].” See 30-A M.R.S.A. § 4301 et seq. Chapter 187 also contains section 4452, which expressly provides mechanisms for the enforcement of land use laws and ordinances. Section 4452 states in pertinent part: § 4452. Enforcement of land use laws and ordinances 2. Liability for violations. Any person, including, but not limited to, a landowner, the landowner’s agent or a contractor, who violates any of the laws or ordinances set forth in subsection 5 or 6 is liable for the penalties set forth in subsection 3. 4. Proceedings brought for benefit of municipality. All proceedings arising under locally administered laws and ordinances shall be brought in the name of the municipality. All fines resulting from those proceedings shall be paid to the municipality. 5. Application. This section applies to the enforcement of land use laws and ordinances or rules which are administered and enforced primarily at the local level, including: G. Local land use ordinances adopted pursuant to section 3001; H. Local building codes adopted pursuant to 3001 and 3007; Q. Shoreland zoning ordinances adopted pursuant to Title 38, sections 435 to 447, including those which were state-imposed; *37330-A M.R.S.A. § 4452 (1996 & Supp.2000). [¶ 17] The Oxford zoning ordinance was adopted “pursuant to Title 30A [sic] Section 3001, 4311-4353 and Title 38 Sections 435-449 . . . .” Oxford, Me., Code § 2 (March 12, 1994). Because the Oxford zoning ordinance was adopted pursuant to section 3001, section 4452 makes it clear that any actions brought to enforce provisions of the zoning ordinance, which is the case here, must be brought by the Town. An action to recover damages or to seek injunctive relief pursuant to section 4302 is an action to enforce an ordinance within the meaning of section 4452. Section 4452 specifically provides that all enforcement actions shall be brought in the name of the municipality for its benefit. Accordingly, only the Town of Oxford, and not the Charltons, may bring such an action.7 [¶ 18] Finally, as we noted in Larrabee, “if our Legislature had intended that a private party have a right of action pursuant to 30-A M.R.S.A. § 4302, it would have either expressed its intent in the statutory language or legislative history or, more likely, expressly enacted one.” Larrabee, 486 A.2d at 101. [¶ 19] Although Delekto, an abutting land owner, violated a land use ordinance and committed a nuisance pursuant to 30-A M.R.S.A. § 4302, the Legislature, in enacting section 4302, did not intend to provide the Charltons with a cause of action for nuisance. Instead, by enacting 30-A M.R.S.A. § 4452, it provided the Town with an enforcement mechanism. Specifically, section 4452 gives a municipality, and only a municipality, the authority to enforce land use regulations. Accordingly, only municipalities may bring an action for violations of such regulations.8 Herrle v. Town of Waterboro, 2001 ME 1, ¶ 11, 763 A.2d 1159, 1162 (recognizing that private citizens do not have standing to initiate proceedings to enforce municipal zoning regulations). The trial court, therefore, did not err in holding that “the legislature must have intended that no such remedy existed pursuant 30-A M.R.S.A. § 4302.” [¶ 20] The Charltons also argue that 17 M.R.S.A. § 2701 and 30-A M.R.S.A. § 4302 must be read in pari materia because they deal with the same subject matter — nuisance. “Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object.” 2B NoRMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51.03 (5th ed.1992) (citations omitted). “Characterization of the object or purpose is more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other.” Id. (citation omitted). [¶ 21] 17 M.R.S.A. § 2701 falls within Chapter 91, which deals with the law of *374nuisance. 30-A M.R.S.A. § 4302 falls within Chapter 187, which deals with “planning and land use regulation.” While both statutes deal with a similar “subject” — i.e., nuisance, the legislative “purpose” of 30-A M.R.S.A. § 4302 is to provide enforcement mechanisms for towns, and not remedies for private citizens. Therefore, contrary to the Charltons’ assertions, 17 M.R.S.A. § 2701 and 30-A M.R.S.A. § 4302 cannot be read in pari materia as they do not relate to the “same subject matter,” nor do they have the same “purpose.” 2. 17 M.R.S.A. § 2701 [¶ 22] The Charltons next argue that they have a cause of action pursuant to 17 M.R.S.A. § 2701 because Delekto’s structure violates the Town’s zoning ordinance and certain Maine statutes. [¶ 23] Title 17 M.R.S.A. § 2701 states that “[a]ny person injured in his comfort, property or the enjoyment of his estate by a common and public or a private nuisance may maintain against the offender a civil action for his damages, unless otherwise specially provided.” 17 M.R.S.A. § 2701 (1983). The question then, is whether section 2701 applies only to those nuisances delineated in 17 M.R.S.A. § 2741 (Supp.2000) (common nuisances) and 17 M.R.S.A. §§ 2791—2806 (1983 & Supp.2000) (particular nuisances) or whether plaintiffs can bring an action based solely on the language of section 2701. [¶ 24] We have held that “[17 M.R.S.A. § 2701] ... was intended to apply to those nuisance actions presently delineated in 17 M.R.S.A. § 2802 [miscellaneous nuisances].” Johnson v. Whitten, 384 A.2d 698, 702 (Me.1978) (citation omitted). The Charltons, however, argue that Johnson is inapplicable to the case at bar. The Charltons’ arguments are unpersuasive. They argue, for example, that “the legislature was not required to place 30-A M.R.S.A. § 4302 in Title 17 rather than with its companion land use statutes in order to give it its full force and effect.” It is true, that if the legislature so intends, different provisions in disparate acts, dealing with similar issues, may be construed together. However, “when statutory language has acquired a consistent and entrenched meaning through prior judicial decisions, we will not abandon our traditional interpretation of that language unless there is expressive statutory language plainly showing a legislative intent to abrogate those prior decisions.” Tripp v. Philips Elmet Corp., 676 A.2d 927, 930-31 (Me.1996) (citation omitted). Here, the Charltons can point to no such intent on behalf of the legislature to abrogate our holding in Johnson, and in fact, none can be found. Their argument, therefore, lacks merit. [¶ 25] Johnson clearly establishes that statutory causes of action pursuant to Title 17 M.R.S.A. § 2701 are limited to those nuisances delineated in the statute. Johnson, 384 A.2d at 702; see also State v. Rees, 2000 ME 55, ¶ 4, 748 A.2d 976, 978 (stating that “[w]e do not disturb a settled point of law unless ‘the prevailing precedent lacks -vitality and the capacity to serve the interests of justice. . . .’ ” (quoting Bourgeois v. Great N. Nekoosa Corp., 1999 ME 10, ¶ 5, 722 A.2d 369, 371)).9 The *375Superior Court, therefore, did not err by finding that “[t]here is no private nuisance in this case. Title 17 M.R.S.A. § 2701 permits private actions for damages caused by the nuisances listed in sections 2791 through 2805.” [¶ 26] The Charltons also argue that, because Delekto’s violations of the Oxford Zoning Ordinance constitute a common or public nuisance, they can recover damages pursuant to section 2701. Relying on Sproul v. Town of Boothbay Harbor, 2000 ME 30, 746 A.2d 368, they assert that “setback violations are a sufficient adverse consequence to give an abutter a particularized injury.” The trial court found, however, that the Charltons did not incur any special or peculiar injury because of Delekto’s violations. [¶ 27] To establish a cause of action for common or public nuisance, a party must show that he has “suffered therefrom some special and peculiar damages other and greater than those sustained by the public generally.” Brown v. Watson, 47 Me. 161, 162 (1859); see also Penley v. City of Auburn, 85 Me. 278, 27 A. 158 (1893). “For an injury to a particular person, as by a common nuisance, no matter how inconsiderable the injury, he may maintain an action.” Brown, 47 Me. at 164 (citation omitted); see also Hanlin Group, Inc. v. Int’l Minerals & Chem. Corp., 759 F.Supp. 925, 935 (D.Me.1990). [¶ 28] A review of the land use violations found by the trial court establishes that the only violation that arguably could have caused the Charltons special or peculiar injury is the installation of the ditch/retaining wall. The trial court found, however, that “the Charltons have faded to prove, by a preponderance of the evidence, that they suffered any special damage as a result of the placement of the ditch/retaining wall.” We review the trial court’s finding of fact for clear error, and will “uphold the trial court’s findings unless there is no evidence to support them.” Sargent v. Tomhegan Camps Owners Ass’n, 2000 ME 58, ¶ 5, 749 A.2d 143, 144 (citing Sturtevant v. Town of Winthrop, 1999 ME 84, ¶ 9, 732 A.2d 264, 267). [¶ 29] The evidence shows that, before Delekto constructed the ditch/retaining wall, the Charltons had problems with “a little bit of runoff’ from Delekto’s property. Prior to the building of the ditch/retaining wall, Mr. Charlton and Delekto had a brief conversation regarding the run-off from Delekto’s property onto the Charl-tons’ property. At that time, Mr. Charlton believed that installing a “silt fence” would stop the run-off from spilling onto the Charltons’ property. Mr. Charlton testified that there have been, on at least two occasions, water running from Delekto’s property onto the Charltons’ property since Delekto built the ditch/retaining wall. Mrs. Charlton also opined that the Charl-tons’ property had diminished in value because of Delekto’s construction, land clearing, and zoning violations. The Charltons contend, pointing to several land use cases, that Delekto’s land use violations resulted in “particularized injury” sufficient to support their nuisance claim. [¶ 30] In municipal land use cases, “ ‘particularized injury’ is met when the judgment adversely and directly affects the party’s property, pecuniary or personal *376rights.” Anderson v. Swanson, 534 A.2d 1286, 1288 (Me.1987) (quoting New England Herald Dev. Group v. Falmouth, 521 A.2d 693, 695 (Me.1987)). A high degree of proof is not required to establish standing to appeal from a Zoning Board of Appeals decision. Id. [¶ 31] Conversely, to show “special or particularized injury” in a nuisance case, a plaintiff must show that they have suffered an actual injury that is “different from those [injuries] suffered by the community at large.... ” Tuell v. Inhabitants of Marion, 110 Me. 460, 463, 86 A. 980, 981 (1913). Therefore, while Delekto’s violations are such that the Charltons may have suffered “particularized injury” sufficient to provide standing to appeal from a decision of the ZBA, which they did, the violations have not resulted in “particularized injury” such that they can maintain a suit for nuisance because they have not “sustained special damages different from those suffered by the community,.... ” Tuell, 110 Me. 460, 463, 86 A. 980, 981 (1913). The Charltons did not produce evidence to establish that they have suffered any pecuniary loss, or injuries, to their person or property because of Delek-to’s land use violations. [¶ 32] The Charltons also argue that we have recognized “aesthetic injury” to an abutter and that the trial court’s holding that “aesthetic concerns alone would not give rise to a determination that the Charltons have been damaged” is incorrect as a matter of law. Again, however, the Charltons buttress their arguments by looking at a land use case dealing with standing issues. In that case, we held that, “due to the proximate location of [the abut-ter’s] property together with the potential for [a]esthetic or noise injury from the construction or use of the double deck, [the abutter] has sufficient standing to seek judicial review of the action of the Zoning Board of Appeals in granting a variance.” Forester v. City of Westbrook, 604 A.2d 31, 32 (Me.1992) (emphasis added). The issue here, however, is one of nuisance, not standing; the standard for nuisance requires a higher degree of harm. Therefore, Forester and the other ZBA standing cases are inapposite to the facts of this case. [¶33] The Charltons confuse the nature of injury necessary to establish standing with the requirement of demonstrating actual harm in order to recover damages in a nuisance claim. Contrary to the Charltons’ arguments, we have specifically held that an “aesthetic injury” alone is not an infringement of any legal rights. We have stated, for example, that “[a] neighbor’s building on his own land, by its ugliness of architecture or by its mere proximity, may lessen one’s enjoyment of his own residence and lessen its market value: ... and yet no legal right be infringed.” Whitmore v. Brown, 102 Me. 47, 57, 65 A. 516, 520 (1906). We further noted, in Whitmore, that the law does not “recognize as a cause of action the annoyance caused by the proximity or ugliness of otherwise harmless structures upon the land of another.” Id., 102 Me. at 59, 65 A. at 521. Whitmore remains good law; the law of the State of Maine does not recognize a cause of action for an “otherwise harmless structure[ ] upon the land of another[,]” regardless of how unsightly or overbearing the structure may be. See id. [¶ 34] The Charltons, citing Brown v. Watson, 47 Me. 161 (1859), argue that the standard for what constitutes special injury is low. See Brown, 47 Me. at 164 (stating that “no matter how inconsiderable the injury, he may maintain an action.”). In this case, however, it is not that the Charltons have suffered a nominal or de minimis injury, rather, it is that they have not suffered a quantifiable injury, such that the value of their property has *377been diminished or that the Delekto property has interfered with the use and enjoyment of their property. Moreover, [w]hen defendant’s conduct involves mere physical discomfort or mental annoyance, there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until it results in a depreciation in the market or rental value of the land. W. Page Keeton et al., Prosser and Keeton On The Law Of Torts § 88 at 627 (5th ed.1984). [¶ 35] Because the Charltons failed to establish that they suffered a special injury, the Superior Court did not err in finding that the Charltons failed to submit sufficient evidence to support their statutory nuisance claim. B. Common Law Nuisance [¶ 36] The Charltons argue that they have a common law cause of action for nuisance because of Delekto’s construction. We have recently recognized the existence of a common law cause of action for nuisance, stating that “ ‘[t]he essence of a private nuisance is an interference with the use and enjoyment of land.’ ” Town of Stonington v. Galilean Gospel Temple, 1999 ME 2, ¶ 15, 722 A.2d 1269, 1272 (quoting w. page keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 87 at 619 (5th ed.1984)). We note that the following elements are necessary to satisfy a common law cause of action for private nuisance: (1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; (2) There was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended; (3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial ... The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant’s conduct;10 (4) The interference that came about under such circumstances was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.... W. PAGE KEETON ET AL., PROSSER AND KEETON On The Law Of Torts § 87 at 622-23 (5th ed.1984). [¶ 37] The Charltons satisfied the first element of common law private nuisance because Delekto, by his code violations, acted with the intent of interfering with their use and enjoyment of the land.11 *378[¶ 38] Regarding the second element of common law nuisance, there has, arguably, been some interference with the Charltons’ use and enjoyment of their property because Delekto’s violations of the 25-foot set-back provision encroached upon the Charltons’ privacy. The Charltons, however, are unable to satisfy the third element for common law nuisance because they did not produce sufficient evidence that their property’s market or rental value had been diminished. See supra note 10. [¶ 39] To establish their damages claim, the Charltons called Jonathan Beal, a real estate appraiser, to testify regarding the impact Delekto’s construction had on their property. The trial court chose, however, to reject Beal’s valuation testimony as “he acknowledged that his valuation method was not sanctioned by his peers.” See Striefel v. Charles-Keyt-Leaman P’ship, 1999 ME 111, ¶ 7, 733 A.2d 984, 989 (noting that we give due regard to the trial court’s determination of credibility of witnesses and weight given to the evidence). [¶ 40] The trial court’s finding that the Charltons suffered no damages as a result of the ditch/retaining wall is a finding of fact that we review for clear error. Dep’t of Human Services ex rel. Hampson v. Hager, 2000 ME 140, ¶ 30, 756 A.2d 489, 495 (citation omitted). “A trial court’s factual determinations are ‘clearly erroneous’ only if there is no credible evidence on the record to support them.” Id. (citation omitted). Neither of the Charltons testified regarding how much, if any, their property value was diminished by Delekto’s actions. Moreover, given Beal’s acknowledgement that “sometimes when ... a large, new, expensive home [is built] next to a small, older, less expensive home, [] the impact of the new construction on the old one will be to raise the value on the old one[,]” we cannot say that the trial court’s findings are clearly erroneous. The entry is: Judgment affirmed. . Section 19 of the Oxford Zoning Ordinance states in pertinent part: C. Procedure for Administering Permits 2. For applications which require Planning Board review, the Planning Board *369shall approve, approve with conditions, or deny the application within 35 days except that: c. Before a public hearing or rendering a decision, the Planning Board shall notify property owners within 500 feet, the fire chief, the police chief, the town manager, Oxford, Me., Code § 19(C)(2)(c) (March 12, 1994). . § 2701. Action for damages caused by nuisance Any person injured in his comfort, property or the enjoyment of his estate by a common and public or a private nuisance may maintain against the offender a civil action for his damages, unless otherwise specially provided. 17 M.R.S.A. § 2701 (1983). . § 4302. Nuisances Any property or use existing in violation of a municipal land use ordinance or regulation is a nuisance. 30-A M.R.S.A. § 4302 (1996). . We note that in its emergency preamble to legislation reenacting § 4302, the Legislature stated that the reenactment was "urgently needed ... to preserve the ability of local government to effectively address issues of local concern[.]” (emphasis added). P.L. 1989, ch. 104, § 45. . Chapter 149, entitled: "An act giving further powers to cities and towns to pass bylaws and ordinances!]]” states, in relevant part: Sect. 3. Said cities and towns are hereby further authorized to adopt such regulations in regard to the erection of wooden buildings ... and may provide penalties necessary for the due execution of such regulations; and any building erected in violation of the by-laws and ordinances of any city or town shall be deemed to be a nuisance and shall be liable to all the proceedings and penalties provided by law in case of nuisance. P.L. 1855, ch. 149, § 3. . Section 40 states, in relevant part: Sec. 40. Towns, cities, and village corporations may make such by-laws or ordinances as they think proper, not inconsistent with the laws of the state, and enforce them by suitable penalties, for the purposes and with the limitations following: Seventh. Respecting the erection of wooden buildings therein, or buildings the exterior of which shall be in part of wood, and defining their proportions and dimensions; and any building erected contrary to a by-law or ordinance adopted under this specification shall be deemed a nuisance and dealt with accordingly. R.S. ch. 3, § 40 (1871). . Section 4452(3)(E) recognizes that a municipality may have contributed to the violation by providing the violator with incorrect information or by failing to take timely action, and therefore, encourages a court to consider such inaction on the part of the municipality when setting a penalty for violations of land use laws and ordinances. See 30-A M.R.S.A. § 4452(3)(E) (1996). . The Charltons did have the right to challenge Delekto's actions — an appeal to the ZBA, an appeal from the ZBA to the Superior Court, and an appeal from the Superior Court to us. The Charltons did appeal the issuance of Delekto's building permit. The ZBA found that appeal untimely and the Superior Court agreed. The Charltons, however, did not appeal from the Superior Court's decision, nor did they challenge the issuance of the certificate of occupancy even though the trial court made detailed findings of Delekto's numerous violations of the applicable regulations. . The Charltons assert that Levasseur v. Dubuc, 229 A.2d 201 (Me.1967) supports their claim for a statutory cause of action for private nuisance under 30-A M.R.S.A. § 4302. Such is an overreading of Levasseur. In Levasseur, we held, [i]n view of the fact that the [municipal ordinance in question], and the enabling act under which it was adopted, are both silent as to the provision that a violation constitutes a nuisance, we hold that [the prede*375cessor of section 4302] is not effective under the legal aspects of the instant case. Levasseur, 229 A.2d at 203. Levasseur does not, however, imply the reciprocal. Johnson, 384 A.2d 698 (Me.1978), decided eleven years after Levasseur, at least by implication, pre-eludes an argument that by stating that a violation constitutes a nuisance the Legislature intended to create a right of action. Heretofore, Levasseur has never been cited in our case law to support a private right of action for a statutorily created nuisance. . "The interference must be substantial and unreasonable. Substantial simply means a significant harm to the plaintiff and unreasonably [sic] means that it would not be reasonable to permit the defendant to cause such an amount of harm intentionally without compensating for it.” W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 88 at 626 (5th ed.1984). However, "[w]hen defendant's conduct involves mere physical discomfort or mental annoyance, there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until it results in a depreciation in the market or rental value of the land.” . In regard to the intentional interference requirement, it has been noted that "often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the condition causing the interfer*378ence with full knowledge that the harm to the plaintiffs interests are occurring or are substantially certain to follow.” w. page keeton et al„ Prosser And Keeton On The Law Of Torts § 87 at 624-25 (5th ed.1984).

2023-08-22 21:22:49.906133+00

Calkins

CALKINS, J., with whom DANA and ALEXANDER, JJ., join, concurring. [¶ 41] I concur in the result, but I write separately because I think that it is unnecessary for the Court to determine whether 17 M.R.S.A. § 2701 or 30-A M.R.S.A. § 4302 provides a cause of action for the relief sought by the Charltons. Even assuming that there is a cause of action, there is no question that the Charltons must demonstrate that they have been damaged in order to obtain relief. The trial court found that the Charltons were not damaged, and that finding is supported by the evidence. That finding alone disposes of this case. The discussion of the availability of a cause of action is unnecessary to a disposition of this appeal.

2013-10-30 06:32:44.936893+00

Higgins

535 S.W.2d 513 (1976) Pamela Jane HERGENRETER et al., Respondents, v. Lillian M. SOMMERS et al., Appellants. No. KCD 27300. Missouri Court of Appeals, Kansas City District. March 29, 1976. *515 Sommers & Holloran, Inc., Don B. Sommers, St. Louis, for appellants. William K. Waugh, Jr., John C. Monica, Stephen D. Aliber, Kansas City, for respondents; Shook, Hardy & Bacon, Kansas City, of counsel. Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges. ANDREW JACKSON HIGGINS, Special Judge. Appeal from judgment which determined that respondents are the equitable owners of real estate and enjoined sale of the property in execution of a judgment against respondents' parents and others. The question is whether respondents are entitled to the benefit of a resulting trust for the full value of the property as found by the trial court. Affirmed. Pamela Jane Hergenreter, Gail Lynn (Hergenreter) Nieman, Vickie Ann (Hergenreter) Alvord, and Susan J. (Hergenreter) Moke are the daughters of Victor and Beulah A. Hergenreter. Lillian Sommers is a judgment creditor of Victor Hergenreter, Beulah Hergenreter, John W. Newhart, Ruth L. Newhart, and C. D. Newhart; H. C. Myers, Sheriff of Buchanan County, attempted the enjoined execution on the judgment against the real estate in question. On July 10, 1968, James W. and Dorothea V. Wilson conveyed the real estate in question to Victor and Beulah A. Hergenreter, husband and wife. On February 19, 1972, Victor and Beulah A. Hergenreter conveyed the property to their daughter Susan J. Moke. On August 28, 1969, Lillian M. and Samuel L. Sommers instituted suit on a promissory note executed by Victor Hergenreter, Beulah Hergenreter, John W. Newhart, Ruth L. Newhart, and C. D. Newhart. On January 14, 1971, Mrs. Sommers (Mr. Sommers having died) obtained judgment on the note. On August 22, 1973, Mrs. Sommers caused execution on the judgment to issue; and on August 24, 1973, the sheriff levied execution on the property in question, standing in the name of Susan Moke. Notice was given that all right, title, interest, claim, and estate of Victor and Beulah A. Hergenreter in the property would be sold to satisfy the execution. Respondents were not parties to the suit on the note in which Mrs. Sommers obtained her judgment, and brought this action to enjoin the execution sale. Respondents alleged: Although the deed from James W. and Dorothea V. Wilson to Victor and Beulah A. Hergenreter recited a consideration of $10 paid by Victor and Beulah A. Hergenreter, the consideration was paid by respondents who, at the time, were minors, in that they furnished their parents $2,250 "with the request, direction, express agreement and understanding" that their parents purchase the land in question for them by paying $2,250 to the grantors "as a cash down payment and executing a Deed of Trust for the balance of the purchase price." Victor and Beulah A. Hergenreter, on July 10, 1968, completed the purchase of the property as trustees for the children as agreed, using the $2,250 furnished them for the down payment and executing a deed of trust for the balance. Since the purchase, respondents have made all payments of principal and interest, have been the sole owners and recipients of all income derived from the property, and have paid all expenses incurred in operation and maintenance of the property. The deed of February 19, 1972, from Victor and Beulah A. Hergenreter to Susan J. Moke conveyed the property to her "to hold for herself and her sisters." Victor and Beulah A. Hergenreter do not now own, nor have they ever owned, any right, title, interest, or estate in the property in that it was at all times charged with a trust in favor of their children "in whom the beneficial interest lies." The foregoing allegations are sufficient to state a cause of action for a resulting trust in that consideration for the property *516 is said to have been paid by persons other than those in whose name the title was taken. Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392, 394[3] (1940); Scott v. Ferguson, 235 Mo. 576, 139 S.W. 102 (1911); Laughlin v. Laughlin, 291 Mo. 472, 237 S.W. 1024 (banc 1921). Appellant Sommers denied such allegations and the cause went to trial on the issues thus presented. Victor Hergenreter identified the general warranty deed from James W. and Dorothea V. Wilson, dated July 10, 1968, and the deed of trust on the property of the same date, executed by him and his wife to Peoples Home & Savings Association to secure their note for $13,650, payable in monthly installments of $235 beginning August 10, 1968. He and his wife and their four daughters previously had discussed such a transaction. The children had some money and some deposits in some savings accounts and it was decided that the children should take their monies and buy some real estate. The deed of July 10, 1968, was taken and the deed of trust was given on behalf of the children pursuant to this idea. When the transaction was first contracted, Mr. Hergenreter made an earnest money payment of $500. The total down payment when the deed was taken was $2,250. "I paid five hundred dollars down, and I paid five hundred dollars later, out of my funds, because the children could not get their accounts closed. * * * and they raised the rest of the money and made the down payment, and later they paid back the thousand dollars. * * * we didn't want to draw money out and lose some interest. It was delayed for several weeks so that they could draw their money, and at that time I made the down payment * * * I had an understanding and they knew * * *." The children repaid their father by checks for $800 and $200; the remaining $1,250 came from their savings accounts and a check they had for labor performed. Three checks were in evidence, drawn on the account of "Hergenreter partnership By Susan Hergenreter and/or Vickie Hergenreter." One dated June 10, 1968, to James W. and Dorothea V. Wilson for $1,250 and one dated July 25, 1968, to Victor Hergenreter for $800 were signed "Hergenreter Partnership by Susan Hergenreter"; the third dated November 4, 1968, to Victor Hergenreter for $200 was signed "Hergenreter Partnership by Vickie Hergenreter." Mr. Hergenreter deposited his checks in the First National Bank of St. Joseph. He had never had any interest in the children's partnership bank account which was opened in The American National Bank on June 27, 1968, with a deposit of $2,160.83, consisting of $77.25 in currency and silver for "advance rent collected by the seller which he turned over," and $2,083.58 made up of the following: Four checks drawn June 24, 1968, in payment of notes of the Kansas District of the Lutheran Church, endorsed by Gail Hergenreter for $291.83, Pam Hergenreter for $132.65, Vickie Hergenreter for $446.56, and Susan Hergenreter for $318.36; one check drawn June 20, 1968, in payment of a savings account in the Western District of the Lutheran Church, endorsed by Susan Hergenreter for $476.16, and a payment June 25, 1968, of $418.02 for microfilming work performed by the girls for the probate court. The five checks issued by the Lutheran Church also contained Mr. Hergenreter's name. He had no interest in the checks; they represented savings accounts the children had with the Lutheran Church compensation fund and came from money the children had accumulated over a period of years which they had received on various occasions and for labor performed. Also on July 10, 1968, Victor and Beulah A. Hergenreter executed a general warranty deed to their four daughters "to fulfill the agreement I had with the children that the property was theirs." The deed was not delivered or recorded "because there were four minor children involved"; it was his way of putting the understanding and arrangement in writing. His purpose was "to show that it was their property. In case anything happened to us, it would be theirs." The recorded deed of February 18, 1972, from Victor and Beulah A. Hergenreter *517 was to Susan J. Moke only because "by this time Susan had reached the age of twenty-one; the other three were still minors," and the purpose of the deed was "to get our property matters in order; to get the property transferred to the children." All rents and profits realized from the property were received by the Hergenreter children who placed them in their partnership account out of which they made regular payments on the deed of trust, paying it in full on schedule, and paid taxes and upkeep on the property. Mr. Hergenreter had made no attempt to treat the property as his own. Edwin A. Bird was the real estate broker who handled the real estate transaction in question. "The agreement on the contract was that they [buyers] would secure a loan within thirty days. And after about three weeks had gone by, Mr. Hergenreter informed us that the money he was getting for the down payment would be delayed until sometime around July 1. * * * And I went back to the seller, Mr. Wilson. He agreed that if he would pay five hundred dollars more down and hold it and leave it in escrow with me * * * they proceeded to make their loan arrangements at the Peoples Home Savings. Then I was called in to bring in the escrow money the 10th of July on the closing * * * the delay * * * was that the money was coming from the girls' savings accounts, that they were purchasing the property for them. They would be losing some interest so there was some time involved that he needed to arrange this." Susan J. Moke was present at the closing of the transaction in question to write the $1,250 check for the balance of the $2,250 down payment. She wrote the check on the Hergenreter partnership account which she and her sisters had set up "as soon as we received the funds from our savings accounts. * * * this was to be for the sole purpose of purchasing this apartment house, making the repairs on it, receiving rents on it, and just maintaining this property." She also wrote the $800 check to her father. "The partnership paid him for the thousand dollars we had borrowed from him to acquire this apartment house. * * * My father acquired it for us; that was always our understanding." Mrs. Moke identified a number of checks drawn on the partnership account by herself or Vickie, and ultimately Gail, in favor of Peoples Home Savings in full payment of the purchase money note; a series of deposit slips showing deposits of all rentals from the property in the partnership account; and income tax returns which she and her husband filed for 1969, 1970, 1971, and 1972, in which she declared one fourth of the net income from the property as taxable income to her. Appellant Sommers contends: (I) that under the facts and circumstances existing at the time the transfer of title to the property to Victor and Beulah Hergenreter, no resulting trust arose in favor of respondents; (II) that by execution of the unrecorded and undelivered deed, Victor and Beulah Hergenreter evidenced an intention to retain title and control of the property in themselves, thus defeating any concept of a resulting trust at the time of the transaction; (III) that a resulting trust, if any, in benefit of respondents is limited to 7.9% of the proceeds of the execution sale; (IV) that no other trust can exist under the facts and circumstances because the petition and evidence violate Sections 456.010, 442.380, and 442.400, RSMo 1969, requiring instruments purporting to create a trust to be in writing and recorded. Appellant argues: (I) that the facts and circumstances do not satisfy the rule of the cases that a resulting trust must arise, if at all, at the instant the deed is taken and cannot be created by subsequent occurrences; that no resulting trust arose because the agreements between respondents and their parents were made by children who could not become legally obligated to comply with them, were at best "family agreements," should not have been considered, and the children's performance of them was subsequent to the time the deed was taken; (II) that no resulting trust arose because the unrecorded and undelivered deed and *518 the subsequent deed to Susan J. Moke showed that title was to pass to the children upon the happening of an event in the future "in case anything happened to us." Appellant asserts that "there was much controversy" about the source of funds of the children which were deposited in their Hergenreter partnership account to argue (III) that, at best, $1,250 of the purchase price of $15,750 was paid by the children which amounts to an interest in them of 7.9%, and that since the remainder of the purchase price came from the obligation of Victor and Beulah Hergenreter paid from rents received from the property, such additional sum should not be considered to increase their interest; (IV) that any agreement between respondents and their parents was not in writing and could not give rise to an express trust. Examination of respondents' petition shows that although "express agreement" was used in describing the understanding between respondents and their parents, there was no attempt to plead an express trust. As previously determined, the petition is sufficient to plead a cause of action for a resulting trust; and, as recognized by appellant, the case was "tried on the theory of a resulting trust in favor of plaintiffs." A resulting trust arises by operation of law from the facts in a transaction, and not by operation of an agreement. If the transaction is an express oral agreement providing for a conveyance of land, it becomes at once an express trust, and not a resulting trust; it cannot be established by parol evidence due to the prohibition of the Statute of Frauds. Bender v. Bender, 281 Mo. 473, 220 S.W. 929, 930[5] (1920). However, existence of an express oral agreement on the part of a grantee to hold land for the payor of the consideration does not destroy the resulting trust or cause the transaction to be judged as an attempt to create an express trust. Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 148[4-6] (1955); Padgett v. Osborne, 359 Mo. 209, 221 S.W.2d 210, 212[3] (1949); Carr v. Carroll, 178 S.W.2d 435, 437[3] (Mo.1944); Mays v. Jackson, supra; Condit v. Maxwell, 142 Mo. 266, 44 S.W. 467, 469 (1897); Smithsonian Institute v. Meech, 169 U.S. 398, 18 S. Ct. 396, 42 L. Ed. 793 (1898). The evidence shows it was understood that respondents' parents would purchase the real estate in question and hold it for the benefit of their daughters, rather than to create an express trust for future conveyance of land. Such agreement showed the relationship of the parties, the nature of the transaction between them, and that the consideration of the transaction was paid by or was the obligation of persons other than those in whose name the deed was taken. The oral agreement confirmed the existence of a resulting trust and was not the vehicle of an invalid express trust. Mays v. Jackson, supra. See also 2 Bogert, Trusts & Trustees, §§ 454, 461 (1964); 3 Scott on Trusts, § 404.1 (1967). Admission of evidence of the understanding or agreement between respondents and their parents is consistent with the rule that parol evidence is admissible to establish a purchase money resulting trust; and since one of the issues is the intent of the parties prior to and contemporaneously with acquisition of legal title to the property, existence of a resulting trust is strengthened by consistent oral understandings that the grantees have taken title on behalf of beneficiaries of the trust. Decker v. Fittge, supra; Padgett v. Osborne, supra; Carr v. Carroll, supra; Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152, 156[6] (1956). Under these authorities the testimony of Victor Hergenreter and Susan Moke was admissible to show the intent and understanding between respondents and their parents that the parents purchased the property and took legal title for benefit of their daughters. Similarly, the unrecorded deed of July 10, 1968, was properly admitted on the issue and in confirmation of the intent and understanding of the respondents and their parents. Missouri follows the general rule that where one pays the purchase price for land with legal title taken in another, a presumption arises that the latter holds the *519 property under a resulting trust for the payor. Davis v. Roberts, supra; Carr v. Carroll, supra; Ferguson v. Stokes, 269 S.W.2d 655 (Mo.1954); Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981 (1936); Scott, supra, § 440. This theory is founded on an assumption that one who provides purchase money intends to receive the benefit of the purchase and the law will imply that intention in absence of rebutting facts and circumstances. 2 Bogert, supra, § 454. Application of the rule is peculiarly appropriate where a child furnishes the purchase money, and for reasons of convenience, minority, or otherwise, title is taken in his parents. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 614-615 (1941). In such circumstances, the presumption is that of a resulting trust in favor of the child as opposed to a presumption of gift or advancement. Padgett v. Osborne, supra, 221 S.W.2d l.c. 212; Davis v. Roberts, supra, 295 S.W.2d l.c. 156. In accordance with the agreement and understanding at the time the property in question was acquired, respondents repaid their parents the $1,000 advanced for earnest money, paid the $1,250 remaining on the down payment from their savings, and paid the obligation of the $13,500 deed of trust securing the balance of the purchase price from funds derived by them from rental of the property. Thus, under the authorities, a resulting trust for the full value of the property arose in favor of respondents. Contrary to appellant's assertion, there is no controversy concerning the source of funds in the "Hergenreter partnership account." Evidence shows that all monies in that account at its inception came from the four Hergenreter children. Victor Hergenreter "called for" payments of the savings accounts, but he did so at the request of his daughters. The evidence through the testimony of Mr. Hergenreter and Mr. Bird also shows that the advance of the $1,000 earnest money by the parents was part of the agreement and understanding between respondents and their parents in order to avoid a loss of interest if the children's savings had been withdrawn earlier. There is no question that the advance was repaid after the transaction was concluded. Appellant's argument that the advance did not give rise to a resulting trust because repayment occurred subsequent to the transaction is contrary to the rule that where one establishes he has reimbursed the purchase price to the grantee pursuant to an agreement with the grantee to do so made prior to passage of legal title to the grantee, the payor is entitled to a resulting trust in his favor; i.e., where a grantee lends funds to the trust claimant for use in purchasing property, a resulting trust arises subject to repayment of the loan. Meyer v. Meyer, 285 S.W.2d 694, 700 (Mo.1956); Scott v. Ferguson, supra; Rest., Trusts 2d § 448 (1959); Scott, supra, § 448. In such situation, the result is the same as though the grantee lent the amount to the trust claimant who in turn paid the grantor, and the conveyance was made to the lender. Although the money is not paid directly by the trust claimant to the grantor, "* * it is paid for him by the [grantee] and the [trust claimant] is in substance the person who pays the purchase price." Rest., supra, comment a. By virtue of the loan, the money furnished for the purchase is deemed the trust claimant's and not the grantee-lender's. 5 Bogert, Trusts, § 74, Hornbook Series (1973). Appellant's similar argument that payment of the deed of trust by respondents did not give rise to a resulting trust because payment occurred subsequent to the transaction is contrary to similar statement of the same rule, i.e., that where a trust claimant makes payments with respect to the land after passage of title but pursuant to a pre-conveyance agreement to do so, he is entitled to a resulting trust. Shelton v. Harrison, 182 Mo.App. 404, 167 S.W. 634, 638[9] (1914); Crowley v. Crowley, 72 N.H. 241, 56 A. 190, 192 (1903); Rest., supra, § 456, comment d; 2 Bogert, supra, § 456. A resulting trust arises if the grantee uses his own credit in the trust claimant's behalf and purchases the property *520 pursuant to a prior agreement that the trust claimant will exonerate the grantee and satisfy the indebtedness incurred. Meyer v. Meyer, supra; Mays v. Jackson, supra; Scott v. Ferguson, supra. Crowley v. Crowley, supra, has been recognized in Missouri decisions, e.g., Adams v. Adams, supra, Cassity v. Cassity, 240 S.W. 486 (Mo.App.1922), and is in point. Plaintiff son, age 17, made a down payment on a farm he desired to purchase. The seller refused to convey to a minor; plaintiff's father took legal title and executed a note and mortgage for the balance of the purchase price, all pursuant to an agreement between father and son that the son would make the payments on the note, which he did. The father died; plaintiff's stepmother refused to convey legal title to plaintiff, and he brought suit to establish a resulting trust. The stepmother argued that no resulting trust was possible because the full purchase price was not paid at the time of the transaction in that the plaintiff was not obligated on the note and his payments occurred subsequent to the transaction. The court rejected her argument and emphasized that if the son induced his father to execute the note and at the time of its execution agreed to pay it, a resulting trust arose by implication. "It matters not how it is paid—whether by money on hand or borrowed, or by the promise or obligation of the cestui que trust himself, or of some other person procured by him for the purpose." 56 A. l.c. 192. Unenforceability of the minor's promise to pay, if so, is immaterial because payment of the obligation has been made in full. Crowley v. Crowley, supra. Appellant suggests that Davis v. Roberts, supra, is "closely analogous" and supportive of her position. However, trust claimant Davis, in contrast to the disabilities of the Hergenreter minors, was an adult livestock trader at the time the property in question was purchased and could have taken title in his own name and executed the deed of trust in his own right if his intent was to own the entire beneficial interest in the property. Also by way of distinction, it was noted that claimant Davis purchased rather than paid notes secured by the deed of trust, and "did not consider the notes * * to be his personal obligation and he had assumed no unconditional obligation to pay any of these notes." 295 S.W.2d l.c. 157. Appellant's argument that the testimony of Victor Hergenreter with respect to the unrecorded deed showed that the property was to vest in the children upon the death of their parents overlooks the evidence which shows that the intention of respondents and their parents was that the children were immediately vested with the beneficial interest in the property at the time of its purchase. Ambiguity, if any, in Mr. Hergenreter's testimony was resolved by the court in favor of the deed being evidence of present interest in the children rather than ownership upon future happening. Cf. Bender v. Bender, supra, 220 S.W. l.c. 930[5], where no trust resulted in the grantees' children at the time the conveyance was made "but it was contingent upon the happening of an event in the future— the separation of their parents [grantees]." Nor does the recorded deed to Susan J. Moke defeat a resulting trust in these circumstances, because the evidence surrounding it reinforces the understanding that the parents were holding legal title for their children during and because of their minority. Adams v. Adams, supra. Insofar as the evidence in this case shows, Mrs. Moke now holds the legal title to the property for the benefit of herself and her sisters. Judgment affirmed. All concur.

2013-10-30 06:32:45.036499+00

Terry

774 A.2d 320 (2001) AFFORDABLE ELEGANCE TRAVEL, INC., Appellant v. WORLDSPAN, L.P., Appellee. No. 97-CV-57. District of Columbia Court of Appeals. Argued February 25, 1998. Decided June 14, 2001. *323 Curt S. Hansen, Washington, DC, for appellant. Mitchell B. Rosenfeld, for appellee. Before TERRY, SCHWELB, and FARRELL, Associate Judges. TERRY, Associate Judge: Worldspan, L.P., sued Affordable Elegance Travel, Inc. ("AET"), a travel agency, for money due under a lease agreement. The case was tried to the court, sitting without a jury. At the close of Worldspan's evidence, AET moved for a directed verdict,[1] which was denied. The trial proceeded, and after hearing AET's evidence, the court found AET liable to Worldspan but continued the case to a future date for a further hearing on damages. At the conclusion of that hearing, the court awarded $27,559.73 to Worldspan. AET filed a motion, based on Super. Ct. Civ. R. 59(e), to alter or amend the judgment or, in the alternative, for a new trial. The court ruled, however, that the motion was not timely filed under Rule 59(e). It considered the motion instead under Super.Ct.Civ.R. 60(b) and denied it in its entirety. We hold that the motion was timely, and thus we remand the case to the trial court with directions to reconsider the motion under Rule 59. We reject AET's other contentions and affirm the judgment on the merits. Our affirmance, however, is subject to the trial court's ultimate decision on remand with respect to the post-trial motion. I On August 20, 1989, PARS Marketing ("PARS"), a general partnership, executed a contract in which it agreed to lease an automated computer airline reservation and ticketing system and provide other services to AET over a period of five years. The contract became effective on October 13, 1989, after the equipment was installed and operational. When PARS *324 was later acquired by Worldspan, a company whose business (according to one of its witnesses at trial) "is to lease equipment and services to travel agencies," Worldspan assumed the contract. At trial there was a dispute about the identity of the other party to the contract. Edward Mascoll, who owned a New York company named Travel Associates, Inc.,[2] along with his wife, and later established AET in the District of Columbia, testified that he negotiated the contract with PARS. AET maintained that it was not liable under the contract because Mr. Mascoll had signed the contract on behalf of Travel Associates, not AET. Mr. Mascoll stated that he incorporated AET in the District of Columbia in 1989 and wanted PARS to provide him with equipment so that he could begin to operate AET as a travel agency.[3] However, because AET did not yet have authority from the Airlines Reporting Commission to issue tickets,[4] it was linked by computer to Travel Associates in New York, which issued tickets on AET's behalf. Mr. Mascoll described AET as "basically a holding company for transactions that Travel Associates had created in the Washington area." He testified that he "wanted to branch into the Washington area, and the only way they would consider giving me a computer reservation system was that I had to negotiate the original contract and then bridge the new site on as well." Therefore, he said, PARS advised him that it would execute two contracts with Travel Associates, one for the New York business and one for the District of Columbia business.[5] The District of Columbia contract is at issue in this case. Mr. Mascoll testified that he received two copies of the District of Columbia contract. Both copies named "Travel Associates, Inc." as the "Customer." On one copy, Mr. Mascoll wrote in by hand the name "Affordable Elegance Travel" on the contract next to the word "Customer" in two places, page 1 and page 9; on the other copy, however, he wrote AET's name on page 1 only. In addition, on page 10 of both copies of the contract, Mr. Mascoll wrote "July 27, 1989 Wash. D.C.," the date and location of AET's incorporation, on the line seeking incorporation information for the "entity" entering into the contract. Cheryl Sampson executed the contract on behalf of PARS.[6] She testified that Mr. Mascoll gave her permission to modify the contract to name AET, rather than Travel Associates, as the other contracting party and instructed her to write in the name "Affordable Elegance" and initial it. Ms. Sampson specifically stated, "[W]hen I received the contract, I noticed the different name on it, [and] I contacted Mr. Mascoll by telephone to inquire as to what the correct name should be and was advised it's Affordable Elegance." Mr. Mascoll denied *325 ever having had such a conversation with Ms. Sampson. The two copies of the contract, Plaintiff's Exhibit 1 and Defendant's Exhibit 1, reveal that Ms. Sampson did not make identical changes in each copy. On the copy that she signed and sent to Mr. Mascoll, Defendant's Exhibit 1, she simply placed the letters "d/b/a" in front of the place where Mr. Mascoll had written "Affordable Elegance Travel" on page 1. On the copy that PARS kept, Plaintiff's Exhibit 1, she (or someone else at PARS) drew a line through "Travel Associates, Inc." and "d/b/a" on pages 1, 9, and 10 of the contract. On October 13, 1989, the leased equipment was installed at AET's place of business, and AET began to pay the monthly rental fee. In January 1993, however, AET defaulted on the contract by failing to make the required monthly payment. According to Mr. Mascoll, AET was having financial difficulties because Travel Associates had ceased to do business and was no longer paying commissions to AET. Worldspan terminated the contract and, on February 20, 1993, sent AET a bill stating that AET owed Worldspan $37,823.54, including a past due balance of $6,061.60. Mr. Mascoll, as managing director of AET, wrote three letters to Worldspan on AET stationery dated January 11, February 13, and March 9, 1993. Each letter complained about Worldspan's termination of the contract and the severe economic consequences that it had for AET. Mr. Mascoll testified that at some point after the contract had been terminated, a man came to AET's offices to remove the leased equipment, but when Mr. Mascoll "asked him to please give me his identification and also would he be kind enough to give me a receipt of what he was taking out, he said absolutely — looked at me like I was crazy and walked out, and the equipment is still in that office today in the back room.... I've called them. They didn't respond, and I just, as I said, the equipment is there." AET introduced a statement that Worldspan sent to AET on November 15, 1994, which reflected a credit of $37,823.54 and stated that the new balance of AET's account was zero. Debra Talbot, an accountant at Worldspan, testified that this credit was given because "it was deemed that we would not be able to collect internally, and it is company policy and procedure to use an outside counsel for our collection efforts. Our collection policy and procedure is at the point that those files are sent outside of the company, we transfer any balances on our active records to a separate account. We call this our write-off account.... So it does not mean there is not an actual balance due; it just means that we are no longer actively trying to collect that money." In addition, she said, the statement "was sent [to AET] in error." II AET contends that the trial court "should have found as a matter of law that [AET] was not a party to this contract." The court actually ruled just the opposite: that AET was a party because, it found, Mr. Mascoll was acting as AET's agent (not the agent of Travel Associates) when he entered into the contract with PARS. [T]he court concludes, largely based on Ms. Sampson's credible testimony and the entry on page 10 [of the contract] of the date and place of incorporation of Affordable Elegance, that ... the mutual obligations under this contract were the obligations of PARS and its assignee Worldspan LP and Affordable Elegance Travel, Incorporated. ... [F]or reasons that I'll denote as internal accounting, the company that *326 Mr. Mascoll operated in Washington, he operated through Travel [Associates], Inc., the original company, for his own personal reasons. But I think that it is beyond a mere preponderance but clear and convincing evidence in this record that, originally and at all times, the plaintiff and defendant were dealing with each other as PARS, and then Worldspan, and Affordable Elegance Travel, Incorporated. There is nothing other than ... what I've euphemistically designated as internal accounting that motivated [Mr. Mascoll] to do business in the name of Travel Associates. He had actually moved away from that, except for his personal obligations, and was for all the public Affordable Elegance Travel, and he was to the plaintiff Affordable Elegance Travel. There was ample evidence to support the court's findings. Ms. Sampson testified that Mr. Mascoll specifically told her that he was acting on behalf of AET. Although AET presented contradictory testimony, it was within the province of the court, as trier of fact, to believe Ms. Sampson. In addition, both copies of the contract indicated that Mr. Mascoll was acting as an agent for AET. For example, on page 10, Mr. Mascoll himself wrote the date and place of AET's incorporation on the line seeking incorporation information about his principal. Even Mr. Mascoll's own testimony shows that AET, rather than Travel Associates, was the entity set up to do business in the District of Columbia and that PARS insisted on two separate contracts, one for the New York business (with Travel Associates) and one for the District of Columbia business (with AET). When one person acts as the agent of another, the identity of the principal is a question of fact, as is the issue of whether the agency itself was disclosed to the other party to the transaction. See American Insurance Co. v. Smith, 472 A.2d 872, 874-875 (D.C.1984). The trial court, sitting as trier of fact, found that Mr. Mascoll was AET's agent and that he disclosed that fact to Ms. Sampson. The evidence supported both of these findings. D.C.Code § 17-305(a) (1997) provides that when a case is tried without a jury, "the [appellate] court may review both as to the facts and the law, but the judgment must not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." See also, e.g., Butler v. Whitting, 647 A.2d 383, 384 (D.C.1994). On the present record, we cannot say that the findings which AET challenges are clearly erroneous or "plainly wrong." We therefore reject AET's contention that AET was not proven to be a party to the contract. III AET contends that the trial court erred in admitting what it characterizes as parol evidence to determine the correct party to the contract because "there was no ambiguity in the terms of the contract." The trial court rejected this argument, stating: If we're talking about interpretation of the terms of the contract, then you could invoke your parol evidence rule. But we're talking here about who were the parties. Your parol evidence rule is inapplicable. In determining who are the executing parties here, it is-I think it is quite appropriate for me to determine at the time that this contract was entered, particularly where you're talking about an individual who is the fifty percent shareholder of one corporation and apparently the other entity is wholly owned by himself.... So with someone who has the ability to sit at a table and be three different people at once, I think that is altogether appropriate for the *327 court to determine who the other parties thought they were dealing with. And it is not a violation of the parol evidence rule. Under the parol evidence rule, "[e]xtrinsic or parol evidence which tends to contradict, vary, add to, or subtract from the terms of a written contract must be excluded." Fistere, Inc. v. Helz, 226 A.2d 578, 580 (D.C.1967) (citations omitted); accord, e.g., 17A AM.JUR.2D Contracts § 402 (1991) ("parol evidence is inadmissible to vary or contradict the terms of a valid, and plain and unambiguous, written contract").[7] But the rule applies only to the actual terms of the contract itself, not to the preliminary determination of who the contracting parties were. "If a document is facially unambiguous, its language should be relied upon as providing the best objective manifestation of the parties' intent." 1010 Potomac Associates v. Grocery Manufacturers of America, Inc., 485 A.2d 199, 205 (D.C.1984). The identity of the parties is a different matter entirely, and, as the trial judge recognized, the parol evidence rule has no bearing on that question. Indeed, the rule applies only to written contracts that have been "duly signed and executed," Gagnon v. Wright, 200 A.2d 196, 198 (D.C.1964), and before a contract may be regarded as "duly signed and executed," the identity of the parties must be established, or at least there must be evidence from which a trier of fact could ascertain their identity if it is in dispute. Thus we hold that in this case, because the identity of one of the parties to the contract was at issue, the trial court did not err in admitting the testimony of Ms. Sampson which directly addressed that issue. See Becker v. Farmers' Mutual Fire Insurance Co., 99 S.W.2d 148, 153 (Mo.App.1936) (upholding admission of extrinsic evidence to identify the insured under a contract of insurance). As for the contract itself, AET contends that it was so ambiguous that it was unenforceable, and that in any event any ambiguity should have been resolved against Worldspan, the successor in interest to the actual drafter (PARS). AET relies solely on Missouri law to support these contentions, stating that the contract specified that it was to be construed under Missouri law. The trial court concluded that there was no choice-of-law issue because its decision would be the same under either Missouri or District of Columbia law. See Cellular Radio Corp. v. OKI America, Inc., 664 A.2d 357, 359 n. 2 (D.C.1995) (declining to address a choice-of-law issue because "the result is the same under New Jersey law and District of Columbia law"). This court has stated that, in order to be enforceable, "a contract must be sufficiently definite as to its material terms (which include, e.g., subject matter, price, payment terms, quantity, and duration) that the promises and performance to be rendered by each party are reasonably certain."[8]Rosenthal v. National Produce Co., 573 A.2d 365, 370 (D.C.1990) (citation omitted); see also Georgetown Entertainment Corp. v. District of Columbia, 496 A.2d 587, 590 (D.C.1985). If the terms of the contract are clear enough for the court to determine whether a breach has occurred and to identify an appropriate remedy, it is enforceable. Rosenthal, 573 A.2d at 370 (citation omitted). Because the contract in this case was definite as to all of its material terms and enabled the court to determine whether a breach had occurred *328 and to determine a remedy (i.e., to calculate damages), we hold that the trial court did not err in rejecting AET's argument the contract was so ambiguous as to be unenforceable. But if the contract was enforceable, says AET, it should have been construed against PARS and Worldspan as the drafter of the document. It is settled law that any ambiguity in a contract will be construed against the drafter. See, e.g., Sagalyn v. Foundation for Preservation of Historic Georgetown, 691 A.2d 107, 114 (D.C.1997). This court has held, however, that it is "appropriate ... to consider the contract first under the reasonable person standard and then, if no result is reached, to apply the rule [construing the contract against the drafter] as a rebuttable presumption."[9]1901 Wyoming Avenue Co-operative Ass'n v. Lee, 345 A.2d 456, 463 (D.C.1975). Missouri law is to the same effect.[10] In this case, as we have seen, there was sufficient evidence to enable a reasonable person to determine the intent of the parties. Indeed, the principal issue at trial involved not the terms of the contract but the identity of one of the parties. We hold, therefore, that the trial court did not err in concluding that there was no ambiguity in the terms of the contract and hence no need to apply the presumption. IV AET contends that the trial judge "unduly assisted and favored" Worldspan by continuing the trial for additional proof on the issue of damages. According to AET, the continuance showed that the judge was improperly biased toward Worldspan. The record refutes this assertion. The judge's statements make clear that he continued the case solely to determine the value of the leased equipment, which remained in AET's possession, and that Worldspan had adequately proven other damages: I think that [Worldspan's] other charges are all within the contract and proved under the contract. But I think that there would have to be evidence of the value of the equipment. I don't think I can simply take an invoice. That's not the way you prove value. And beyond that, I don't think I can ignore the testimony that the equipment is sitting there ready to be picked up. So I'm going to give you some time to figure that out. After AET's counsel objected to the continuance, the following occurred: THE COURT: That's a good point. I hate to continue things myself. But it could go very bad for your client if I just entered the damages based on this invoice. MR. HANSEN [counsel for AET]: Your Honor, if you were to enter the damages based on this invoice, I think I have a very good basis for appeal. THE COURT: I couldn't argue with you on that. On the other hand — okay, if you have got eleven thousand four hundred ninety-nine dollars worth of equipment you're going to return, then, you *329 see, I can credit you for that. But I can't credit you with it until you have returned it. At the subsequent hearing on damages, the judge stated again that he had continued the case in the hope that Worldspan would have an opportunity to retrieve the equipment, so that he would not have to consider its value in calculating damages. On this record there is no basis for concluding that the judge was biased, i.e., that "the impartiality of the judge might reasonably be questioned." Talley v. Varma, 689 A.2d 547, 550 n. 1 (D.C.1997) (citations omitted). On the contrary, it is evident from the transcripts that the judge did not continue the proceeding in order to grant Worldspan an unfair advantage; on the contrary, he did so in the hope that AET would return the equipment to Worldspan and thus would be subject to a lesser award of damages.[11] AET's claim of bias is entirely unfounded. V AET contends that the evidence was insufficient to show that Worldspan was entitled to damages in the amount of $27,559.73. On that subject the judge said: I arrived at that figure by accepting the Plaintiff's Exhibit 2, which is their customer statement, and adjusting the equipment rent through contract term from the standard rate that Ms. Talbot testified that the person preparing for this lawsuit used, which was $524. I adjusted downward the $294 figure that the Defendant had expected, and that the Plaintiff had contemplated based upon the expectation that the contract would have been fulfilled. Why did I make that adjustment downward? Because it is the value at which these two parties bargained. And notwithstanding the breach by the Defendant, there is no other substantive evidence to establish the value except the evidence that that's what they agreed to.... The other charges, which include the equipment that's now in possession of the Defendant, can be used to adjust this judgment downward further if the Defendant ships the equipment back to the Plaintiff. Under District of Columbia law, "[a] plaintiff need prove damages only with reasonable certainty." Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 549-550 (D.C.1981) (citations omitted); see W.G. Cornell Co. v. Ceramic Coating Co., 200 U.S.App. D.C. 126, 129, 626 F.2d 990, 993 (1980) ("the fact of damages and a reasonable estimate must be established" (citations omitted), cited with approval in Cahn v. Antioch University, 482 A.2d 120, 130 (D.C.1984)). The trial court's award will be upheld as long as it is a "just and reasonable estimate based on relevant data," even if it is not proven with mathematical precision. LaVay, 431 A.2d at 550; accord, e.g., Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982). In this case, Worldspan relied on three evidentiary sources to prove its damages: (1) the contract itself;[12] (2) the February *330 2, 1993, customer statement from Worldspan to AET, which stated that AET owed Worldspan $37,823.54; and (3) the testimony of Debra Talbot, a Worldspan employee, at the hearing on damages, in which she explained the contractual provision and the customer statement. Ms. Talbot's testimony established that the rental cost of the equipment through the term of the contract was $15,889.81.[13] Adding that figure to the amounts set forth in the customer statement (Plaintiff's Exhibit 2) and the value of the unreturned equipment itself, we find ample basis in the evidence for the figure that the court came up with, particularly when the court's explanation of its award, quoted above, is taken into account. Applying the relevant case law, we find no error in the damages award. VI On October 18, 1996, the court rendered a judgment in favor of Worldspan in the amount of $27,559.73. That judgment was not entered on the docket, however, until October 23. On November 1, nine calendar days later, AET filed a motion to alter or amend the judgment or, in the alternative, for a new trial, citing Civil Rule 59. In its motion AET challenged the judgment on various grounds and also alleged that it had certain newly discovered evidence which, it maintained, would entitle it to a new trial.[14] Worldspan filed a response on November 12, contending inter alia that the motion was untimely and contesting AET's other assertions. The court denied the motion under Rule 59 on the ground that it "was not timely filed within 10 days of entry of the judgment...." However, it did consider the motion under Rule 60(b), but denied the motion under that rule as well because it "[did] not now find any extraordinary circumstances or undue hardship upon the Defendant to justify relief in the form of altering or amending the judgment." Under Rule 59(b) and (e), any motion for new trial, or any motion to alter or amend the judgment, "shall be filed no later than 10 days after entry of the judgment." But because a judgment is not effective until it is entered on the docket "as provided in Rule 79(a)," see Super.Ct.Civ.R. 58, this court has held that "the controlling date for purposes of computing the ten-day period is ... the date on which the order was docketed by the Clerk." Vincent v. Anderson, 621 A.2d *331 367, 371 (D.C.1993); see Super.Ct.Civ.R. 79(a) (outlining procedures for entry of order or judgment by clerk). In this case, the judgment was not docketed until October 23, 1996; AET's motion was filed on November 1, 1996. Super.Ct.Civ.R. 6(a) establishes the procedure for computing time: In computing any period of time prescribed or allowed by these rules ... the day of the act, event, or default shall not be included. The last day of the period so computed shall be included.... When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. [Emphasis added.] Because October 23, 1996, was a Wednesday, the date on which the motion was filed, November 1, was only the seventh day (excluding Saturday and Sunday) after entry of the judgment, and the motion was timely. Indeed, even if the date of the court's actual ruling — Friday, October 18 — were considered as the date of the judgment, November 1 was only the tenth day (excluding two Saturdays and two Sundays) after that date, and the motion would still have been timely. Consequently, the trial court erred in denying the motion as untimely under Rule 59.[15] The court, erroneously believing AET's motion to be time-barred under Rule 59, considered the motion under Rule 60(b), which has longer time limits.[16] The court in its discretion may do so if a Rule 59 motion is not timely filed, see State Farm Mutual Automobile Insurance Co. v. Brown, 593 A.2d 184, 185 (D.C.1991), so long as the content of the motion could have been considered under Rule 60 rather than (or in addition to) Rule 59. Thus we must determine whether the motion was really a Rule 59(e) motion or a Rule 60(b) motion, or whether it might possibly fit within either rule. This court has often stated that "[t]he nature of a motion is determined by the relief sought, not by its label or caption." Wallace v. Warehouse Employees Union, 482 A.2d 801, 804 (D.C. 1984) (citations omitted). In determining whether a motion was made under Rule 59(e) or Rule 60(b), the court examines "whether, for the first time, the movant is requesting consideration of additional circumstances; if so, the motion is properly considered under Rule 60(b), but if the movant is seeking relief from the adverse consequences of the original order on the basis of error of law, the motion is properly considered under Rule 59(e)." Id. If a motion would be proper under either rule, this court has generally treated the motion "as made pursuant to Rule 59(e) if timely filed under that rule...." Id. at 805. In this case, the motion contended in part that the trial court had erred in its legal rulings, which would make it a Rule 59(e) motion. In addition, the motion sought a new trial based on newly discovered evidence, which (if timely) would bring it within Rule 59(b). See Rule 60(b)(2). Having determined that the motion was timely filed under Rule 59(b) and *332 (e), we hold that AET is entitled to have the trial court consider its motion under the somewhat more lenient standards of that rule, rather than Rule 60(b). In so holding, we follow two recent decisions of this court which we regard as controlling: Williams v. Vel Rey Properties Inc., 699 A.2d 416, 418 (D.C.1997), and District of Columbia Housing Finance Agency v. Harper, 707 A.2d 53 (D.C.1998). In Williams the trial court denied a motion for reconsideration of an earlier order on the ground that it had not been filed within the ten-day period allotted under Rule 59(e). This court, concluding that the motion was timely and that it otherwise qualified as a Rule 59(e) motion, remanded the case "for reconsideration of the ruling under the proper standard." 699 A.2d at 420-421 (citations omitted). A few months later, in Harper, we similarly concluded that the trial court had erred in denying a motion as untimely under Rule 59(e). Following Williams, we held that we were "obliged to remand to permit the trial court to rule on the merits of [the Rule 59(e)] motion." 707 A.2d at 57. We follow the same course here. VII Insofar as this appeal is taken from the judgment rendered after trial, the judgment is affirmed. Insofar as it is taken from the denial of the Rule 59(e) motion as untimely, the case is remanded to the trial court for reconsideration of that motion on the merits, in accordance with Williams and Harper. If the trial court on remand concludes that AET is entitled to relief, it may vacate all or part of the judgment or enter such other order as it deems appropriate. Remanded for further proceedings. NOTES [1] The trial court correctly treated this motion as a motion to dismiss under Super.Ct.Civ.R. 41. "A defendant's motion for judgment at the close of the plaintiff's evidence in a nonjury case ... is governed, not by the Super.Ct.Civ.R. 50(a) directed verdict standard but, rather, by Super.Ct.Civ.R. 41(b) providing for involuntary dismissal." Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1054 (D.C.1980) (citations omitted). [2] Travel Associates ceased to exist sometime in early 1993. [3] Mr. Mascoll and his wife, the other officer and owner of Travel Associates, were in the process of divorcing. As part of their divorce settlement, they agreed that Mr. Mascoll would operate a travel agency in the District of Columbia and that Mrs. Mascoll would continue to operate Travel Associates in New York. [4] AET did not receive such approval until July 1993. [5] Mr. Mascoll said that PARS informed him that it would not contract with a company which was not certified by the Airline Reservation Commission. Cheryl Sampson, who represented PARS in the contract negotiations, denied having made such a statement and testified that such certification was not a prerequisite to contracting with PARS. [6] At the time of the contract, Ms. Sampson was a sales and services specialist for PARS; at the time of trial, she was district manager for Worldspan. [7] We note that "the parol evidence rule is a matter of substantive law, not a mere rule of evidence." Ozerol v. Howard University, 545 A.2d 638, 641 (D.C.1988) (citations omitted). [8] Whether a contract is enforceable is a legal issue that this court considers de novo. Hart v. Vermont Investment Ltd. Partnership, 667 A.2d 578, 582 (D.C.1995). [9] The trial court did not state whether it applied a presumption in favor of AET; however, it appears from the court's comments that even with such a presumption, it would have come to the same conclusion. See the language quoted at page 325-26, supra. [10] See Specialty Restaurants Corp. v. Gaebler, 956 S.W.2d 391, 395 (Mo.App.1997) ("When all else fails, `an agreement that is ambiguous should be construed against the drafter'" (citations omitted; emphasis added)); Aluminum Products Enterprises, Inc. v. Fuhrmann Tooling & Manufacturing Co., 758 S.W.2d 119, 124 (Mo.App.1988) (contract will be construed against the drafter only "when other means of construction fail and there is an absence of other evidence to show what the parties intended" (citations omitted)). [11] Because AET did not return the equipment, the judge ultimately included its value, $11,146.00, in the damages award, but stated nevertheless that AET would receive a credit in that amount if it returned the equipment to Worldspan. [12] Section 12(f) of the contract provides: In the event that, prior to the expiration of this Agreement, Customer is in default of this Agreement and it is terminated as a result thereof, Customer shall promptly pay to [PARS] ... liquidated damages in an amount calculated as follows: (i) eighty percent (80%) of the amount of total monthly charges set forth in this Agreement on any Schedule or Schedules attached hereto multiplied by the number of months remaining on the term of this Agreement; plus (ii) an amount equal to the Customer's actual average number of net airline bookings per month through the PARS System ... plus (iii) any previously unreimbursed costs incurred by PARS in connection with this Agreement including, but not limited to, training, installation, removal, modification of Equipment and Equipment rental or other charges waived or amount advanced by [PARS] based upon Customer's delivery of this Agreement. [13] Ms. Talbot stated, inter alia: Basically, the equipment was shown at a standard fee of $524 a month, and the discounted fee was, on this piece of paper, $294 a month. And the difference in those two calculations times the remaining months of the contract ... less our cost of doing business of 20%.... [14] Along with the motion, AET submitted an affidavit of Mr. Mascoll stating that he, identifying himself as "Ed Jones," had called Worldspan and inquired whether it would lease equipment to an unaccredited travel agency, and was informed that Worldspan "would give the agency a ninety-day grace period to receive ARC accreditation; however, if the new agency was not accredited within that time, then its failure to be accredited would be considered a breach of the contract...." [15] The trial court was apparently led into error by Worldspan, which stated in its opposition to AET's motion that the judgment had been entered on October 18 (when it had actually been entered — i.e., docketed — on October 23), and also failed to recognize that intervening Saturdays and Sundays should not be included in the ten-day calculation. [16] Rule 60(b) has six subdivisions. A motion for relief from judgment under subdivisions (1), (2), or (3) must be filed within a year from the date of entry of the judgment; in other cases the motion need only be filed "within a reasonable time."

2023-08-22 21:22:58.524688+00

Reavley

REAVLEY, Justice. In April of 1974 an unwed mother gave birth to a baby girl, whom we shall call K. The young mother was unable to care for the child, and she relinquished her parental rights to the Nueces County Child Welfare Unit of the Department of Public Welfare. The Child Welfare Unit took responsibility as soon as the baby was released from the hospital, providing her with foster care and locating suitable adoptive parents. The instant legal proceeding was initiated to terminate the parent-child relationship, to afford the father of the child an opportunity to be heard if he wished, and for the designation of the Child Welfare Unit as managing conservator of the child as a predicate for ultimate adoption. S.D.A. is the child’s father — only in the sense of that relationship which is the biological consequence of erotic ecstasy on a summer night. After learning of the moth*169er’s pregnancy, he showed no disposition to assist with her problem or expense, and within a month he was arrested for interstate transportation of a stolen vehicle and of a 14 year old girl. He has been confined in jail or penitentiary since October of 1973. After he was served with citation and the petition of the Child Welfare Unit, he filed his own petition for the voluntary legitimation of the baby girl and for the appointment of himself as her managing conservator. The trial court held a hearing on these two petitions. S.D.A. was present and testified. The State provided him with diligent counsel. Baby girl K was represented by her duly appointed guardian ad litem. The trial court found the father not to be a fit person to act as parent of the child and that the best interests of the child required the denial of his petition. Accordingly, the court granted the petition of the Child Welfare Unit and denied the petition of S.D.A. The Court of Civil Appeals affirmed. 520 S.W.2d 424. S.D.A. persists. Our question is whether the rights of this biological father have been abused. He contends that he is entitled to the legitimation of the child and to full parental rights by virtue of the fact that he is the biological father. He further contends that those parental rights cannot be terminated except by proceeding under Sec. 15.02 of the Family Code and by proof that he has been guilty of some specific act or omission enumerated in Sec. 15.02(1). He finally argues that his contentions must be upheld by the Texas law if that law is to pass minimum requirements of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, which he says entitles him to be treated in precisely the same manner as if he had been married to the mother of K at the time of the child’s birth. We first look to the statute in effect at the time of the hearing in 1974 to see if the trial court complied with the enactment of the Legislature. Title 2 of the Family Code at that time was in the form enacted in 1973 and effective on January 1, 1974. Acts of the 63rd Legislature, Regular Session, 1973, Ch. 543. Reference will be made below to the change in Title 2 which was made in 1975 after the hearing in this case. Under the Family Code a “parent” is not necessarily an immediate progenitor of the child; the term applies only to those named in Sec. 11.01 of the Code who are entitled to a legal relationship with all of the rights, privileges, duties and powers over the child enumerated in Sec. 12.04. Absent a married relationship between the father and mother of the child, the father is not a “parent” unless by force of Secs. 12.02 and 13.01. A person may have formerly been a legal “parent,” but if that relationship with the child is terminated under Chapter 15 of Title 2, the person is no longer a “parent” under the Code. The alleged father of an illegitimate child is entitled by Sec. 11.09 to service of citation upon the commencement of any suit affecting the parent-child relationship between the child and the mother or any other person. The father then may seek voluntary legitimation under See. 13.01. S.D.A. has done so under 13.01(b) which provides as follows: If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity. Neither the mother of the baby girl K, nor the Child Welfare Unit as managing conservator, nor the trial court has consented that S.D.A. may obtain a decree establishing this child as the legitimate child of S.D.A. Such a decree would entitle S.D.A. to the legal relationship as a parent under the Code. S.D.A. argues that the only matter to be considered in the legitimation proceeding is the paternity of the child and that, since it is conceded that S.D.A. is in fact the father *170of this baby girl, the court has no discretion to deny him the decree of legitimation. We disagree. We fail to see why the Legislature would require the “consent” of the court if the biological fact is the only predicate for legitimation and, hence, entitlement to full parental rights. If the court must consent to the matter, discretion is thereby conferred upon the judge to see that the one who would assume parental rights and responsibilities is fit to do so and that a decree declaring this relationship is made only if it is in the best interest of the child.1 S.D.A. then points to Sec. 15.02 of the Code which provides that the court may terminate the parent-child relationship if a parent has consented or has been guilty of any of the grounds of abandonment, neglect or abuse there specified and if, in addition, the termination is in the best interest of the child. S.D.A. says that the United States Constitution assures that he must be treated in precisely the same manner. Thus, once he is shown to be the biological father of the child, his rights with respect to the child may not be terminated absent a showing of the same grounds required to terminate the rights of a father to whom a child is legitimately born. It is clear that the law as S.D.A. says it ought to be is not the law of the Texas Family Code. Sec. 15.02 expressly applies to parents and not to all fathers. Sec. 15.02(1) was drafted in 1973 without thought of a biological father who terminated his relationship with the mother and the expected offspring nine months prior to the birth of the child. It may be questioned whether the trial court was restricted to these specific grounds of 15.02(1) if the father (even if a “parent”) were totally unfit to hold any responsibility or control of the child — even though it might not be said that he has yet engaged in conduct which has endangered the child. In any event, under the circumstances of this case the Legislature provided for the exercise of discretion by the trial court prior to the legitimation of the child as to the biological father, which discretion was to be exercised according to the best interests of the child. Since S.D.A. was not entitled to the decree of legitimation, the court was not required to look to the specific grounds of Sec. 15.02 which are relevant only for termination of the relationship between the child and one who has been given the legal status of a parent. We come now to the constitutional question. S.D.A. contends that the United States Supreme Court has in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) equated fathers of illegitimate children with fathers of legitimate children and has required the states to do likewise. In that case the State of Illinois had removed three children from the father’s custody following the death of the children’s mother. The father had over pri- or years taken part in the care and custody of his children and was then living together with them as a family unit. Illinois denied the father an opportunity to appear in court to show why his family should not be dismembered, and he was denied a hearing on his fitness to keep his children. Despite the existing family relationship, because of the lack of a legal marriage to the deceased mother of the children, the State presumed the father to be unfit as a parent. The Supreme Court held: We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment. 405 U.S. 649, 92 S.Ct. 1211. Counsel for S.D.A. reads Stanley to preclude any and all distinctions between fa*171thers of illegitimate children and other parents. We do not read the Supreme Court to have made such a holding, nor do we think that the Supreme Court has lost sight of the paramount rights of the child. The Stanley opinion emphasizes the importance of the family and the integrity of the family unit. The Court objects to the separation of children from a father who has sired and raised them until the father has been given an opportunity to show his fitness to keep that family with him. Stanley does not decree that all unwed fathers have fundamental rights to full parental status or that every statutory discrimination against the unwed father is suspect. The overriding interest of state and courts is the welfare of the affected children. We are not nearly so far down the road to unrestrained egalitarianism as to hold that the Constitution guarantees an unwed father parental rights in violation of the best interests of the child. The Court of Appeals of New York has upheld a New York statute which requires consent of the natural mother, without requiring consent of the natural father, for adoption of an illegitimate child. In re Adoption of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975). That court wrote: Of course, the primary concern of the Legislature and the courts is with the welfare of the children involved rather than with the allocation of rights between the mother and the usually uncertain and reluctant father of the children born out of wedlock. In this context, legislation and policy are governed by general conditions rather than the special circumstances of a sympathetic and idiosyncratic situation. Moreover, as noted earlier, the father in this case was given notice and an opportunity to be heard on the issue of what was in the best interest of the child. 36 N.Y.2d 579, 370 N.Y.S.2d 521, 331 N.E.2d 493. There is a rational basis for the state, which has an interest in securing stable homes and supportive families for children, to distinguish between the father who has accepted the legal and moral commitment to the family and the father who has not done so. The biological father may be a sperm donor or a rapist or someone as S.D.A. who has simply engaged in a single hit and run sexual adventure. He may, on the other hand,, be devoted to child and family even though the legal contract has not been sealed. Texas law offers the biological father of an illegitimate child the opportunity to prove which category in which he falls and to show that he should not be treated differently from fathers legally committed to the mothers of their children. Thus S.D.A. sought and received a fair hearing. The evidence proved him to be an unfit person to act as parent of this child, and the denial of his petition for parental status was shown to be in the best interest of the child. His rights have been respected. The rights of society and baby girl K permit him nothing more. The judgments below are affirmed. . When Chapter 13 was amended by the Legislature in 1975 the Legislature specifically provided that the court may consent to a legitimation “[I]f the entry of the decree is in the best interest of the child . . Sec. 13.21(c). Acts of the 64th Legislature, Regular Session, 1975, Ch. 476.

2023-08-22 21:22:58.529445+00

Pope

POPE, Justice (dissenting). I respectfully dissent. The majority opinion unnecessarily construes the Family Code in such a way as to deal unequally between men and women and between an unwed mother and an unwed father. Among those differences are: (1) An unwed woman is treated in law as a parent by force of her biological motherhood, whereas the undisputed fact of fatherhood does not constitute the unwed man a parent. (2) The unwed father bears the burden of the duties which flow from parenthood upon proof of his biological fatherhood, Gomez v. Perez, 466 S.W.2d 41 (Tex.Civ.App. 1971, writ ref’d n. r. e.), rev’d, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), but the same unwed father has no parental rights by force of his fatherhood. (3) An unwed man’s parental rights may be permanently terminated without compliance with article 15.02, Family Code, whereas an unwed woman’s parental rights are terminable only upon proof which meets those statutory requirements. *172Chapter 13 of the Texas Family Code makes provision for legitimation procedures; chapter 14 provides for conservator-ship, possession and support of children; and chapter 15 provides for the permanent termination of the parent-child relationship. Each chapter imposes different tests and rules for each of those three kinds of proceedings. The majority rule, today announced, is that those statutory rules only protect the rights of women, not men. I rather suppose that S.D.A., the father, would have had problems preserving his parental rights if he had been tried under the correct test; but we pursue a dangerous technique when this court suggests that we might be excused from following the law because, after all, one of the parties is undeserving of an equal rule. Legitimation Proceedings According to article 11.01(3), the word “parent” is defined: “Parent” means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated. It is at once apparent that the word means one thing as to the mother and an entirely different thing as to the father. Biological motherhood means parenthood in the case of the woman. The majority holds that admitted biological fatherhood does not mean parenthood in the case of the man. The evidence without dispute conclusively established the biological fatherhood of S.D.A. S.D.A. pleaded the fact, and he filed his statement of paternity which was sufficient under section 13.02.1 That was prima facie proof of paternity under section 13.03.2 The Welfare Unit judicially admitted the fact of paternity by its allegation that “[t]he father of the child is S.D.A.” In the course of the evidentiary hearing the Welfare Unit stipulated that “S.D.A. is the father of Baby Girl K” and the trial court found as a fact that he is the father of the child. S.D.A. conclusively established the fact of his fatherhood as a matter of law at the constitutionally mandated hearing. I would hold, therefore, that biological paternity would constitute a father a parent just as biological maternity constitutes a mother a parent. Article 11.01(3) is void in unequally defining a “parent.” S.D.A. also contended that he is a parent within a reasonable construction of section 11.01(3) of the Family Code, which in the case of a man, is one as to whom the child is legitimate or has been adopted. He reasons that he established the child’s legitimacy by his compliance with section 13.01 of the Family Code. It provides: Voluntary Legitimation (a) The father of a child not the legitimate child of another man may institute a suit for a decree designating him as the father of the child unless, the parent-child relationship has been terminated under Chapter 15 of this code. With the consent of the mother or the managing conservator, if one has been appointed, and *173the court, and on the filing of a statement of paternity executed by the father and submitted with the petition, and after notice to the wife, if any, of the father of the child, the court shall enter a decree declaring the child to be the child of the father. (b) If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity. (c) A suit for voluntary legitimation may be joined with a suit for termination under Chapter 15 of this code. [Emphasis added.] Section 13.01(a), quoted above, authorizes the court to “enter a decree declaring the child to be the child of the father.” Section 13.01(b) authorizes the court to “enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.” In my opinion the Legislature intended in a legitimation proceeding to require proof of the biological fact of paternity and, just as it is the fact of motherhood, it should be the fact of fatherhood which results in a decree of legitimation. Section 13.01(b) requires the “consent” of the court. That consent should be given and should not be arbitrarily withheld, when all of the facts establish the fact of paternity. When the fact is disputed or ambiguous, the court should withhold its consent until the fact is settled at a trial. The withholding of consent, however, should be for the purpose of requiring proof of the fact of paternity, and not to short-circuit all of the other procedures which the Family Code authorizes. The correct test in a legitimation proceeding is the fact, vel non, of fatherhood, and not as the majority has held, what is the best interest of the child. Chapter 14 says that the best interest of the child is the correct test for conservatorship, possession and custody and support matters. Those matters are not issues in these proceedings, but the majority has transplanted that test from chapter 14 into legitimation proceedings which involve paternity under chapter 13. Chapter 13 does not mention that test as an appropriate one. When the 63rd Legislature first enacted chapter 13 of the Family Code, it made no provision for involuntary legitimation, that is, paternity suits. It only authorized a father’s voluntary suit for legitimation. The 64th Legislature amended all of chapter 13 and for the first time in Texas authorized an involuntary paternity suit so that either the mother or father could prove paternity. Sections 13.-01-13.09. Under the paternity statutes as enacted in 1975, the issue is clearly that of one’s biological fatherhood. The effect of a decree that he is the father of the child “createfs] the parent-child relationship between the father and the child as if the child were born to the father and mother during marriage.” Section 13.09. The construction which I would give to the earlier voluntary legitimation statute is consistent with what the Texas Legislature has now actually declared to be the correct test in the case of involuntary legitimation. Legitimation proceedings should logically concern the fact of fatherhood, whether it is a voluntary or involuntary proceeding. Until the fact of fatherhood is determined, the issues about conservatorship or permanent termination of parental rights do not arise. By way of analogy, once the fact of fatherhood is established, an unwed father has certain parental duties fixed upon him. When Gomez v. Perez, 466 S.W.2d 41 (Tex. Civ.App.1971, writ ref’d n. r. e.), came to this court in 1971, we refused the writ by reason of a long line of Texas precedents which held that a father of a child born out of wedlock was under no duty to support the child. As is true in our present case, the proof established the fact of biological fatherhood. The United States Supreme *174Court, even without the aid of a Texas statute, rejected our Texas rule and held that the obligation of the biological father to perforin his parental duty of support applied equally to children born in and out of wedlock. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Said the court, “We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right- to a child simply because its natural father has not married its mother.” On constitutional equal protection principles the child of an unwed father was treated like a legitimate child, and that was so without the aid of any statute. In Gomez the biological fact of fatherhood imposed the duty of support. If the rule is equally applied, we should also recognize the father’s correlative rights of parenthood which flow from the same fact. Termination of the Parent-Child Relationship Even more surprising, however, is the way the courts below and the majority of this court have arrived at a judgment which permanently terminates S.D.A.’s parental rights. Section 15.023 is the statute which spells out the grounds for an order permanently ending the parent-child relationship. It is in two parts. Subsection (1) requires proof of one of the specified acts numbered from (A) to (I). In addition to that required proof, subsection (2) requires proof that the termination is in the best interest of the child. The majority now holds that the statute applies to a mother but not to S.D.A., a father. The trial court’s judgment orders the permanent termination of the father’s parental rights in these words: “It is therefore ordered, adjudged and decreed by the Court that all parental rights of G.K. and all rights which S.D.A. may have the right to assert in regards to said Baby Girl K, born April 6, 1974, be and are hereby terminated.” The court of civil appeals and this court have affirmed the judgment of termination and have done so in spite of the Welfare Department’s admission that it neither pleaded nor proved any of the facts required by article 15.02(1). The Welfare Department’s brief says, “[I]t is true that none of the grounds for termination itemized in Sec. 15.02, Texas Family Code were alleged in the petition for termination and none were proved at the hearing, however, the court found from the proof adduced that Petitioner is not a fit and proper per*175son to be entrusted with the care of the child and the best interest of the child requires that the court withhold its consent to legitimation . . . The majority announces the rule that the Family Code is for the protection of mothers and women, but in the case of fathers and men, it is all right if the court invents a different and special rule. The reason this lack of equality is all right, says the court, is that the father in this case was given notice of the hearing, citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley has now been construed to hold that a man is equally treated if he has notice of the hearing in which the court ignores the Family Code. The rule violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Rothstein v. Lutheran Social Services of Wisconsin & Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786, rev’g mem. 47 Wis.2d 420, 178 N.W.2d 56 (1970); Vander-laan v. Vanderlaan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 787, rev’g mem. 126 Ill. App.2d 410, 262 N.E.2d 717 (1970). I would reverse the judgments of the courts below and remand the cause (1) for the determination of the fact of S.D.A.’s paternity; (2) for the determination of the termination issue under article 15.02; (3) and if termination should fail, then for a determination of managing conservator-ship, possession, and support of the child. STEAKLEY and DENTON, JJ., join in this dissent. . § 13.02. Statement of Paternity The statement of paternity authorized to be used in Section 13.01 of this code must be executed by the father of the child as an affidavit and witnessed by two credible adults. The affidavit must clearly state that the father acknowledges the child as his child, that he and the mother, who is named in the affidavit, were not married to each other at the time of conception of the child or at any subsequent time, that the child is not the legitimate child of another man, and that the child is entitled to support from the father. The statement must be executed before a person authorized to administer oaths under the laws of this state. . § 13.03. Effect of Statement of Paternity (a) A statement of paternity executed as provided in Section 13.02 of this code is pri-ma facie evidence that the child is the child of the person executing the statement and that the person has an obligation to support the child. (b) If the father’s address is unknown or he is outside the jurisdiction of the court at the time a suit is instituted under Section 13.01 of this code, his statement of paternity, in the absence of controverting evidence, is sufficient for the court to enter a decree establishing his paternity of the child. . § 15.02. Termination When Parent is not Petitioner A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: (1) the parent has: (A) voluntarily left the child alone or in the possession of another not the parent and -expressed an intent not to return; or (B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of thé child, and remained away for a period of at least three months; or (C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or (D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or (E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or (F) abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence; or (G) contumaciously refused to submit to a reasonable and lawful order of a court under Section 34.05 of this code; or (H) been the major cause of: (i) the child’s repeated violations of the compulsory school attendance laws; or (ii) the child’s absence from his home without the consent of his parents or guardian for a substantial length of time or without the intent to return; or (I) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of this code; and (2) termination is in the best interest of the child.

2013-10-30 06:32:45.303427+00

Woodley

335 S.W.2d 613 (1960) Douglas Ray FLETCHER, Appellant, v. STATE of Texas, Appellee. No. 31563. Court of Criminal Appeals of Texas. April 13, 1960. James H. Martin, Dallas, Robert C. Benavides (on appeal only) Dallas, for appellant. Henry Wade, Criminal Dist. Atty., William F. Alexander, Jerome V. Chamberlain, Jr., Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State. *614 WOODLEY, Judge. The indictment herein alleged that appellant (1) unlawfully possessed amidone, a narcotic drug; (2) that prior to the commission of said offense he had been finally convicted for the unlawful possession of marihuana, a narcotic drug; and (3) that prior to the commission of both of these offenses he had been finally convicted of burglary. Trial was before a jury on appellant's plea of not guilty and the jury, as they were authorized to do under the court's charge, found appellant guilty of the unlawful possession of a narcotic drug as charged in the indictment and further found that each and all of the allegations of the indictment charging a final conviction for possessing a narcotic drug and for burglary were true. No punishment was assessed by the jury. Judgment was rendered on the jury's verdict upon the theory that the punishment was definitely fixed by Art. 63, Vernon's Ann.P.C., and appellant was sentenced to a life term in the penitentiary. Properly analyzed, the indictment alleges a subsequent violation of the Uniform Narcotic Drug Act, Art. 725b V.A. P.C., and a prior conviction for burglary. The prior conviction for the unlawful possession of marihuana made applicable the punishment provided in Section 23(1) of said Article for "the second or any subsequent conviction" for violating the provisions of Art. 725b, V.A.P.C. Such prior conviction being for a violation of Art. 725b, V.A.P.C., it was not available and could not be used to enhance the punishment under Art. 63, P.C. Granado v. State, Tex.Cr.App., 329 S.W.2d 864; Parasco v. State, 165 Tex. Crim. 547, 309 S.W.2d 465; Edwards v. State, Tex.Cr. App., 313 S.W.2d 618. Burglary not being an offense of the same nature as the unlawful possession of a narcotic drug, the prior conviction for that offense was not available to enhance the punishment under Art. 62, P.C. The indictment is insufficient to sustain a life sentence as an habitual criminal under Art. 63, P.C. without a verdict of the jury assessing such punishment. Appellant's motion for rehearing is granted, the prior opinion affirming the conviction is withdrawn, and the judgment is now reversed and the cause remanded.

2023-08-22 21:23:01.525285+00

Newman

OPINION NEWMAN, Justice. Appellant Cynthia Efaw (Appellant) appeals from the Superior Court’s Order, which reversed the denial by the Court of Common Pleas of Bucks County (trial court) of the Motion in Limine, filed by the Commonwealth, to admit certain evidence compiled by the State Farm Insurance Company (State Farm) pursuant to an arson investigation. Appellant asks this Court to determine whether the Arson Reporting Immunity Act *447(ARIA)1 permits the Commonwealth to compel an insurance company to disclose information it received or developed pursuant to its private investigation absent disclosure to the insured, and without the insured’s specific waiver of her reasonable expectation of privacy or confidentiality. We affirm the decision of the Superior Court for the following reasons. FACTUAL AND PROCEDURAL HISTORY A fire occurred on December 23, 1995 at a home owned by Appellant and her husband. At the time of the fire, the daughter of Appellant was renting the home. State Farm carried the homeowner insurance policy of Appellant and her daughter’s renter’s insurance policy. State Farm investigator John Christmas (Christmas) and others examined the property, took photographs, and interviewed Appellant. Fire Marshall Edward Copper (Fire Marshall Copper) of Bristol Township also investigated the fire. Christmas’ report, and a subsequent report by Fire Marshall Copper, concluded that the ignition of combustible materials placed on the electric burner of the kitchen stove caused the fire. State Farm denied claims by Appellant and her daughter for payment under their respective insurance policies. On January 2, 1998, Fire Marshall Copper requested the information gathered by State Farm during its arson investigation. He made the request, authorized by the ARIA, which provides in relevant part: (a) Fire loss information.' — Any authorized agency may, in writing, require an insurance company at interest to release to the requesting authorized agency any or all relevant information or evidence deemed important to the authorized agency which the insurance company may have in its possession relating to a fire loss under investigation by the authorized agency. Relevant information may include, without limitation herein: (5) material relating to the investigation of the loss, including statements of any person, proof of loss, and any other *448information relevant to the investigation by the authorized agency. 40 P.S. § 1610.3(a). In response, State Farm supplied the Commonwealth with photographs, statements and other information it compiled during the arson investigation. On August 14, 1996, a Bucks County Investigating Grand Jury issued a subpoena to State Farm requiring the production of all documents relating to the arson investigation. State Farm complied with the subpoena. The Grand Jury charged Appellant with arson,2 recklessly endangering another person,3 and insurance fraud.4 Appellant filed a motion to suppress the documents submitted by State Farm on the grounds that State Farm obtained the information while it was acting as an agent of the Commonwealth or was engaged in a relationship with Commonwealth investigators that was so close that it effectively served as a Commonwealth agent. The trial court found that no such relationship existed and denied Appellant’s motion to suppress. While denying Appellant’s motion, the trial court indicated that portions of the information State Farm provided to the Commonwealth might be excluded on evidentiary grounds at trial. The Commonwealth responded by making an oral motion in limine for the admission of all evidence gathered by State Farm during its arson investigation. The trial court denied this motion, indicating that Appellant possessed a reasonable expectation of privacy in the information conveyed to her insurance company and that the Commonwealth “cannot now use [State Farm] as a vehicle to obtain evidence in the absence of an effective waiver” pursuant to Commonwealth v. Ball, 523 Pa. 216, 565 A.2d 1143 (1990). Trial Ct. Op., 10/13/98, at 9 (R.R. 20a). The Commonwealth appealed to the Superior Court. In a published Opinion, the Superior Court reversed the order of the trial court. It refused to require an insurance *449company to notify its insured prior to releasing information relating to an arson investigation or to require a waiver of confidentiality when neither of these requirements appears within the express terms of the ARIA. We agree. The ARIA does not require notification to Appellant prior to furnishing information to the Commonwealth pursuant to an ARIA request. Appellant and the trial court improperly rely on Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), and Commonwealth v. Ball, 523 Pa. 216, 565 A.2d 1143 (1990), in support of their arguments. It is not reasonable for an insured to have any expectation of privacy in the information obtained pursuant to an arson investigation. DISCUSSION Appellant and the trial court seek to include a requirement within the ARIA that is noticeably absent from the text of the statute. The trial court denied the Commonwealth’s oral motion in limine for the admission of all evidence gathered by State Farm during its arson investigation because State Farm never informed Appellant that the Commonwealth was invoking the ARIA. “Without such disclosure to [Appellant], and without her specific waiver of any rights to confidentiality she may have pursuant to her contractual relationship with State Farm, we could not permit the Commonwealth to circumvent” Appellant’s constitutional protections. Trial Ct. Op., 10/13/98, at 11 (R.R. 22a). The ARIA does not contain a notice provision that places such a burden upon the Commonwealth. Section 1610.3(c) of the ARIA, “Notification to policyholder”, requires an insurance company to “send written notice not sooner than 45 nor more than 60 days from the time the information is furnished to an authorized agency.” Thus, notification is only required after the requested information has been released. Contrary to Appellant’s contention, the ARIA does not contain language that requires State Farm to notify its insured before it submits information to an authorized agency. In the instant case, the Commonwealth submitted its request to State Farm pursuant to the ARIA on *450January 2, 1998. According to the statute, Appellant had no right to be notified prior to February 16,1998. Appellant asserts that the Commonwealth and State Farm violated the ARIA by failing to provide written notice that the Commonwealth obtained information from State Farm within forty-five (45) to sixty (60) days after it exchanged information. As a result, Appellant contends that all evidence submitted by State Farm must be excluded. The record supports Appellant’s assertion that she did not receive notice within the forty-five (45) to sixty (60) day window provided by statute. However, under the ARIA, an insurance company’s failure to notify its insured that it has submitted materials to the Commonwealth does not grant Appellant the remedy she seeks. The language of the statute does not expressly provide any remedy to Appellant for failure to receive notice. Section 1610.6 imposes criminal liability upon any person who violates provisions of the ARIA.5 Specifically exempted from liability are those individuals who violate sections 3(c)(1) and (2), the sections addressing notification to the insured. Further, Appellant does not offer any legislative history to outline the General Assembly’s intent. Upon review, we find that the legislative history provides no direction as to this issue. This Court declines to impose a remedy that is neither expressly nor impliedly contained within the ARIA. Appellant contends, and the trial court agreed, that the Commonwealth circumvented her reasonable expectation of privacy or confidentiality in statements made and materials submitted to State Farm, due to her lack of waiver of such rights. Appellant bases her claim on Article One, Section Eight of the Pennsylvania Constitution, which states, “[t]he people shall be secure in their persons, houses, papers and *451possessions from unreasonable searches and seizures.” Such protection extends to those zones where one has a reasonable expectation of privacy. In support, Appellant and the trial court rely on Commonwealth v. DeJohn, supra, for the proposition that the Pennsylvania Constitution, Article One, Section Eight, affords citizens greater protection than the federal Constitution where one has a reasonable expectation of privacy,6 and “so long as a person seeks to preserve his effects as private, even if they are accessible to ... others, they are constitutionally protected.” 403 A.2d at 1289 (citing Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29, 34 (1973)). According to the trial court’s fallacious interpretation, our holding in DeJohn can be extended to the instant case, and Appellant has a reasonable expectation of privacy in the information she conveyed to State Farm in pursuit of her settlement claim for damages resulting from the fire. In DeJohn, we determined that a bank customer has a reasonable expectation of privacy in financial records maintained by the bank. One of our concerns in DeJohn was that bank customers supply personal information to a bank under a reasonable assumption that the information will remain confidential. Id. at 1290. In the instant case, Appellant was aware that the information sought was compiled as part of an ongoing investigation to determine the cause and origin of the fire. If the information compiled by investigators leads to the conclusion that a fire was sparked by an insured’s criminal act, we cannot say that it is proper for the insured to adopt a *452reasonable assumption that such information will not be submitted to and used by law enforcement officials. In addition, the nature of the relationship between a bank and its customer can be far different than the relationship between an insurance company and its insured. When an insured files a claim for a loss, the insured seeks compensation for that loss, and the insurance company investigates the incident that caused the loss. That investigation may reveal information that allows the insurance company to deny the insured’s claim. This adversarial relationship is exceedingly antagonistic in a case such as this one where the incident that caused the loss was a fire, and the suspected cause is arson. As part of such an adversarial relationship, the insured cannot reasonably believe that the information compiled by investigators would remain confidential. This relationship is appreciably different from that of a bank and its customer where the records obtained were compiled and maintained in the ordinary course of business. As a result, we are not prepared to extend DeJohn to the present case. Appellant’s belief that evidence of arson would not be submitted to, and used by law enforcement officials, was not a reasonable one. Further, the ARIA clearly provides for the release of such information to law enforcement agencies. Appellant argues that this Court has previously concluded that an insured has a reasonable expectation of privacy or confidentiality in any statements or records that she submits in pursuit of a claim, and that an insured must waive such rights before her statements may be divulged to an authorized agency. Appellant contends, and the trial court affirmed, that we reached such a, conclusion in Commonwealth v. Ball, supra. In Ball, an attorney for the defendant’s insurance company affirmatively warned the defendants that any disclosures made to their insurance company while conducting its arson investigation could be divulged to government investigators. In the case before us, the trial court cited Ball and stated that the record is void of any indication that Appellant waived her reasonable expectation of privacy or confidentiality in making statements to State Farm. *453We did not hold in Ball that an insured has a reasonable expectation of privacy or confidentiality in statements made to an insurance company during its investigation of a fire. Rather, this Court determined that the defendants “waived whatever confidentiality they possessed” in their statements to their insurance company. Ball, 565 A.2d at 1146. We decline this opportunity to recognize a reasonable expectation of privacy in such statements. CONCLUSION We affirm the Order of the Superior Court reversing the trial court’s denial of the Commonwealth’s motion in limine for the admission of statements made by an insured to her insurance company pursuant to an arson investigation and given to the Commonwealth pursuant to the ARIA. We find the ARIA void of language that would require State Farm to notify Appellant before submitting any requested materials to the Commonwealth. We further find that Appellant did not have any expectation of privacy or confidentiality in her statements to State Farm. Justice ZAPPALA concurs in the result. Justice NIGRO files a dissenting opinion. . Act of July 2, 1980, P.L. 340, as amended, 40 P.S. §§ 1610.1-1610.8. . 18Pa.C.S.A. § 3301. . 18 Pa.C.S.A. § 2705. . 18Pa.C.S.A.§ 4117. . 40P.S. § 1610.6 states: (a) Disclosure of Information. — Any person who shall fail or refuse to release any information required to be released under this act or who discloses information required to be held in confidence, or who otherwise violates any provision of this act (except section 3(c)(1) and (2)) shall, upon conviction thereof, be guilty of a misdemeanor of the third degree. . Generally, this proposition as stated by the trial court and Appellant, is incorrect. Article One, Section Eight and the Fourth Amendment share similar language and contain the same basic lenets of probable cause and reasonable expectations of privacy. Article One, Section Eighl differs from its federal counterpart in that the former "is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.” Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 897 (1991). Thus, pursuant to Article One, Section Eight, this Court has recognized a reasonable expectation of privacy in certain conduct or activities where our federal brethren have declined to do so. See Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987) (rejecting federal determination tha1 a drug sniff was not a “search” and requiring articulable reasonable suspicion before a drug sniff of property).

2023-08-22 21:23:01.529521+00

Nigro

NIGRO, Justice, dissenting. I respectfully dissent. Unlike the majority, I would reverse the Superior Court’s decision and reinstate the trial court’s order denying the Commonwealth’s motion to admit the information Appellant provided to State Farm once the Commonwealth invoked its right to receive that information under ARIA. In my view, an insured clearly has a reasonable expectation of privacy in information provided to an insurance company. See, e.g., Commonwealth v. DeJohn, 486 Pa. 32, 45-49, 403 A.2d 1283, 1289-92 (1979) (depositor has reasonable expectation that the information in his bank records will remain *454confidential).1 I also believe that under ARIA an insurance company acts as an agent of the Commonwealth because ARIA specifically requires insurance companies to notify the Commonwealth of suspected arson and disclose to the Commonwealth, at the Commonwealth’s request, any information that an insured has provided to the company. See 40 P.S. § 1610.3. Given these obligations under ARIA, I would find that in order to adequately protect an insured’s Fifth Amendment privilege against self-incrimination, once an insurance company suspects that an insured has committed arson, the insurance company must notify the insured that any information he or she provides to the company may be turned over to the Commonwealth. This notification should be required regardless of whether or not the Commonwealth has requested the insured’s information pursuant to ARIA.2 In the instant case, the trial court found that on December 29, 1995, Fire Marshal Copper contacted State Farm regarding the disclosure of Appellant’s insurance information pursuant to ARIA and subsequently made arrangements with State Farm to investigate Appellant’s home. At this time, State Farm was aware that the fire may have been the result of arson and was also aware of its responsibilities to provide Appellant’s information to the Commonwealth. I believe that *455on January 3, 1996, before asking Appellant for her consent to take evidence from her home and to investigate her credit history, State F;, " u should have notified Appellant that any information derived from those actions would be disclosed to the Commonwealth. In light of the fact that Appellant was not warned that the information she provided to State Farm would be turned over to the Commonwealth, I agree with the trial court that Appellant did not knowingly waive her Fifth Amendment rights and therefore, the Commonwealth should be precluded from using this information or anything derived from the information. Given that the majority finds otherwise, I must respectfully dissent. . I disagree with the majority (hat the relationship between an insurance company and an insured is clearly distinct from that between a bank and a depositor. Indeed, the view of the majority endorses the idea that the relationship between the insurance company and an insured must always be adversarial. Although the relationship between the insurance company and an insured may often become adversarial, the relationship between a bank and a depositor likewise may turn adversarial. . I do not believe, however, that an insurance company has to provide notice to the insured before giving the Commonwealth information that the insured has already voluntarily provided to the insurance company. I would find that notification is needed once the insurance company suspects arson because at that point, ARIA mandates that the company notify tire Commonwealth of its suspicion and disclose information given by the insured upon the Commonwealth’s request. See 40 P.S. § 1610.3(b). Thus, in order to assure that the insured thereafter knowingly and voluntarily waives her Fifth Amendment rights, the insurance company should be required to notify the insured of its duties to tire Commonwealth under ARIA.

2023-08-22 21:23:02.001175+00

Archer

ARCHER, Chief Justice. This is an appeal from an order of the District Court granting motions for summary judgments to the defendants, The Railroad Commission and its members; and to W. A. Moncrief, Jr., as an intervenor; and denying the plaintiffs, Pan American Petroleum Corporation and the intervenor, Humble Oil & Refining Company, any relief. On March 25, 1959 Pan American Petroleum Corporation filed suit under Section 8 of Art. 6049c, Vernon’s Ann.Civ.St., against the Railroad Commission alleging that, in effect, the suit was an appeal from a decision of the Commission dated January 12, 1959, refusing a hearing and an application relative to revising the allocation formula, or for an adjustment of the allowables for the Emperor gas fields. Humble Oil & Refining Company intervened and aligned itself with Pan American; W. A. Moncrief, Jr. intervened and aligned himself with the Commission. The Emperor Field consists of two separate gas reservoirs — the Devonian and the Elleriburger. The Commission promulgated rules for the Field in October and November, 1956, at which times there were five wells. In the interim of 1956 to 1959, 28 additional wells were drilled in the Devonian and 18 in the Ellenburger, the producing area was enlarged and pipelines built into the area. Rule 3, of primary concern in this case, reads: “Rule 3. The daily allowable production of gas from individual wells completed in a non-associated gas reservoir of the subject field shall be determined by allocating the allowable production, after deductions have been made for wells which are incapable of producing their gas allowables, among the individual wells in the following manner: “(a) Two-thirds (¾) of the allowed gas production from a non-associated gas reservoir shall be allocated to the individual wells completed therein in that proportion that the acreage assigned to each such well bears to’ the sum of the acreage in the reservoir. “(b) One-third (½) of the allowed gas production from a non-associated gas reservoir shall be allocated equally among the individual wells completed therein. “(c) The total daily non-associated gas allowable for each well shall be the sum of its acreage and per well allowable.” Rules 1, 2 and 3 for the Emperor (Devonian) Field were adopted for the Ellen-burger, effective October 22, 1956. Appellant, Pan American, protested the allocation of production on the basis of the 1/$ well and ⅜ acreage factors. The concluding sentence of the order reads: “It is further ordered that this cause be held open on the docket for such other and further orders as may be necessary.” On February 28, 1958, Moncrief filed an application for a permit to drill a well on a 5-acre tract as an “exception” to the spacing rule. After a hearing, at which appellant protested, a permit was granted on April 15, 1958. There is no question but that Moncrief’s 5-acre tract was entitled to a permit to drill a well as a matter of *427law under court decisions, and does not violate the subdivision rule. On March 27, 1958 appellant applied to the Commission for a hearing to consider the revision of the allocation formula as set forth in Rule 3. A hearing was had and evidence offered and the application was denied on June 9, 1958. On November 3, 1959 Moncrief filed an application to determine why only common purchasers of gas in the fields should not be required to take gas from his 5-acre tract in accordance with the formula. On January 2, 1959, a day set for a hearing on the application, appellant informed the Commission that it believed the notice was broad enough to permit introduction of evidence in regard to amending the allocation formula. This request was denied on January 5, 1959. Appellant on January 8, 1959 made a formal application for a hearing to consider the revision of the formula for the fields, setting out that such formula was unreasonable, and that conditions had changed. On January 12, 1959 the Commission denied the request. On February 24, 1959, the Commission entered its order to the common purchaser of gas in the fields requiring it to take all gas tendered for purchase in conformity with the allowable schedule. This suit was filed on March 25, 1959. The Commission filed its motion for summary judgment contending that the undisputed facts show that, as a matter of law, the plaintiff and Humble are estopped and barred by unreasonable delay and laches from obtaining the relief sought, and that there is no genuine issue, and set out the various actions of the Commission, which we have herein mentioned; and that no motion was filed for rehearing following the orders of the Commission issued in 1956, or the order granting Moncrief a permit in 1958, or to the denial by the Commission on June 9, 1958 of plaintiff’s application for a revision of the formula for the fields. Subsequent to the promulgation of the field rules, the fields were developed by the completion of many gas wells at great expense, and some on less than 320 acres. The motion for summary judgment further alleged that plaintiff and Humble waited more than two years after the allocation which was formulated was adopted by the Commission and nine months after the Commission had refused to revise the formula before filing suit attacking the orders; that it is important to the Railroad Commission, as a representative of the public generally, that proration or allocation formulas be as stable as reasonably possible and that the validity of such orders be determined with reasonable promptness; that the Commission acted within its lawful and reasonable discretion in refusing to grant to plaintiff a further hearing on the matter of the allocation formula, since three hearings had been held; and that, as a matter of law, the Commission properly provided in its ratable-take order that the common purchaser should take in accordance with the allocation formula. Moncrief filed a motion for summary judgment alleging that the plaintiff and Humble are barred, as a matter of law, by unreasonable delay, laches, and estoppel from obtaining the relief sought, and also contained other allegations as to the entry of the orders in 1956 making the allowable formula and as to the application for a permit to drill a well; order granting the permit, and that no motions for rehearing were-filed, and no notice was given Moncrief of an intention to attack the formula, and of drilling of the well at a cost of $468,259.28, and of reliance on the failure of plaintiff to file any motions for rehearing, or to file a suit for over two and a half years. The affidavit of W. A. Moncrief, Jr. was attached to the motion in which the history of the Emperor Field with a recitation in sequence of the orders and actions of the Commission in making the allowable formula; the granting of the permit and the drilling of the well; lack of notice of an *428intention by appellants to file a suit to attack the orders were set out. O. D. Hyndman, secretary of the Commission, in his affidavit attached to Mon-crief’s motion, identified the several orders of the Commission, the completion reports of wells in the Emperor Field and all of the other motions and orders of the Commission as to permits and the allowable formula in the field. The motions for summary judgment were granted by the court on July 23, 1959, and the plaintiff and Humble were denied any relief. It is from this judgment that the appeal is taken. The appeal is founded on 10 points assigned as error by the trial court, and are to the effect that the court erred in granting the judgment because it was not necessary as a prerequisite to a suit by appellant to file motions for rehearing; that the orders of the Commission are not final to the extent of depriving the Commission of jurisdiction to reconsider such orders; that tire Commission’s power is a continuing one and its orders are subject to change at any time; that no estoppel can exist in favor of either of appellees because there is no showing of inexcusable delay and injury; that a disputed fact issue was presented as to whether appellant was guilty of laches; that by a recital in the 1956 orders that causes were “held open on the docket for such other and further orders as may be necessary” was a recognition of its power to regulate production; protection of correlative rights is a continuing one; that no estoppel can exist in favor of Moncrief because he has no vested right in an order of the Commission, and drilled his well with full knowledge that the orders of the Commission are subject to change, and because he knew that appellant had protested the ½ and ⅜ allocation formula ; that the plea of laches presents a question of fact; that appellant’s application of January 8, 1956 contained a request that a hearing on the subject of adjustment of al-lowables be had, which was denied on January 12, 1959, and this suit is not subject to the plea of laches. We do not believe the court erred in granting the summary judgment. In plaintiff’s original petition filed on March 25, 1959, the prayer was (1) that the allocation formula in the orders of October and November, 1956, be cancelled; (2) that the ratable-take order of February 24, 1959 be cancelled; and (3) that, in the alternative, the court order the Commission by mandatory injunction to grant a hearing on its application dated January 8, 1959 for a revision of the proration orders. The Commission filed a motion for a severance claiming that the question of the validity of the proration orders of 1956 are distinct and separate questions from the validity of the ratable-take order of 1959, which motion was granted, and no error has been assigned to this action. Humble has assigned the action of the court as error, but we believe the order of severance was correct. Rules 41, 97 (h) and 174, Texas Rules of Civil Procedure. Pure Oil Co. v. Fowler, Tex.Civ.App., 302 S.W.2d 461, er. ref. n. r. e. The Commission takes the position that the failure of Pan American to take legal action to set aside the 1956 orders was an unreasonable delay as a matter of law to bar the plaintiff and in-tervenor from making attacks on the pro-ration orders, and that said orders are reasonable and valid. We believe that the plaintiff and intervenor — appellants here— were barred by unreasonable delay from attacking the proration orders, and that the Commission properly acted within its discretion in declining to call a fourth hearing on its allocation formula. There is no dispute as to the relevant facts in the time and sequence in which the events occurred. The question of long delay in attacking the orders of the Commission have been considered in Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W.2d 243, and Board of Water Engineers of Texas v. Colorado River Municipal Water Dist., 152 Tex. 77, 254 S.W.2d 369. *429In the Midas case the Supreme Court stated the law as follows [142 Tex. 417, 179 S.W.2d 245]: “While the Act in question does not fix any time limit for the filing of a suit to set aside such a permit, it does provide that ‘Such suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court.’ This very clearly evidences legislative recognition of the necessity of speedy action in such matters, and we are satisfied that it was the intention of the Legislature that such a suit should be filed within a reasonable time after the granting of the permit, and if an interested party fails to bring such suit within a reasonable time, and in the meantime the permittee begins the drilling of the well or otherwise incurs substantial obligations in the prosecution of his rights thereunder, the contestant should be held to have lost his right to prosecute such a suit.” In Dunbar v. Fuller, Tex.Civ.App., 253 S.W.2d 684, 686, er. ref., it was held that “the statute does not fix any time within which a rule, regulation or order of the Commission relating to conservation of oil or gas or drilling permits must be brought under review by the courts, but there should not be unusual delay, but should be done with reasonable diligence.” In the Board of Water Engineers case the court held: “ * * * In this case the implied finding of the trial court is that the delay was reasonable, but the facts of this case are very much stronger than those in the Midas case. Appellees not only stood by for seven months before filing suit, but during that period knew that Martin County took steps in May, 1951, to establish the District; that an election was ordered and conducted in July; that directors were named; and that rules and regulations were promulgated and published. Not only that, but they tacitly recognized the existence of the District by having their representatives meet with the directors. To hold that they could then be permitted to challenge the validity of the Board’s order would be to approve a practice which would, if generally followed, clearly violate the legislative intent that there be no unnecessary delay in reviewing the Board’s orders, and would disrupt the orderly steps of a state agency to cope with one of the most important and pressing problems confronting our State — the conservation of our limited supply of underground water. The purpose of our conservation statutes cannot be effectuated if litigants are permitted to delay attacks upon orders of the Board for seven months, during which time conservation districts have been organized agreeable with the order, confirmed by the voters, directors elected, and rules promulgated.” [152 Tex. 77, 254 S.W.2d 372.] As concerns the failure of the Commission to grant Pan American (a point not raised by Plumble) a fourth hearing on the subject of the allocation formula in the Emperor Field, we note that three full hearings had been held previously by the Commission — the first on August 29, 1956, the second on October 10, 1956 and a third on May 1, 1958, and on each occasion the original orders were reaffirmed. On November 3, 1958 notice was issued that a hearing would be held on January 15, 1959 on the application of Moncrief for a ratable-take order to require the common purchaser to take gas on the basis of the proration schedule. Subsequent to this notice, Pan American requested the Commission to call a hearing to “amend allocation formula” and that it be held concurrently with Moncrief’s application. This request was denied on January 5, 1959, and on January 8, 1959 Pan American made another *430application for “revision of the current.allocation formula” and in the application it was recited that conditions have materially changed since the May 1, 1958 order. This application was denied on January 12, 1959. In Railroad Commission of Texas v. Permian Basin Pipeline Co., Tex.Civ.App., 302 S.W.2d 238, er. ref., n. r. e., appeal dismissed 358 U.S. 37, 79 S.Ct. 21, 3 L.Ed.2d 43, there was before the court the question of, and the authority for the Commission, to enter a ratable-take order requiring a common purchaser to take gas in accordance with proration schedules, and such authority was upheld. The proration orders are entered under the authority of Art. 6008, §§ 10-14, and Art. 6049c, § 7, and the ratable-take order is entered under the authority of § 8a of Art. 6049a. Section 8, Art. 6049c, in part reads: “Such suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court.” The granting or refusal of further hearings on a matter which has previously been before the Commission on one or more earlier hearings is within the sound discretion of the Commission, and unless there is an abuse of discretion the courts do not interfere. Railroad Commission v. Herrin Transp. Co., Tex.Civ.App., 262 S.W.2d 426, er. ref., n. r. e. 73 C.J.S. Public Administrative Bodies and Procedure § 156, p. 490. Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 64 S.Ct. 1128, 88 L.Ed. 1420. The court did not err in granting a severance of the action attacking the ratable-take order from the action attacking the proration orders of the Commission since such actions involve different orders of the Commission and different issues, and in the interest of orderly procedure separate trials were desirable. As has been stated the proration orders were made in 1956, and the order concerning the ratable-take was made in 1959. In Pan American’s original petition the prayer was that the allocation formula be cancelled and that the ratable-take order be cancelled. In Humble’s petition in intervention the prayer was that the orders of the Commission establishing the allocation formula and ordering the common purchaser to take in accordance with the proration schedules be set aside. The trial court acted within its discretion in ordering the severance under Rule 41, T.R.C.P. Actions to attack proration orders are separate from actions attacking the ratable-take order. The orders are entered under authority of different statutes, appeals are authorized under two different kinds of orders containing different provisions. Pro-ration orders in gas fields are made under the provisions of Article 6008, §§ 1-14 and Art. 6049c, § 7, and ratable-take orders are issued under § 8a of Art. 6049a. Suits questioning the validity of proration orders are authorized by § 8 of Art. ,6049c, which contains the provision that in a trial the burden of proof is placed on the party attacking such order which is deemed prima facie valid. This statute has been construed to require trials under the substantial evidence rule. Appeals from ratable-take orders are provided by § 12 of Art. 6049a, with the provision that such order may be reviewed in the manner presented by Art. 6453. The statute authorizes appeals from orders of the Commission relating to railroad operations and rates, and suits attacking any such orders shall be tried and determined as other civil cases. The judgment of the trial court is affirmed.

2023-08-22 21:23:02.010394+00

Gray

*431GRAY, Justice (concurring). I concur in the result reached by Chief Justice Archer affirming the judgment of the trial court in this cause. However, I do not agree that the doctrines of laches and estoppel are applicable to the issues presented. On January 8, 1959 Pan American filed its application with the Commission seeking a revision of the allocation formula applicable to the field in question. This application contained allegations that conditions in the field have materially changed since the May 1, 1958 order. This application was denied hy the Commission January 12, 1959. This suit is termed an appeal from that order. As I understand the record appellants do not assert that changes in the conditions of the reservoir have developed since the May 1, 1958 order but say that numerous wells have been completed as producers in the field. It is my opinion that if the record was such as to require an adjudication of the issues of changed conditions in the reservoir as presented to the Commission then the cause could not have been properly disposed of by summary judgment proceedings in the trial court. Such however is not the case before us. The mere completion of producing wells in the field are not such changed conditions as require the Commission to revise or amend its proration formulae — no change in the reservoir ■conditions being shown. If this were true then the completion of every producing ■well in the field would call for such revision and amendment and the rules of the Commission could never be reasonably ¿stable.

2023-08-22 21:23:02.014298+00

Hughes

HUGHES, Justice (dissenting). It is my opinion that the Railroad Commission of Texas is not only vested with the power to but is charged with the duty •of regulating the production of natural gas both for the prevention of waste and the protection of correlative rights. It is also my opinion that this power and duty of the Commission is a continuing one and one which is not to he abridged or impeded by the act of any person and one which the Commission cannot voluntarily abrogate. It is also my opinion that this power and duty of the Commission and its exercise is not dependent upon so-called change of conditions. My reason for this last statement is that the Commission should have, and I believe does have, the power and duty to correct its mistakes if, perchance, it should make a mistake. There is authority for statement. In Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106, 1109, the Commission had entered an order denying a permit to drill a well and it was contended that the Commission was powerless to reconsider the matter and grant the permit in the 'absence of changed conditions. In overruling this contention the Court stated: “After a careful study of the pertinent statutes and the rulings of the commission on the question for years, we have reached the conclusion that it ought to be held that the right of review, in • spite of the absence of changed conditions, should be upheld.” See also Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73. The effect of granting a permit is shown by the case of Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W.2d 243. There a permit to drill was issued to Midas which acted under it. The Court held Stanolind estopped to attack the validity of the permit because of its unreasonable delay in filing suit. The Midas well was and the Moncrief well here is, in my opinion, subj ect to regulation by the Commission. Our statutes provide: *432“In recognition of past, present, and imminent evils occurring in the production and use of natural gas, as a result of waste in the production and use thereof in the absence of correlative opportunities of owners of gas in a common reservoir to produce and use the same, this law is enacted for the protection of public and private interests against such evils by prohibiting waste' and compelling ratable production.” Sec. 1, Art. 6008, V.A.C.S. “It shall be the duty of the Commission to prorate and regulate the daily gas well production from each common reservoir in the manner and method herein set forth. The Commission shall prorate and regulate such production for the protection of public ■ and private interests: “(a) In the prevention of waste as ‘waste’ is herein defined. “(b) In the adjustment of correlative rights and opportunities of each owner of gas in a common reservoir to produce and use or sell such gas as is permitted in this Article.” Sec. 10, Art. 6008. Commenting upon the authority conferred by these statutes upon the Commission, this Court in Railroad Commission v. Humble Oil & Refining Co., 193 S.W.2d 824, 828, writ, ref., N.R.E., stated: ■ “The Commission’s power to regulate oil production in the interest both of .conservation and of protecting correlative rights is a continuing one, and its proration orders are subject to change, modification or amendment at any time, upon due notice and hearing, either upon the Commission’s own motion or upon application of an interested party. This principle is now so well established as to require no citation of authority.' It should also be noted that, each of the proration orders- governing the Hawkins- field contained the following provision: “ ‘It is further ordered that this cause be held open on the docket for such other and further orders as may be necessary and supported by evidence of record.’ “Thus each order carried on its face notice to everyone thereafter dealing with properties in the field, that it was subject to appropriate change.” Other authorities of similar import are: Railroad Commission v. Marathon Oil Co., Tex.Civ.App. Austin, 89 S.W.2d 517, writ ref.; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368; Id., 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358; Chenoweth v. Railroad Commission, Tex.Civ.App. Austin, 184 S.W.2d 711, writ ref., w. o. m. In the first Rowan case, supra, the Court in sustaining a proration order against the contention that it would cause unlawful drainage adopted the argument of the Railroad Commission in this language [310 U.S. 570, 60 S.Ct. 1025]: “The Commission’s experts insist that the threat,, if existent at all, is speculative,, and that the Commission’s power of continuous oversight is readily available for relief if real danger should arise in the future.” In the second Rowan case, supra, also a proration case, the Court stated [311 U.S. 570, 61 S.Ct. 346]: “The real answer to any claims of inequity or to any need of adjustment to shifting circumstances is the continuing supervisory power of the expert commission.” See also Railroad Commission of Texas v. Rowan Oil Co., 152 Tex. 439, 259 S.W.2d 173, 176, where-the Court stated: “Sections 10 and 11, Art. 6008, R.C.S.1925, Vernon's Ann.Civ.Stat, grant the Railroad Commission the power. to-; regulate the flow from .a *433nonwasteful well in order to protect correlative rights.” I adopt the following from the brief of Pan American: “Nearly 25 years ago, the Supreme Court in the case of Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 938, 99 A.L.R. 1107 (1935), made the following statement: “ ‘The oil industry in this state has become stupendous. There are now many separate oil fields operated in this state, under varying conditions. Texas is now the leading state in the production of oil and in oil refineries. The handling of this giant industry and its complex problems calls for the services of trained and experienced persons. It is utterly impossible for the Legislature to meet the demands of every detail in the passage of laws relating to the production of oil and gas. The necessities of the situation require that this duty be placed upon some tribunal to carry out some just and reasonable public policy. This duty is placed on the Railroad Commission.’ “Since that opinion was written, hundreds of additional oil and gas fields have been discovered; more than 100,000 additional wells have been drilled; oil and gas reserves have greatly increased; production of oil and gas has increased; an increasing amount of natural gas is being transported in long-distance pipelines and sold in interstate commerce; a vast amount of technical information has been obtained in regard to the performance and most efficient method of operating and producing oil and gas reservoirs; the technique of drilling, operating, producing and marketing has changed and will continue to change, and the appellate ■ courts of this State- have written hundred opinions relative to' these subjects. “The Legislature certainly had in mind the fact that in numerous respects changes will always take place in the oil and gas industry, thus necessitating the continuous supervision of the Commission.” Clearly the Railroad Commission has the continuing duty to supervise and regulate the oil and gas industry within the limits of the power granted to it. The validity of the exercise of this power is sustained under the police power of the State and specific constitutional authority. Brown v. Humble Oil & Refining Co., supra. It is elemental that all property is held subject to the valid exercise of the police power of a State, and that the right of a legislative body to exercise this power cannot be bargained away or abrogated. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451. No one has a vested right in the continuance of rules of law beneficial to him, there being no deprivation of vested property rights. Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527. More specifically, no one has a vested right in the continuance of a proration order of the Commission even though its modification may result in economic loss to him. In Railroad Commission of Texas v. Fain, 161 S.W.2d 498, 500, writ ref., w. o. m., this Court held: “Nor is the fact that the Commission’s order will result in economic loss to appellees controlling. Any order of the Commission limiting density of drilling, daily allowable per well, or controlling storage, transportation and marketing necessarily affects property values - and profits from production of oil. But this is necessarily incident to the police power of the State to .regulate any business affected with *434a public interest, so Ions' as it treats all alike.” There is a distinction between the regulation of a nonwasteful oil or gas well and its destruction. This was pointed out in Rowan, 152 Tex. 439, 259 S.W.2d 173, supra. The same distinction differentiates the Midas and similar cases cited by the majority to sustain its holding on estoppel. Midas is authority only for the rule that a private interested party may be estopped by long delay to question the validity of a permit to drill a test well for oil or gas when the permittee has incurred substantial obligations by reason of the permit. It is completely foreign to the authority and duty of the Commission to regulate production from the well once it is completed as a producer. It- is my opinion that laches and estop-pel are inapplicable to the type of hearing and relief sought by Pan American and that the Commission and the Court below should have determined the matters presented upon their merits, and I would reverse and remand this cause for that purpose.

2023-08-22 21:23:02.272601+00

McGINLEY

McGINLEY, Judge. Brubacher Excavating, Inc. (Brubacher) seeks review of an order of the Workers’ Compensation Appeal Board (Board) that affirmed the Workers’ Compensation Judge’s (WCJ) denial of Brubacher’s petition for a subrogation lien. The WCJ made the following pertinent findings of fact: 1. The claimant, James Bridges [Bridges], was employed by Brubacher ... on September 17, 1992 as a Master Mechanic. 2. On September 17,1992, Bridges suffered a back injury at a job site operated by Brubacher ... while lifting a cylinder head from an engine. 3. On September 18, 1882[sic], Bridges gave notice to his employer of the injury. 4. From September 18, 1992 to November 8, 1993, Bridges was receiving total disability benefits in the amount of $455.00 per week. 5. On November 8, 1993, Bridges began working for Diesel Services, Inc. [Diesel] ... as a Service Writer/Service Advisor. 6. In this position with Diesel ... Bridges was earning approximately $400 per week, as well as receiving partial disability benefits in the amount of $245.46 per week. 7. As a result of Diesel’s ... worker’s compensation insurance carrier’s refusal to extend coverage to Bridges, Bridges was terminated from his position at Diesel Services on November 22,1993. 8. On November 22, 1993, Bridges’ total disability benefits were reinstated. 9. Since November 22, 1993, Bridges has remained on total disability due to his back injury. 10. On or about February 2, 1995, Bridges filed a civil action in the United States District Court for the Eastern District of Pennsylvania to Docket No. 95 CV 0637, against Diesel ... under the Americans with Disabilities Act. 11. The above-referenced civil action alleged unlawful discrimination on the part of Diesel ... for its termination of Bridges based upon perceived disability. 12. The above-described federal civil action demands compensatory and punitive damages in excess of Fifty Thousand Dollars and °9ioo ($50,000.00). 13. Said civil action is currently pending in federal court, and is expected to be tried in or around November of 1995.1 *127614. The two injuries (the back injury and the civil rights violation) are different in both type and causation. 15. Brubacher and Aetna do not have any right of subrogation against any recovery Bridges may obtain in the aforementioned civil action. WCJ’s Decision, July 24, 1996, Findings of Fact Nos. 1-15. The WCJ concluded that Brubacher and Insurer were not entitled to subrogation because “[tjhere is no provision whatsoever under the Pennsylvania Workmen’s Compensation Act which permits an employer a right of subrogation as against a recovery in an action for a wrong unrelated to the causation of the compensable injury.” WCJ’s Decision, Conclusions of Law No. 8. The Board affirmed and concluded: In this case, the compensable injury is the Claimant’s [Bridges] back injury. No action by Diesel caused the Claimant’s [Bridges] back injury and no action by Diesel contributed to the Claimant’s [Bridges] back injury. Rather, Diesel’s actions resulted in a new and different injury, a civil rights violation, separate and apart from the original and compen-sable injury so that Defendant [Bru-bacher] is not entitled to subrogation. ... [H]ere ... Diesel’s action in illegally firing the Claimant [Bridges] was a subsequent, separate event disassociated with the Claimant’s [Bridges] back injury. Although the Defendant [Brubacher] argues that Diesel’s actions are associated with the Claimant’s [Bridges] back injury in that it was because of the back injury Diesel refused to extend workers’ compensation coverage and instead illegally fired the Claimant [Bridges], we believe this is too attenuated to entitle the Defendant [Brubacher] to subrogation. [Also], in this case there were two separate injuries and two separate causes of actions. The Claimant [Bridges] receives workers’ compensation benefits for his inability to work due to his back injury, and received a settlement from Diesel in restitution for his unlawful dismissal. The Claimant [Bridges] is not receiving a double recovery for one injury, but rather two recoveries for two separate injuries. Board’s Decision, March 5, 1999, at 3-5. On appeal2 Brubacher contends that it has a right of subrogation to the proceeds of Bridges settlement with Diesel of his civil action under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101. Section 319 of the Workers’ Compensation Act (Act)3, 77 P.S. § 671 provides: Where the compensable injury is caused in whole or in part by the act or. omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party to the extent of the compensation payable under this article by the employer .... Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the émploy*1277er on account of any future installments of compensation, (footnote omitted). Brubacher asserts that the fundamental policy for the promulgation of the subrogation language in Section 319 of the Act is to prevent double recovery by the claimant. In Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980), our Pennsylvania Supreme Court provided some insight concerning the rationale behind the right of subrogation. In Dale, Edith Bre:i-si (Bressi) had sustained a work-related injury to her back in the nature of a ruptured disc. Bressi underwent surgery for removal of the disc. “The parties entered into an open compensation agreement under which the claimant [Bressi] was to receive weekly compensation plus medical and hospital expenses.” Id. at 495, 421 A.2d at 654. After surgery, Bres-si developed an infection that prevented her surgical wound from healing. After Bressi underwent a second operation the doctor discovered that he failed to remove a “cottonbid pad” during the initial operation. Bressi brought suit and alleged that her doctor was negligent. Bressi’s doctor settled the claim in the amount of $30,000. Pursuant to a compensation agreement, Dale Manufacturing Company (Dale) paid for the two operations and continued weekly compensation payments. On June 25, 1973, Dale filed a petition to suspend payments and to determine subrogation rights. Dale alleged that the doctor’s negligence had aggravated Bressi’s initial injury and that it was entitled to subrogation to recover previously paid compensation and medical expenses and also a credit for future payments. The WCJ agreed and directed subrogation. The Board reversed the WCJ and this Court affirmed on appeal. See Dale Manufacturing Co. v. Workmen’s Compensation Appeal Board, 34 Pa.Cmwlth. 31, 382 A.2d 1256 (1978). Our Pennsylvania Supreme Court granted allocatur and noted: Employer [Dale] correctly asserts that the rationale for the right of subrogation is threefold: to prevent double recovery for the same injury by the claimant, to insure that the employer is not compelled to make compensation payments made necessary by the negligence of a third party, and to prevent a third party from escaping liability for his negligence .... “[T]his result is just, because the party who caused the injury bears the full burden; the employee is made ‘whole,’ but does not recover more than what he requires to be made whole; and the employer, innocent of negligence, in the end pays nothing.” Thus where a third party’s negligent conduct causes injury to an employee actually engaged in the business of his employer, there is a clear, justifiable right to subrogation under Section 319 of the Act. In the case at issue, however, the third party’s negligent conduct occurred subsequent to the original, compensable injury. In order for employer to establish a right of subrogation in this case, the Commonwealth Court has said, ‘the employer must show he is compelled to make payments by reason of the negligence of a third party and the fund to which he seeks subrogation was for the same compensable injury for which he is liable under the Act. Dale Manufacturing Company ..., 34 Pa.Cmwlth. at 35, 382 A.2d at 1259. The above assertion is based upon the rationale behind Section 319 of the Act as we noted in Stark v. Posh Construction Company, [192 Pa.Super 409, 162 A.2d 9 (1960)], and the distinction drawn in Savage v. Jefferson Medical College Hospital, 7 Pa.Cmwlth. 35, 298 *1278A.2d 694 (1972). The court in Savage drew a distinction between new and independent injuries caused by a third party and those that aggravate or extend the initial compensable injury, holding that only the latter entitled an employer to subrogation rights.... In the present case, employer seeks to establish evidence from pleadings which were filed in an unrelated ease in' which he was not a party and where factual issues were never determined because the case was settled out of court .... (citations omitted). Id. at 496-98, 421 A.2d at 664-55. The Supreme Court affirmed this Court’s determination that Dale failed to establish a right to subrogation under Section 319 of the Act. In Maitland Brothers Co., Inc. v. Workmen’s Compensation Appeal Board (Moser), 92 Pa.Cmwlth. 421, 499 A.2d 713 (1985), the claimant suffered a work-related injury to his back on May 9, 1990, and he received total disability benefits from that date. “On February 6, 1981, while driving his automobile, he was struck in the rear causing complaints for which he settled with this tortfeasor in the amount of $15,000.00.” Id. at 714. Maitland Brothers Co., Inc. (Maitland) sought a termination of compensation benefits and alleged that “its liability for Claimant’s continuing disability terminated or diminished by reason of the collision on February 6, 1981. . . .” Id. at 714. The referee [WCJ] concluded that “[t]he accident to Claimant’s back, in the very same place of the original accident ‘in part’ contributed to the cessation of thought of returning to work” and that “[ujnder the Act Defendant Carrier is subrogated to the right of the employee ... against such third party to the extent of the compensation payable under article 319 by the employer .... ” (emphasis in original). Id. at 715 citing the referee’s Conclusion of Law No. 5. The referee dismissed the termination petition and directed Maitland and Insurer to take a $15,000 credit and that upon exhaustion of the credit Maitland and Insurer were to resume paying disability benefits. The Board reversed. On appeal this Court addressed the sub-rogation issue: As our emphasis [referring to the term compensable injury in Section 319 of the Act] has indicated, subrogation may only be achieved through a third party recovery to the extent that the damage caused by such third party has contributed to the ‘compensable injury.’ We take it, therefore, that Section 319 does not permit reduction in compensation liability for the compensable injury because of some recovery that takes place after such injury is incurred, particularly if such subsequent injury is not ‘in whole or in part’ a contributing factor in the original ‘compensable injury.’ Thus, since subrogation may only result where the same injury, or ‘the compen-sable injury, is the cause for the third paUy recovery, Section 319 may not afford relief here in the form of a credit to the employer as against its future liability for compensation payments. In fact, even where recoveries have been achieved against a third party for medical malpractice arising out of treatment for the original compensable injury, sub-rogation out of the malpractice recovery has been denied. Dale_ Since the negligent conduct of the third party in this case did not occur while the employee was actually engaged in the business of his employer and whatever injury was caused by the third party was separate and apart from the original compensable injury, we can find no er*1279ror in the Board’s decision .... (emphasis in original and added; citations omitted). Id. at 715-16. Here, the WCJ found that Bridges sustained two separate and distinct injuries. Firstly, Bridges suffered a back injury while employed by Brubacher and second, Bridges was a victim of intentional discrimination incurred while employed by Diesel. The discriminatory conduct on the part of Diesel was totally unrelated to the performance of his duties as a master mechanic with Brubacher and we believe the discharge was separate and apart from his original back injury. Section 319 of the Act requires causation between the injury and the act or omission of a third party to facilitate subrogation. When the language of a statute is unambiguous this Court is precluded from resorting to other methods of statutory construction. Allegheny County Institution District v. Department of Public Welfare, 668 A.2d 252 (Pa.Cmwlth.1995), appeal denied 547 Pa. 757, 692 A.2d 567 (1997). The back injury was not caused by any act or omission of Diesel.4 Accordingly, we affirm. ORDER AND NOW, this 7th day of May, 2001, the order of the Workers’ Compensation Appeal Board in the above captioned matter is affirmed. . On September 7, 1996, Bridges' ADA civil action was settled with Diesel for an undisclosed amount. . This Court’s review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed and whether necessary findings of fact are supported by substantial evidence. Boehm v. Workmen’s Compensation Appeal Board (United Parcel Services), 133 Pa. Cmwlth. 455, 576 A.2d 1163 (1990). . Act of June 2, 1915, P.L. 736, as amended. . We note that although Bridges was the victim of Diesel’s discriminatory conduct Bru-bacher did not incur any greater liability than if Bridges had not been hired by Diesel.

2023-08-22 21:23:02.27756+00

Doyle

DOYLE, President Judge, Concurring. While I agree with the Majority that the Board properly affirmed the decision to deny Brubacher’s petition for a subrogation hen, I write separately because I do not agree with the Majority’s analysis and rebanee on Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980) and Maitland Brothers Co., Inc. v. Workmen’s Compensation Appeal Board (Moser), 92 Pa.Cmwlth. 421, 499 A.2d 713 (1985), to reach that conclusion. On the other hand, I also do not agree with the analysis, or conclusion, of the dissent which seems to suggest that an employer has a subrogable interest against a third party tortfeasor by applying a “but for” causal connection standard between the work-injury and the subsequent event leading to the third party recovery. As Judge Leadbetter correctly observes, however, in her dissenting opinion, “courts have repeatedly recognized that subsequent events which do not flow naturally from the initial work-related injury may themselves, under certain circumstances, be compensable to the extent that they increase the level or duration of the disability.” (Dissent, op. at 1280.) The proper causation analysis is best illustrated, I believe, in Powell v. Sacred Heart Hospital, 99 Pa.Cmwlth. 575, 514 A.2d 241 (1986), a case involving a recovery for a death caused by malpractice that occurred during surgery related to decedent’s work-related back injury, where Judge Barbieri distinguished Dale and wrote: Our decision in Dale was affirmed by the Supreme Court ... but on the ground that there was insufficient evidence on which to make a determination as to whether the failure of a surgeon to remove a cottonoid pad from the wound and the subsequent surgery required for the removal of the pad ‘either aggravated the original injury or caused a new and independent one.’_ Here, however, there is no question that the surgical procedure, to alleviate a condition *1280caused in the course of employment and for which compensation liability had been accepted by the insurer, was not a separate event dissociated from the original injury. In fact, the circumstances here involve a surgical death from one of the regular hazards of surgery, anesthesia, quite unlike the failure to remove a cottonoid pad from the wound in Dale. Here, and as contended in the third party action, the decedent suffered a respiratory arrest leading to a cardiac arrest whereupon the surgery was aborted but decedent died when taken to the intensive care unit. Indeed, we find a striking similarity of this case to Hornetz [v. Philadelphia & Reading Coal & Iron Co., 277 Pa. 40, 120 A. 662 (1923)] where a mineworker who sustained a compound fracture of his right index finger at work for which he was operated upon with the use of anesthesia which caused dilation of his heart and death. The Supreme Court sustained an award of compensation benefits for the death upon the following statement: The violence caused the injury, the injury caused the operation, the operation caused the anesthetization, the anesthetization caused dilation of the heart and dilation of the heart caused death. Hence there was a causal connection between the [original] violence and [the subsequent] death. Powell, at 244-245. Based on the above reasoning, the Powell Court concluded that the insurer was entitled to subrogation out of the amount received in the malpractice action In my view, the analysis applied in Powell and Hometz to determine the causal connection between the original work injury and the subsequent event for which a third party is hable is analogous to the traditional tort standard of causation referred to as proximate or legal cause: an actor’s conduct is the legal cause of a harm where the conduct is a substantial factor in bringing about the harm. See Hicks v. Metropolitan Edison Co., 665 A.2d 529 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 544 Pa. 638, 675 A.2d 1253 (1996). Applying traditional tort causation principles to the facts in the case sub judice, it is clear that the subsequent event here— unlawful discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213—was not causally connected to the injury that Claimant sustained while working for Brubacher. The civil rights claim against Diesel Services was an absolute distinct cause of action secured by a federal statute, a statute rooted in social policy, and the action was based on the intentional wrongful conduct of Diesel. Therefore, the Majority correctly concluded that the Board did not err in denying Brubacher’s petition for a sub-rogation lien.

2023-08-22 21:23:02.281613+00

Leadbetter

LEADBETTER, Judge, Dissenting. This case raises the novel issue of whether an employer paying workers’ compensation benefits can assert a subro-gation hen against an employee’s third party recovery from a subsequent employer when the recovery is based upon a civil rights claim stemming directly from the compensable injury. Because I believe that an employer may do so, I respectfully dissent. Our courts have repeatedly recognized that subsequent events which do not flow naturally from the initial work-related injury may themselves, under certain circumstances, be compensable to the extent that they increase the level or duration of the disability. Hornetz v. Philadelphia & Reading Coal & Iron Co., 277 Pa. 40, 120 A. 662 (1923). Similarly, a recovery against third parties responsible for such *1281later events may be subject to subrogation under Section 319.1 Powell v. Sacred Heart Hosp., 99 Pa.Cmwlth. 575, 514 A.2d 241 (1986). Review of cases in this court reflects that a two-part test has emerged to determine whether subrogation is appropriate. The employer must establish: (1) a causal connection between the original work-related injury and the subsequent event for which a third party is liable;2 and (2) that as a result of the subsequent event employer was compelled to pay compensation benefits greater than those required by the initial injury.3 See Griffin v. Workers’ Compensation Appeal Bd. (Thomas Jefferson Univ. Hosp.), 745 A.2d 61, 64 (Pa.Cmwlth.1999); Powell, 514 A.2d at 244. It is apparent that both prongs ®of the test have been met in this case. Claimant’s back injury caused Diesel Services’ insurance provider to deny coverage and that denial caused Diesel Services to terminate Bridges.4 First, the causal chain in the present case is even more direct than in the medical malpractice situation, where subrogation claims are routinely allowed. See, e.g., Powell, 514 A.2d at 245 [quoting Hornetz, 277 Pa. at 41, 120 A. at 662 (“The violence caused the injury, the injury caused the operation, the operation caused the anesthetization, the anesthetization caused dilatation of the heart, and dilatation of the heart caused death. Hence there was a causal connection between the [original] violence and [the subsequent] death.”) ]. Second, as a direct result of Diesel Services’ wrongful action, Brubacher’s weekly compensation payments to Bridges increased from $245.26 to $455.00. Accordingly, subrogation should have been allowed. PELLEGRINI, Judge, joins this dissenting opinion. . Section 319 of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671. . Compare with Maitland Bros. Co., Inc. v. Workmen’s Compensation Appeal Bd. (Moser), 92 Pa.Cmwlth. 421, 499 A.2d 713 (Pa.Cmwlth.1985) (subrogation was disallowed because of the lack of a causal connection between claimant's work-related back injury and his subsequent automobile accident). . Compare with Jefferson Med. College Hosp. v. Savage, 7 Pa.Cmwlth. 35, 298 A.2d 694 (1972) (subrogation was disallowed because the additional injury did not give rise to any additional compensation payments). . Paragraph 26 of Bridges’ complaint against Diesel Services alleges, "Two weeks after Plaintiff commenced employment, an employee, agent, and/or servant of Defendant employer’s Worker’s Compensation insurer ... refused to extend required worker’s compensation coverage to plaintiff due to its concerns about potential actuarial risk presented by Plaintiffs prior back injury." (Emphasis added). Paragraph 28 of the complaint alleges, "In spite of Plaintiff’s acknowledged superior qualifications for the position, Plaintiff's outstanding job performance, and Aetna’s written willingness to assume worker's compensation coverage for Plaintiff, Plaintiff was terminated by [Diesel] on approximately November 22, 1993.”

2023-08-22 21:23:34.15886+00

Woodley

WOODLEY, Judge. The offense is contributing to the delinquency of a girl under 17 years of age; the punishment, 30 days in jail and a fine of $100. The notice of appeal recites that the defendant gave notice of appeal to the Court of Civil Appeals at Austin, Texas. Such notice was not in compliance with the statute and was insufficient to confer jurisdiction upon this court. Ex parte Moore, 109 Tex. Cr. R. 73, 3 S.W. 2d 86, Ayers v. State, 66 Tex. Cr. R. 281, 146 S.W. 171; Thomas Doekery v. State, 56 Tex. Cr. R. 246, 119 S.W. 846. Supplemental transcript has been filed which contains the affidavit of one of the sureties. It adds nothing to the recognizance appearing in the transcript, which binds appellant and his sureties to abide the judgment of the Court of Criminal Appeals of the State of Texas. *519We are bound by the notice of appeal entered of record in the trial court. If a proper notice of appeal was given in open court, as required by Art. 827 V.A.C.C.P., that statute provides the method by which its entry in the record may be obtained. The state’s motion to dismiss the appeal is granted and the appeal is dismissed.

2023-08-22 21:23:34.162517+00

Davidson

DAVIDSON, Judge, (dissenting). To my mind, the holding in the case of Blackman v. State, 20 S. W. 2d 783, is unanswerable, and shows that the appeal in this case ought not to be dismissed. That case has been here overruled by the court, notwithstanding the fact that it was expressly approved as late as Braun v. State, 158 Tex. Cr. R. 394, 257 S. W. 2d 708. The case of Allen v. State, 138 Tex. Cr. R. 523, 137 S. W. 2d 780, holding-contrary to the Blackman case and in keeping with the instant holding, was there expressly overruled. The Blackman case announces the correct rule that inasmuch as there is only one court to which an appeal might be given in a criminal case all that is required of one desiring to appeal his case is to give notice of appeal in open court, as the statute, Art. 827, C. C. P., provides, and that no necessity exists to name any court, or the Court of Criminal Appeals, as the court to which the notice of appeal is given. Here, when the appellant gave notice of appeal in open court and that notice of appeal was entered of record, he complied with the requirement of the law touching the giving of notice of appeal. The fact that the words “The Court of Civil Appeals, Austin, Texas” were added to that notice of appeal could not defeat the valid notice of appeal that had been given, because no authority existed to appeal the case to that court. If the Court of Civil Appeals had jurisdiction of an appeal in a criminal case a different situation would have been presented, but such is not the law. When a defendant rises in open court and gives notice of appeal in his case, the law fixes the court, and the only court, to which that appeal goes for determination. The naming of the Court of Civil Appeals as the court to which the notice of appeal was given was therefore surplus-age and should be rejected for that reason. *520Here, this man has been denied the right to have his case heard upon appeal not because he did not do that which the law required of him—that is to give notice of appeal in open court— but because he went further than the law required and named a “civil” court rather than a “criminal” court. The only defect, then, lies in the use of the word “Civil” rather than “Criminal.” The injury which this appellant has received in the dismissal of his appeal and in not having his conviction reviewed is shown by the fact that the charge of the court upon accomplice testimony was error for which the conviction should have been reversed. I dissent.

2023-08-22 21:23:34.804944+00

Dixon

DIXON, Chief Justice. This is a suit for declaratory judgment and injunction brought by appellees Texas Delivery Service, Inc., and six other companies against appellants E. C. Law and other persons, all officials or employees of Texas Department of Public Safety, to restrain appellants from arresting and prosecuting appellees for alleged violations of the Texas Motor Carrier Act, Art. 911b Vernon’s Ann.Civ.St,, and Art. 1690b of the Penal Code. Appellants, along with their answer, filed pleas in abatement and to the jurisdiction, which pleas were overruled. Appellees allege, and it is stipulated as a fact, that they are engaged in the local delivery business, transporting property for hire for the general public within Dallas County, Texas and within the “metropolitan area” of said County. Appellees further allege, and it is stipulated, that they never operate their trucks upon a public highway not included within the corporate limits of an incorporated city or town in Dallas County. Therefore they claim that they are not subject to the Texas Motor Carrier Act, are not subject to regulation by the Texas Railroad Commission, and are not required to apply for and receive a certificate of public convenience and necessity from the Railroad Commission in order to operate their trucks and business. Several common carriers, operators of trucks and railroads, filed pleas of intervention, in which they espoused the cause of appellants, asserting that appellees as a matter of law are subject to the Texas Motor Carrier Act. However appellees’ motion to strike was sustained as to all inter-*654venors except Santa Fe Trails Transportation Company and three other companies engaged in the business of transportation of freight by trucks for hire. Following trial the court entered judgment declaring that (1) appellees are entitled to continue their operations so long as such operations are confined to moving from and to and between incorporated cities, towns and villages in the County of Dallas, if in the course of any such transportation no highway in an unincorporated area is traversed; (2) the true meaning of the Texas Motor Carrier Act is that authority from the Texas Railroad Commission is not required except in those instances where in the course of the journey from one incorporated city, town or village to another there is an intervening space of public highway which is not within the corporate limits of any incorporated city, town or village; and (3) the territorial application of the judgment rendered by the court is confined to Dallas County only, such being the scope of appellees’ pleadings and operations. The court also granted a permanent injunction restraining appellants from interfering with the operations of appellees provided said operations are conducted within the scope and limitations set forth in the judgment. There appears to be no dispute about the facts. For purposes of this lawsuit a definition of the term “metropolitan area” was stipulated to be the following: “ * * * the several municipalities in Dallas County which have a common boundary either with the City of Dallas itself, or with a municipal corporation that does have a common boundary with the City of Dallas”. One of the witnesses was appellant E. C. Law, License and Weight Captain of Region 1, Dallas, an employee of Texas Department of Public Safety, which Department is charged with the enforcement of Texas Motor Carrier Act, Art. 911b, V.A. C.S., and Art. 1690b, Texas Penal Code. Captain Law told' of the factual background leading up to the present controversy. Until about 19S3 the only cities whose boundaries were contiguous to those of the City of Dallas were the cities of Highland Park and University Park. In 1954 other towns began to grow until their boundaries were contiguous with those of the City of Dallas. Seeking information regarding the situation, Captain Law came across a letter written earlier by Bryan Bell, then Director of Motor Transportation of the Texas Railroad Commission. Bell’s opinion was that local delivery service carriers could travel from town to town in Dallas County if the city limits of the towns touched anywhere, regardless of whether the actual route they travelled was partly on a public highway. Later Chief Odom, following a conference in Austin, Texas, directed Captain Law to enforce the Act as to carriers going from Dallas to other cities unless the carriers were always actually within the city limits of one of the contiguous cities. The law was enforced in that manner until 1958 when the Attorney General of Texas issued an opinion to the effect that a carrier is subject to the Texas Motor Carrier Act if he travels from one incorporated town to another even if he does not travel any open road or highway between towns. Captain Law further testified that he has been instructed that local delivery services which operate between cities are subject to the Motor Carrier Act, though the cities are contiguous and the route between them includes no open space on the highway not in an incorporated city; and he has been ordered to enforce the law accordingly. However he also has been di-, rected by Col. Homer Garrison of the Department of Public Safety not to file prosecution proceedings in such cases until the present appeal is determined. A map was introduced in evidence showing that Highland Park, University Park and Cockrell Hill are not only cities with boundaries contiguous to the City of Dallas, but are island cities entirely surrounded *655by Dallas. The cities of Grand Prairie, Irving, Mesquite, Garland, Farmers Branch, Lancaster and Richardson are incorporated municipalities whose boundaries are contiguous to Dallas. Carrollton is contiguous to Farmers Branch. Several other municipalities are either contiguous to Dallas, or are contiguous to municipalities which are contiguous to Dallas. V.A.T.S. Penal Code, Art. 1690b provides for the arrest, prosecution and fine of persons violating the Motor Carrier Act. It is under this provision of the Act that appellants intend to proceed in their efforts to enforce the law against appellees. In their first three points on appeal appellants assert that the trial court erred (1) in overruling appellants’ plea to the jurisdiction, since appellees’ suit seeks equitable relief to enjoin criminal proceedings, and to stay the hands of law enforcement officials in enforcing criminal law; (2) in granting injunctive relief, since ap-pellees have an adequate remedy at law by raising their defenses, if any, in a criminal proceeding if filed; and (3) in failing to dismiss appellants’ suit for want of jurisdiction, for the reason that equity will not attempt to stay criminal proceedings, or attempt to stay the hand of police officers in enforcing criminal law except where the law attempted to be enforced is (a) unconstitutional and void, and (b) its enforcement will result in irreparable injury to vested property rights. Appellants’ first three points are well taken. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294, 295, was a habeas corpus proceeding involving an injunction restraining police officials of Navarro County and the State of Texas from arresting and prosecuting haulers of cotton in trucks where the load weighed in excess of 7,000 pounds. The truck haulers claimed that the law was discriminatory, and that they had a right to haul loads of 11,000 pounds, the same as operators engaged in short hauls. Police officials were arrested and ■placed in jail for violating the injunction and appealed to our Supreme Court by way of habeas corpus. In granting the writ and ordering the relators discharged, the Supreme Court said : “Under the well-established rules of equity jurisprudence, it is clear that the district judge was without authority to issue the writ of injunction to prevent the enforcement of the law regulating the operation of motor-trucks upon the highways of this state unless the petition for such injunction clearly showed the existence of two facts, viz.: First, that such law is unconstitutional and void; second, that its enforcement constitutes a direct invasion of a vested property right of the complainants. * * * We are of the opinion that the allegations of the petition in the case in which the injunction was issued do not show the existence of either of said facts. * * * We are further of the opinion that the petition upon which the injunction was issued shows upon its face that no vested property right of the complainants would be affected by the enforcement of this act. The complainants in the proceeding in which the injunctions were issued are not making, in common with the general public, the ordinary use of the highways, but an extraordinary one for the purpose of carrying on a business for profit. That they have no vested right to so use such highways is beyond question. Public highways and streets are constructed and maintained at the public expense. No person, therefore, can insist that he has, or may acquire, a vested right to use such streets and highways in carrying on a commercial business.” In Ex parte Phares, 122 Tex. 104, 53 S.W.2d 297, 298, the facts were slightly different. The truck operators claimed that they were entitled to carry 14,000 pound loads because the routes over which they *656operated had no common carrier receiving and unloading points equipped to transport the commodities they handle, thus bringing complainants within Section 7 (Section 5-b) of the Motor Vehicle Act, Chapter 282, 42nd Legislature, Vernon’s Ann.P.C. art. 827a. In disposing of the above contention our Supreme Court said: “The effect of complainants’ averment in this respect is that they are threatened by relators with criminal prosecutions for acts which do not in fact constitute a violation of said law, “Assuming these allegations to be true, still there is no basis for the interposition of a court of equity. The power and authority to interpret this act rest exclusively with the courts of this state exercising criminal jurisdiction. A court of equity will not, through the medium of an injunction, determine whether given acts violate the provisions of a criminal statute. Such construction can be had only in the due and orderly enforcement of the statute through the forum prescribed for the trial of criminal cases.” Other cases which uphold appellants’ view in this -suit are Malone, et al. v. City of Houston, Tex.Civ.App., 278 S.W.2d 204; Stecher v. City of Houston, Tex.Civ.App., 272 S.W.2d 925; State ex rel. Flowers et al. v. Woodruff et al., 150 Tex.Cr.R. 255, 200 S.W.2d 178. Kemp Hotel Operating Co. v. City of Wichita Falls et al., 141 Tex. 90, 170 S.W.2d 217; State, et al. v. Ferguson, 133 Tex. 60, 125 S.W.2d 272; Barkley v. Conklin, Tex.Civ.App., 101 S.W.2d 405; and Greene v. City of San Antonio et al., Tex.Civ.App, 178 S.W. 6. In the instant case appellants do not allege that the statute in question is unconstitutional and void. They say in effect that if the statute is given the interpretation for which they contend they have a valid defense against its enforcement against them in a criminal prosecution. Such a contention is not sufficient to invoke the aid of equity in denial of the jurisdiction of criminal courts. Moreover appellants have failed to show that the enforcement of the statute constitutes a direct invasion of their vested property right. As pointed out in the cases above quoted and cited, no one has a vested right to use city streets and public highways for the transportation of freight or passengers for hire. Among cases cited by appellees is Galveston Truck Line Corporation v.. State, Tex.Civ.App, 123 S.W.2d 797. The holding there is not in point here. In that case the State brought suit for injunction to restrain appellants from violating the Motor Carrier Act. The statute itself Vernon’s Ann.P.C. Art. 1690b(c) expressly gives the State the right to maintain such’ a suit. Appellants’ first three points on appeal are, sustained. Appellants have briefed three other points but in view of our sustaining the first three points, it is unnecessary for us to pass on the fourth, fifth 'and sixth points. The judgment of the trial court will be reversed, and judgment will here be rendered dismissing appellees’ cause of action.

2023-08-22 21:23:34.809118+00

On Rehearing In the interest of accuracy we quote the testimony of Captain Law with reference to the letter from Director Bryan Bell: “In my searches I come up with a letter that was wrote by Mr. Bryan Bell, his personal opinion, to someone we had filed charges against, that if the city limits that touched were contiguous, they would not have to have authority.” Appellees say that we erred in our original opinion in making .this statement: “V.A.T.S. Penal Code, Art. 1690b’ provides for the arrest, prosecution and fine of persons violating the Motor Carrier Act. It is under this provision-*657of the Act that appellants intend to proceed in their efforts to enforce the law against appellees.” Appellees point out that in their petition they pled that they were threatened with arrest and the stopping of their business either by criminal prosecutions or by injunc-tive process. The paragraph quoted from our opinion was based on the testimony of Captain Law as follows: “And Colonel Garrison asked the Attorney General for a ruling in view of a criminal prosecution, which ours would be if we filed on one.” * * * “Q. (By Mr. Currie) That is what you are presently doing? A. Yes, Sir. “Q. Except in this instance where we have got a stipulation that you are not going to do it as long as this case is pending, or until the Attorney General — A. I have orders from Colonel Garrison not to file on those type of cases until this case is settled. “Q. If it hadn’t been for our bringing this case, you would have already been doing it? A. Yes, sir. * * * “Q. If this lawsuit were not pending, and you had not received the instructions from your superiors that you previously mentioned, and you filed on a truck line such as one of the plaintiffs here, for operating as described in their petition, would you be doing so as an official act of the Department of Public Safety? A. Yes, sir, that is the only interest I have in this case. “Q. And you would not be doing so as E. C. Law, an individual? A. No, sir. “Q. You would be doing it in your official capacity? A. Yes, sir.” In their motion for rehearing appellees cite three cases which they did not cite in their original briefs. These three cases are: New Way Lumber Co. et al. v. Smith, 128 Tex. 173, 96 S.W.2d 282 (affirming Smith et al. v. New Way Lumber Co., Tex.Civ.App., 84 S.W.2d 1104) ; Anderson, Clayton & Co. et al. v. State ex rel. Allred, 122 Tex. 530, 62 S.W.2d 107; Anderson, Clayton & Co. et al. v. State ex rel. Allred, 125 Tex. 453, 82 S.W.2d 941 (reversing Tex.Civ.App., 68 S.W.2d 544). A study of Anderson, Clayton litigation properly begins with Anderson, Clayton & Co. et al. v. State ex rel. Allred, 122 Tex. 530, 62 S.W.2d 107. The suit began when the State filed its petition for injunction under authority of Art. 1690b, Sec. (c). The defendants filed a cross-action. The State then took a non-suit. In answering certified questions a Commission of Appeals, opinion adopted, held that where the State voluntarily invokes the jurisdiction of a court by submitting its rights for adjudication it will be bound thereby, and a defendant will be entitled to invoke the court’s jurisdiction to plead and prove a defense or a cross-action germane to the matter in controversy. No such situation is present in the instant case. The holding in the Anderson, Clayton case in 62 S.W.2d 107 is not applicable here. Following the answers to the certified questions, the Anderson, Clayton case was returned to the District Court where an instructed verdict was granted by the trial court. Judgment was affirmed by the Court of Civil Appeals. 68 S.W.2d 544. But the Supreme Court again reversed the case holding that a fact issue was presented for determination by a jury. Anderson, Clayton & Co. et al. v. State ex rel. Allred, 125 Tex. 453, 82 S.W.2d 941. These later appeals involve the same case and are but a continuation of the case involved in 62 S.W. 2d 107. Certainly jurisdiction having once been obtained, continued throughout successive appeals. Under the circumstances none of the appeals lends support to appellees’ contention. Neither do we think the holding in New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W .2d 282, lends support to appellees’ *658contention. In that case the statute was attacked as being unconstitutional and void. Appellees in the case now before us make no such allegation or claim in regard to the statute. Appellees in this case say in substance that if we accept their interpretation of a valid penal statute, they must be found not guilty of violating said statute. We think they should urge their defense in a criminal action, if the State files criminal proceedings against them, pursuant to Art. 1690b, §§ (a) and (b) Vernon’s Ann.P.C.; or in a civil action, if the State elects to file a suit for injunction pursuant to Art. 1690b, § (c), Vernon’s Ann.P.C. Appellees’ motion for rehearing is overruled.

2023-08-22 21:23:35.043398+00

Per Curiam

OPINION PER CURIAM. In this matter, Steven E. Ferrey, Esquire, a member in good standing of the Massachusetts bar, has moved for pro hac vice permission to provide legal services to a client in a continuing administrative proceeding before a state agency. He has done so pursuant to Article II, Rule 9 of our Supreme Court Rules. Based upon the contents of the affidavit filed as part of his motion, we grant that part of his motion seeking permission to practice before the Energy Facility Siting Board, effective as of the date of this opinion. We deny, however, that part of his motion seeking our permission, nunc pro tunc, to the date of his first appearance before that state agency, and we deem it advisable at this time to give our reasons for so doing. We begin by noting that this Court never before, in any published opinion or order, has granted a pro hac vice request nunc pro tunc when to do so “would be tantamount to affixing an ex post facto imprimatur of approval on what might under some circumstances be construed as the unauthorized practice of law[,]” a criminal offense prohibited by G.L.1956 § 11-27-5. In re Church, 111 R.I. 425, 427, 303 A.2d 758, 759 (1973). See also In re Olsen, 112 R.I. 673, 674, 314 A.2d 140, 141 (1974).1 Since 1917, § 11-27-5 has provided that: “No person, except a member of the bar of this state, whose authority as a member to practice law is in full force and effect, shall practice law in this state.” The practice of law is defined in § 11-27-2 as: “the doing of any act for another person usually done by attorneys at law in the course of their profession, and, without limiting this generality, includes: (1) The appearance or acting as the attorney, solicitor, or representative of another person before any court, referee, master, auditor, division, department, commission, hoard, judicial person, or body authorized or constituted by law to determine any question of law or fact or to exercise any judicial power, or the preparation of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the court or other body[.]” (Emphasis added.) Recognizing that circumstances might arise when a particular client might on *64“special and infrequent occasion and for good cause shown” require the assistance of an out-of-state attorney in a particular court proceeding in this state, this Court promulgated Rule 9 of Article II of our Supreme Court Rules concerning the admission of out-of-state counsel to practice law in this state. It is important for the bar, as well as the various state agencies, boards and commissions, to note that Rule 9 pertains only to the granting of pro hac vice permission by this Court for an out-of-state attorney to represent a client in a cause or appeal “in any court of this state.” There is nothing in Rule 9 that makes reference for admission pro hac vice of an out-of-state attorney to practice law here before any state or municipal board, agency or commission. That omission in Rule 9, however, does not deprive us of our unquestioned inherent right to permit an out-of-state attorney to do so upon a timely pro hac vice request by out-of-state counsel. In that regard, this Court recognizes full well that “ ‘[practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court.’ ” Rhode Island Bar Association v. Automobile Service Association, 55 R.I. 122, 134, 179 A. 139, 144 (1935). Consequently, because this Court has exclusive and ultimate authority to determine who may, and may not be permitted to practice law in this state, see Unauthorized Practice of Law Committee v. State, Department of Workers’ Compensation, 543 A.2d 662, 664 (R.I.1988), we may, on proper motion, permit pro hac vice approval to an out-of-state attorney to practice law in this state before a municipal or state agency, board or commission. However, that permission can come only from this Court and, absent such prior permission, an out-of-state lawyer is subject to the prescriptions of § 11-27-5, as set out above. We point out that § 11-27-6 also prohibits any out-of-state lawyer who practices law here without this Court’s prior pro hac vice permission from receiving “any pay or compensation, directly or indirectly * * * for any services of a legal nature * * * pertaining to any action or proceeding in any court or before any referee, master, auditor, commission, division, department, board, or other judicial person or body, or for the preparation of any legal instrument[.]” Section 11-27-14 provides criminal penalties, both misdemeanor and felony, for violations of the prohibitions contained in chapter 27 of title 11, and, § 11-27-19 imposes upon the Attorney General the duty to prosecute or to restrain and enjoin any such violations. Whether Ferrey’s past appearances before the Energy Facility Siting Board constitutes unauthorized practice of law in violation of chapter 27 of title 11 is not before us in this proceeding. Notwithstanding, the dissent suggests that § 11-27-13 might shield Ferrey from possible violation and prosecution. That suggestion, it must be noted, even if correct, overlooks the fact that § 11-27-13 does not extend to § 11-27-3, and thus, if Ferrey were to receive any fee for his services, he would then be in clear violation of chapter 27 of title 11 and subject to possible criminal prosecution, pursuant to § 11-27-19, or by private criminal complaint. Thus, it is abundantly clear that since 1917, chapter 27 of title 11 has made unlawful the practice of law in this state by any lawyer who is not a member of the Rhode Island bar and who has not been given prior pro hac vice permission to practice here, regardless of whether that attorney appears before any court or before any municipal or state agency, board *65or commission. This Supreme Court alone possesses sole authority to determine who may, and who may not, engage in the practice of law in this state. No municipal or state board, agency or commission shares in that authority, and none has ever been delegated by this Court to any municipal or state board, agency or commission. In the particular matter before us concerning Attorney Ferrey, his motion request for pro hac vice admission was made in the alternative; namely, he requested admission at this time, and/or that such admission be made nunc pro tunc because he had in fact been practicing law here in this state before the Energy Facility Siting Board in apparent violation of § 11-27-5. However, he had done so with the agency’s specific, but unauthorized, permission. Attorney Ferrey, like everyone else in this state, is presumed to know what the laws of this state permit and prohibit. However, as a nonresident who had been given permission, albeit unauthorized, to practice in this state, it is somewhat understandable that Attorney Ferrey might not have known that chapter 27 of title 11 of our General Laws prohibited his practice before the particular state agency when he initially appeared.2 That assumed absence of knowledge, coupled with the Energy Facility Siting Board’s previous permission for him to appear before it based upon its mistaken belief that it had been delegated authority to do so, prompted our decision to grant his pro hac vice request for permission to continue to represent his client in the continuing legal proceedings before that board. Our reason for declining his nunc pro tunc request is because, as noted earlier, “[t]o do so would be tantamount to affixing an ex post facto imprimatur of approval on what might under some circumstances be construed as the unauthorized practice of law” in violation of § 11-27-5. In re Church, 111 R.I. at 427, 303 A.2d at 759. See also In re Olsen, 112 R.I. at 674, 314 A.2d at 141. Thus, while Attorney Ferrey may be excused for not being aware of our state laws, this Court, on the other hand is presumed to know what § 11-27-5 prohibits, and we are duty bound to follow that law and not blindly ignore or condone past transgressions thereof.3 . The dissent attempts to shunt the reality of the cold fact that this Court has never in any previous published opinion or order ever granted a pro hac vice request nunc pro tunc by divergently suggesting that such lack of precedent tells us little or nothing about the Court’s past practice in this respect. It is for that very reason that a majority of this Court now issues this opinion and reiterates what it spoke of in both In re Church, 111 R.I. 425, 303 A.2d 758 (1973) and In re Olsen, 112 R.I. 673, 314 A.2d 140 (1974). . Attorney Feriy is a member of the Massachusetts Bar. We note here that the Supreme Judicial Court of Massachusetts previously has stated that: "[t]he judicial department of government, and no other, has power to license persons to practice law. Statutes may aid by providing machinery and criminal penalties, but may not extend the privilege of practis-ing law to persons not admitted to practice by the judicial department.” Lowell Bar Association v. Loeb, 315 Mass. 176, 52 N.E.2d 27, 30 (1943). . The concern expressed in the dissent about the lack of any rules governing a nonresident attorney’s right to practice before an "in state commission” is answered by G.L.1956 §§ 11-27-2 and 11-27-5 of our general laws. Because, as yet, there has been no formal adjudication by any court of a criminal violation of chapter 27 of title 11 on the part of Attorney Ferrey, a viable option to criminally prosecute pursuant to that statute still remains a consideration for the Unauthorized Practice of Law Committee; the Attorney General; or conceivably for a private complainant. For that reason alone, for this Court to have granted Attorney Ferrey’s nunc pro tunc permission request would have been "tantamount to affixing an ex post facto imprimatur of approval” and the sanctioning of what appears to have been the illegal practice of law here by an out-of-state attorney who is not a member of the Rhode Island Bar. In re Olsen, 112 R.I. at 674, 314 A.2d at 141.

2023-08-22 21:23:35.04891+00

Flanders

FLANDERS, Justice, concurring in part and dissenting in part. I concur in the Court’s decision to grant the motion for admission pro hac vice, but *66I would also do so nunc pro tunc, as requested. Given the limited scope of Article II, Rule 9 of the Supreme Court Rules (requiring court approval before a nonresident attorney may participate in the presentation of a cause or appeal in any court of this state) and the lack of any other rule with respect to the need for nonresident lawyers to obtain pro hac vice approval from this Court before they can provide legal services in connection with a client’s participation in an administrative proceeding in this state, I would grant the motion nunc pro tunc. Doing so would also serve to obviate the inevitable tactical attempts — apparently already begun — to undercut and vitiate everything that this attorney participated in during the Energy Facility Siting Board proceedings before the Court approved the attorney’s pro hac vice motion. Here, the nonresident attorney sought and obtained approval from the Energy Facility Siting Board to appear before it on behalf of a client — apparently following that agency’s practice and his own good faith belief that the agency possessed the delegated power to grant such approval. As the Court implicitly concedes in granting this attorney’s pro hac vice motion, good cause has been shown why he should obtain pro hac vice admission. Thus, because we are not faced with an attorney who is guilty of any bad faith or other willful misconduct, I would grant the motion nunc pro tunc, retroactive to the date that Attorney Ferrey first began to do legal work on his client’s behalf in connection with the administrative proceeding in question, and thereby stave off any attempts to invalidate or undo whatever occurred there before this Court granted the requested approval. I also believe that pro hac vice admission for nonresident lawyers should be addressed via a rulemaking procedure, rather than, as now, by miscellaneous petitions submitted to this Court. If the Court ■wishes to establish a pro hac vice approval procedure for nonresident lawyers who propose to provide transactional legal services to clients located in this state or who seek to represent or to provide legal services to an administrative agency in this state or who wish to provide legal services to a client in connection with that client’s appearance before such an agency, then it should promulgate a rule to that effect, similar to Rule 9, upon advance notice and hearing to all interested parties and after allowing for an appropriate period of public comment about any such proposed rule. Otherwise, by selectively granting and denying these pro hac vice requests on a case-by-case basis we are roiling the waters of the bar unnecessarily, only to reap a tidal wave of confusion and fear in response. With no rule to alert practitioners and parties to this requirement, no articulated standards for how we evaluate these motions, and no clear test for what triggers the need to obtain this Court’s approval in the first place — or for why in one case we might grant such approval retroactively, in another case we might do so prospectively but not retroactively, and, in yet another, we might deny it altogether— we are creating a trap for the unwary and engendering expensive and unnecessary collateral litigation concerning the validity of any actions taken in this state by nonresident attorneys and their clients.4 I *67would have hoped that the Court would seek to avoid such a course until and unless, with the help of the bar and other interested parties, we promulgate an appropriate rule to address multijurisdictional practice and the multifarious situations that might trigger the need for some type of pro hac vice approval process. Moreover, the statutory provisions barring the unauthorized practice of law in this state by persons who are not admitted to the Rhode Island bar, G.L.1956 §§ 11-27-1,11-27-2, and §§ 11-27-5 through 11-27-14, do not appear to apply to “visiting attorneys at law, authorized to practice law before the courts of record in another state, while temporarily in this state on legal business * * Section 11-27-13. This statute appears on its face to immunize nonresident attorneys from compliance with Rhode Island’s unauthorized practice of law statutes — as long as such attorneys are admitted to practice in another state and are present in this state “while temporarily * * * on legal business.” Id. Note that the “legal business” that the statute permits is not restricted to legal business that originates from non-Rhode Island clients. Id. Rather, as long as the nonresident attorney is visiting this state “while temporarily * * * on legal business”— even on legal business obtained from Rhode Island clients — he or she would not appear to be engaging in the unauthorized practice of law. Id. Thus, even though the regular, continuous, or permanent practice of law in this state by nonresident attorneys would be unlawful without obtaining admission to the Rhode Island bar, legal business that is performed “while temporarily in this state” by nonresident attorneys is arguably permissible. Id. Here, Ferre/s legal representation of a client before the Energy Facility Siting Board appears to have occurred only “while [he was] temporarily in this state on legal business.” Id. The record does not suggest that he regularly has practiced law here. Thus, I do not share the majority’s belief that granting nunc pro tunc permission to Ferrey “would have been ‘tantamount to affixing an ex post facto imprimatur of approval’ and the sanctioning of what appears to have been the illegal practice of law here by an out-of-state attorney who is not a member of the Rhode Island bar.” On the contrary, Ferrey appears to have been a visiting, nonresident attorney at law who was authorized to practice law before the courts of Massachusetts and who has conducted legal business here “while temporarily in this state” to represent a client before the Energy Facility Siting Board. As such, he would appear to be exempt from the unauthorized practice of law provisions cited by the majority. Finally, § 11-27-3 (“Receipt of fees as practice of law”) has no application to a visiting nonresident attorney who is “temporarily in this state on legal business” under § 11-27-13. Section 11-27-3 provides that “[a]ny person, partnership, corporation, or association that receives any fee or any part of a fee for the services performed by an attorney at law shall be deemed to be practicing law contrary to the provisions of this chapter.” The “person” referenced in § 11-27-3, however, cannot possibly refer to the attorney rendering the legal services because that would lead to the absurd result that no attorney (whether a member of the Rhode Island bar or not) could receive a fee for *68the services he or she performed. Rather, § 11-27-3 is not triggered at all until such time as a third party assignee of a fee owed to an attorney actually receives a portion of the attorney’s fee. See Pearlman v. Rowell, 121 R.I. 466, 401 A.2d 19, 20 (1979). Thus, I respectfully disagree with the majority’s suggestion that § 11—27-3 bars Ferrey from receiving an attorney’s fee for his legal work as a visiting lawyer. Hence, I would have granted the pro hoc vice request nunc pro tunc. . Most motions to this Court requesting admission pro hac vice are resolved by unpublished orders that typically grant the motion with little or no discussion of the reasons for doing so. Thus, the mere fact that the Court has not issued a published opinion or order granting a pro hac vice request nunc pro tunc provides cold comfort to the majority's position on this issue because it tells us little or nothing about the Court's past practice in this *67respect. And given this Court's rale prohibiting both the Court and counsel from citing to the Court’s unpublished orders, see Article I, Rule 16(h) of the Supreme Court Rules of Appellate Procedure, no one can draw any inferences whatsoever about the Court’s past practice in this regard merely by pointing to the absence of any published opinions and orders on this subject.

2023-08-22 21:23:35.707095+00

Woodley

WOODLEY, Judge. The indictment drawn under Art. 489c V.A.P.C. alleged that appellant, on or about August 1.1, 1958, had in his possession away from the premises upon which he resided, a pistol, he having been convicted on January 21, 1953, in Cause No. 52394 in Criminal District Court of Tarrant County, Texas, of burglary and served a term in the penitentiary under said conviction. For enhancement of punishment, the indictment alleged a prior conviction in 1954 for felony theft and also alleged the same burglary conviction alleged in charging the primary offense. *488The jury found appellant guilty as charged in the indictment. The court’s charge did not submit the question of punishment, nor was the jury called upon to make any findings concerning the conviction of appellant alleged for enhancement. Judgment was rendered adjudging appellant guilty of the primary offense “and having theretofore been convicted of two (2) separate felonies less than capital, as charged in the indictment, and that he be punished by confinement in the penitentiary for life.” Art. 489c V.A.P.C. reads in part: “Sec. 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person.” “Sec. 2. Anyone violating any of the provisions of this Act shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one (1) nor more than five (5) years.” “Sec. 4. The penal provisions of this Act shall not apply to any person commissioned as a peace officer, employed as a guard or watchman nor to any person who has not been convicted of a penal offense during the five-year period next immediately following his discharge or release from the penitentiary.” Art. 489c V.A.C.C.P. is a special statute which, as an element of the offense, requires proof of a prior conviction for burglary, robbery or a felony involving an act of violence with a firearm, and proof that the person so convicted after serving a term in the penitentiary and being released, had in his possession away from the premises upon which he lived, a pistol, revolver or other firearm capable of being concealed upon the person. Section 4 attempts to limit the time within which a person *489may be convicted for such offense to the period of five years following his release from prison. The indictment alleged that appellant had been convicted of burglary on January 21, 1953, in Cause No. 52394, in Criminal District Court of Tarrant County. The same conviction for burglary was pleaded for enhancement of punishment under Art. 63 P.C. Having been alleged as an element of the offense charged in order to secure the punishment provided in Art. 489c V.A. P.C., it was not available and could not be used to further enhance the punishment under Art. 63 P.C. The judgment is reversed and the cause remanded.

2023-08-22 21:23:35.71105+00

Davidson

DAVIDSON, Judge, (concurring in part and dissenting in part) I concur in the reveral of this case for the reasons stated by the court, but I do not agree that a case of guilt is made under the statute by proof, merely, that a convict is found in possession of a pistol away from the premises where he lives, within five years from his discharge from the penitentiary— which the court holds to be the proper construction to be given to the statute. Such holding gives no effect to that provision of Sec. 4 of Art. 489c. Vernon’s P. C., which says that: “The penal provisions of this Act shall not apply to any person * * * who has not been convicted of a penal offense during the five-year period next immediately following his discharge or release from the penitentiary.” Such exemption, written as a double negative, has the positive meaning and must be given the construction that no convict may be convicted under the act for carrying a pistol unless he has been convicted of a penal offense within five years following his discharge from the penitentiary. It is clear, then, that to sustain a conviction under the statute the state must prove: (a) the prior conviction for a felony, (b) the discharge of the convict after serving his sentence, (c) his conviction for a penal offense during the five-*490year period following his discharge, and (d) thereafter and within the five-year period after his discharge the convict had in his possession a pistol, away from the premises upon which he lived. There must be two prior convictions proven: one for the felony and the other for any penal offense, misdemeanor or felony, following discharge from the penitentiary. Such are the requirements the legislature has written into the statute, and the courts have no right to rewrite, amend, or change that statute or to authorize a conviction upon facts fewer than those reqiured under the statute.

2023-08-22 21:23:35.71475+00

Morrison

ON STATE’S motion for rehearing MORRISON, Presiding Judge. Edwards v. State, 166 Tex. Cr. Rep. 301, 313 S. W. 2d 618; Parasco v. State, 165 Tex. Cr. Rep. 547, 309 S. W. 2d 465; Granado v. State, 168 Tex. Cr. Rep. 525, 329 S. W. 2d 864, and Fletcher v. State, No. 31,563, (page 506 this volume) 335 S. W. 2d 613, support the holding in our original opinion that a prior conviction is not available to enhance punishment for an offense of which it is an essential element. We are not to be understood as holding that in prosecutions under Article 489c, V.A.P.C., the state is precluded from using felony convictions other than the one alleged as an element of the offense to secure an enhancement of punishment under Article 63, V.A.P.C. The state’s motion for rehearing is overruled.

2023-08-22 21:23:38.145849+00

Griffin

MR. Justice Griffin delivered the opinion of the Court. This is a suit by respondent, Hard, against petitioners, Hall, et al to recover a commission. The parties will be referred to as they were in the trial court. Hard, as plaintiff, alleged that by an oral contract defendant, Hall “employed plaintiff to attempt to find a buyer for the certificates, properties and other assets owned by said defendants;” that defendant, Hall, agreed to pay plaintiff a 5% commission if he would procure a buyer, ready, willing and able “to purchase these properties upon terms satisfactory to defendants.” Plaintiff alleged that he procured a buyer, to wit, J. B. Braswell and Braswell Motor Freight Lines who entered into a formal contract to purchase the “Hall properties” for the sum of $1,500,-000; that this purchase was consummated after securing the necessary approval from the Interstate Commerce Commission. Plaintiff alleged that he was the one who interested Braswell *568in “the Hall properties” while his' employment by Hall was in full force and. effect and that the “Hall properties”" were sold to Braswell; therefore,, plaintiff alleged, he was entitled to a 5% commission, namely $75,000, on the sale price of $1,500,000 paid by Braswell to defendant for such properties. Plaintiff further alleged that he had demanded payment from Hall and Hall had refused to pay him, whereupon he filed suit for recovery of the $75,000 commission and $15,000 attorney’s fees. Hall answered with a general denial. The case was tried to a jury. The trial court submitted three special issues, to which the jury answered (1) that Hall agreed to pay Hard a 5% commission if Hard would procure a buyer of the Hall Motor Freight properties on terms satisfactory to Hall; (2) Hard procured such a buyer and (3) $10,000 was a reasonable attorney’s fee. There were no objections nor exceptions to the court’s charge by either party.. Plaintiff filed a motion for judgment on the verdict. Defendant filed a motion for judgment non obstante veredicto. Among the grounds urged by defendants was that the sale of the Hall properties involved the sale of real estate, and plaintiff had not pleaded and proven that he was a licensed dealer, under the Real Estate Dealers License Act (Art. 6573a, Vernon’s Annotated Texas Civil Statutes) as required bv Section 19 of such Act. Defendants also alleged that the sale of the Hall Motor Freight Line pronerties included the sale to Bras-well of capital stock in some of the cornorations owned by Hall; that plaintiff was not a licensed dealer in securities required by Art. 581-34, V.A.C.S., as a condition precedent to a recovery of a commission on the sale of capital stock. The trial court sustained the defendants’ motion for judgment non obstante veredicto and overruled plaintiff’s motion for judgment on the verdict. On appeal the Court of Civil Appeals reversed the trial court’s judgment and rendered iudement for plaintiff against defendants for $75,000, plus $10,000 attorney’s fees. 318 S.W. 2d 108. We hold that the Court of Civil Anneals was in error in its judgment. We shall first dispose of defendant’s claim that he was entitled to a judgment because plaintiff had no real estate dealer’s license. Section 4 of Art. 6573a defines a real estate broker as “any *569person who, for another or others and for compensation or with the intention or in the expectation or upon the promise of receiving or collecting compensation: (a) sells, exchanges, purchases, rents or leases real estate; or (j) procures or assists in procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate.” At the time of plaintiff’s employment by defendant to procure a purchaser ready, willing and able to buy the Hall properties, and at all times until the closing of the sale contract, Hall owned and used in his trucking business leases for longer than one year on terminal facilities, including real estate located in Jackson, Mississippi; Tulsa and Oklahoma City, Oklahoma; Dallas, Texas; and Monroe, Ouachita Parish, Louisiana. This latter lease had a provision whereby defendants had an option to purchase the leased property after ten years. All parties are agreed that it was necessary to the operation of a motor freight line that it have terminals in the principal cities served by it. The contract for the sale of the Hall properties, as submitted to and approved by the Interstate Commerce Commission, shows that Braswell had no terminals in Jackson, Mississippi; Monroe, Louisiana; or Tulsa and Oklahoma City, Oklahoma. Nowhere in plaintiff’s pleadings did he make any allegations that the leases were not included in the Hall properties, nor did he allege that his listing contract was one other than for the sale of the whole of the Hall properties. The sale contract required the purchaser to “assume the leases of all those freight terminals where the leases are assignable, which are now under lease to Hall or Transport [Hall Transport Co., a corporation], true copies of said assignable leases being attached hereto, marked Exhibit J.” Braswell further covenanted to save and hold Hall and Transport harmless in respect of such lease assumptions. Plaintiff argues that this provision binds only Braswell, but does not bind Hall to assign or transfer the leases on the terminals. A reading of the whole of the contract, however, shows that defendants were obligated to transfer and assign the leases. The contract further provides that it “is not severable and shall, as to each party, and as to all things required of each, be performable in its entirety.” Plaintiff, Hard, testified that at the time of the oral contract between him and Hall, the leases were not mentioned by name. He testified that Hall wanted to sell his trucking operations; that Hall told him that if he could secure a buyer for the operations that he (Hall) would consider selling; that his conversation with Hall agreeing to pay a commission was a contract for the sale of the Hall trucking properties; that he" was to sell for Hall everything in connection with the Motor Freight Lines; that nothing was said by either party that the leases were to be ex-*570eluded but that the sale was to include everything' that had anything to do with the trucking operations; that he and Mr. Hall were talking about selling the Motor Freight Lines. On being questioned about his trade with Hall to pay the commission, Hard testified: “Q. Now among the other assets owned by those companies were leases on terminals in Oklahoma and Louisiana. Did you, when you negotiated your trade,1 did you expect to leave out those leases? “A. Everything that was involved in the Motor Freight Line. “Q. Now they were the leases on the terminals. You know terminals are necessary for the operation of motor freight lines, did you? “A. That’s right. “Q. All right. Did you expect to leave out those leases? “A. Not the ones Mr. Hall had, no. I expected Joe Bras-well to take them over, which would be natural.” In answer to the question, “what was it that you claim Mr. Hall employed you to do ?” Hard testified “sell the operation, the Hall trucking operations,” and again, “I intended to sell the whole thing in one lump sum.” All of the above testimony made a prima facie case that the leases on the terminals were included in the “Hall properties” which Hall employed Hard to sell. However, plaintiff Hard testified that he had nothing to do with the leases; that the price at which defendant Hall listed the properties for sale included only the Interstate Commerce Commission certificates under which defendant operated his truck line, and the furniture and equipment used in the business; that all that went with the properties was the certificates, furniture and equipment; and denied that his contract of employment covered the sale of the leases. This being the state of the record a fact issue was raised as to whether the leases were included in the Hall properties. No issue was submitted to the jury, nor was any request made for *571the submission of an issue determining the above fact. Plaintiff contends that the burden was on defendant to secure a finding that the Hall properties did include the leases. Defendant claims the burden was on plaintiff to secure a finding that the leases were not included in the Hall properties. If the Hall properties, which Hard testified he was employed by Hall to sell, consisted, in part, of the leases on the terminals above set out, then Hard is seeking to recover a commission on the sale of real estate. Under the provisions of Sec. 19 of Art. 6573a, it was the burden of Hard to plead and prove he was a duly licensed real estate broker, or salesman, at the time the alleged cause of action arose. The leases being for a term of longer than one year were “real estate” within the terms of Art. 6537a. Stroble v. Tearl, 1949, 148 Texas 146, 221 S.W. 2d 556, 558; Robertson v. Scott, 1943, 141 Texas 374, 172 S.W. 2d 478, 479 (2) ; 20-A Texas Jur. 374, Sec. 104. 1,2 The Real Estate Dealers License Act is an exercise of the police power of the State to regulate a private business which affects the public interest. As such the business may be reasonably regulated by the State. Gregory v. Roedenbeck, 1943, 141 Texas 543, 174 S.W. 2d 585(1). The Legislature has seen fit to regulate the business of real estate dealers by requiring that anyone engaging in that business undergo investigation and examination by representatives of the State, and secure a license from the Texas Real Estate Commission. The business practices of the real estate dealers are regulated and certain practices are prohibited. The manner and method of conducting the business is prescribed in certain matters. It is made a criminal offense to engage in the business of real estate broker, or salesman, without having procured the license as aforesaid. In addition, Sec. 19 denies the use of the courts of our State to a real estate broker for the recovery of his commission unless such broker seeking recovery alleeres in his pleadings and proves by the evidence introduced in the case that he was a duly licensed real estate broker, or salesman, at the time the alleged cause of action arose. The Legislature, having required such pleading and proof by the broker suing for his commission, we hold that when a fact issue is raised as to whether or not the properties sold by the broker included any real estate, the burden is upon the dealer or broker to secure findings that no real estate was included, and, therefore, he was not subiect to the Real Estate Dealers License Act. Unless he does so, he cannot recover his commission. To hold otherwise would be to disregard the intent of the Legislature in its regulations and provisions contained in the Act. *5723 Our courts have required a strict compliance with the terms of the Real Estate Dealers License Act if a broker is to use the courts for recovery of his fees or charges for his services. In the case at bar it is undisputed that plaintiff was not a licensed real estate broker. On this phase of the case, therefore, he can only recover by showing that he was not employed to sell any real estate. If there is an issue as to whether or not his employment included the sale of any real estate, then he must secure findings that will relieve him of the requirements of the Act. If only the sale of personal property is involved, the broker is not under the terms of the Act. 4 Plaintiff has no pleading alleging severability of the Hall properties, nor of his employment to sell only a portion of the same. There was one consideration covering the sale of all of the Hall properties in the contract of sale, and although there were certain itemizations in the purchase agreement, the contract specifically stated it was not a divisible contract. We hold that the contract of employment was an entire and indivisible one. Stroble v. Tearl, supra, p. 559(2), and authorities there cited. The reasoning in the cases of Clark v. Eads, Texas Civ. App., 1942, 165 S.W. 2d 1019, wr. ref., w.o.m.; Swift v. Kelly, Texas Civ. App., 1910, 133 S.W. 901, no writ history; and Paine v. Eckhardt, et al., Texas Civ. App., 1918, 203 S.W. 459, no writ history, while not directly in point, support our holding that the burden was on Hard to secure a finding that no real estate was included in the Hall properties which he was employed to sell. 5 Plaintiff contends that even though the sale of the Hall Motor Freight properties did involve real estate, and was governed by Art. 6573a, he is exempt from the provisions requiring him to plead and prove he had a real estate dealer’s license by virtue of Sec. 6(1) of the Act. This section reads as follows: “The provisions of this Act shall not apply to the advertising, negotiation or consummation of any purchase, sale, rental or exchange' of, or the borrowing or lending of money on, real estate by any person, firm, or corporation when such person, firm or corporation does not engage in the activities of a Real Estate Broker as an occupation, business or profession on a full or part time basis. Plaintiff did not plead nor prove that he came within the terms of Section 6(1). In fact, that contention was never urged by the plaintiff except in this court. We do not find it necessary to construe the meaning of Section 6(1) for the *573reason that under this record plaintiff is not entitled to the benefit of Section 6(1). In 130 A.L.R., p. 440, et seq., is found a thorough and learned discussion of the burden of allegation and proof in a cause of action, or a defense thereto, in a case where the principal enacting clause of a statute is subsequently modified in some way by another clause, phrases, section, subdivision, etc. The rule of law governing such cases is set out in Annotation II, a,2, p. 443, as follows: “Where an exception appears in a different section, subdivision, or clause from that containing the enacting words of a statute, or appears in another statute, the view is taken in many cases that the party relying upon the statute need not allege facts showing that the present case does not come within the exception such allegations being matter to be pleaded by the opposite party.” With regard to the proof, this same authority on p. 479, quotes from Interstate Commerce Commission v. Baird (1904), 194 U.S. 25, 26, 37; 48 L. Ed. 860, 865, 866; 24 S. Ct. 563, as follows: “ ‘The general rule of law is that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it, etc.’ Ryan v. Carter (1876) 93 U. S. 78, 83, 23 L. Ed. 807, 809; United States v. Dickson (1841) 15 Pet. (U.S.) 141, 165, 10 L. ed. 689, 698. The rule applied to construction is applied equally to the burden of proof in a case like this.” Plaintiff seeks the benefits of the exemption provided in Section 6(1). The burden of alleging and proving that he was exempt under the terms of this section was upon him. Lane v. Bell, 1909, 53 Texas Civ. App. 213, 115 S.W. 918, wr. ref. 6 Since a fact issue was raised by the evidence as to whether or not Hard’s employment contract included the sale of real estate, the trial court was in error in rendering the judgment non obstante veredicto. There was no issue submitted to the jury, and, of course, no finding by the jury as to whether or not plaintiff, Hard’s contract included real estate. The trial court having erroneously rendered judgment non obstante veredicto, there can be no presumptive finding by the trial court on the omitted issue in order to support the judgment rendered by the trial court. Rodriguez v. Higginbotham-Bailey-Logan Co., 1942, 138 Texas 476, 160 S.W. 2d 234; Williams v. Texas Emp. Ins. Ass’n., Texas Civ. App., 1939, 135 S.W. 2d 262, wr. ref. Plaintiff’s cause of action was based upon one ground of *574recovery, to wit: the contract to pay him a commission for procuring a purchaser for the Hall properties. One of the elements of this ground of recovery, under the facts as they developed upon the trial, was whether or not the terminal leases were a part of such Hall properties. This question presents a fact issue. There being no request for a jury issue on this question, and therefore no jury finding, it was for the trial court to make a finding on this issue, upon proper request. Rule 279, Franki’s Vernon’s Annotated Rules of Civil Procedure. This court has no power to make findings of fact, but the trial court does possess such power. Defendant contends that the Hall properties which were sold consisted, in part, of capital stock of a corporation or corporations. While there is evidence in the record supporting such a finding, the plaintiff denied that he was employed to sell any securities, i.e., capital stock of corporation. Plaintiff testified that he was employed to sell only the certificates of necessity and convenience owned by Hall and the equipment used in the operation of the Motor Freight Line operations. Art. 581-34 provides, in part, that “no person or company shall bring or maintain any action in the courts of this state for collection of a commission for services rendered in the sale or purchase of securities * * * without alleging and proving that such person or company was duly licensed under the provisions hereof * * It is undisputed that plaintiff was not licensed under the Securities Act. The record in this case raised a fact issue as to whether or not the sale of the Hall properties consisted in part of the sale of securities as defined in the Securities Act. No issue was submitted nor requested on which a finding could have been made by the jury on this question. What we have said above in regard to the Real Estate Dealers Act, the necessity for a license, and the burden of proof upon the unsubmitted issue applies with equal force to this phase of the case at bar. The trial court should also make a finding as to this issue, upon proper request. Based upon the trial court’s findings upon this issue, and upon the issue as to real estate being involved in the sale of the Hall properties, the Court will enter its judgment. We therefore must remand the cause to the trial court with instructions to proceed with the disposition of the cause under Rule 279 just as though no judgment non obstante veredicto had been entered. Rodriguez v. Higginbotham-Bailey-Logan Co., *575Texas Civ. App., 1943, 172 S.W. 2d 991, wr. ref.; Id., 138 Texas 476, 160 S.W. 2d 234. The judgment of the Court of Civil Appeals is reversed and this cause is remanded to the trial court for further proceedings in accordance with this opinion. Opinion delivered February 17, 1960. Associate Justice Culver not sitting.

2023-08-22 21:23:52.542902+00

On Motion for Rehearing. Appellant urges that we were in error in our original opinion in stating that the judgment of the trial court shows on its face that appellant did appear and participate in the trial, and particularly urges that we erred in holding that the recitals in the judgment cannot be impeached. Appellant contends that the statement of facts shows that a complete trial was, had on April 29, 1959, and that the hearing had on May 18, 1959, was an attempted further hearing in a case that was closed. We do not agree with that contention. The statement of facts is in two volumes. The first, containing twenty-three pages, covers the evidence introduced on April 29, 1959; and the second, containing eighteen pages, covers the hearing had on May 18, 1959. It is duly certified and approved by the court, and shows on its face that the case “came on for additional hearing after recess on April 29, 1959,” before the court. The record also shows that although appellant’s counsel knew that the further hearing would be had on said date, he failed to appear. All the evidence heard at the first hearing was introduced by appellant. Therefore, the record in no way contradicts the recitals in the judgment. If there be any doubt that appellant had notice that the case was not closed on April 29, 1959, but recessed for further hearing until May 18, 1959, the affidavits of the trial court, and Smith and Nye, counsel for appellees, so state. Appellant’s motion for rehearing is overruled.

2023-08-22 21:23:53.6974+00

Renfro

*649RENFRO, Justice. This is an appeal by defendant from a total and permanent disability judgment. The controlling question is whether the court erred in denying defendant’s motion for continuance after plaintiff filed a trial amendment. Plaintiff went to trial on the following plea: “Plaintiff, while working for said employer, West Texas Rendering Plant, on or about December 22, 1958, was loading a truck with barrels of manure and was pulling a barrel over to roll it when his feet slipped and he fell backwards onto another barrel which had a large meat hook inserted or hanging on it. The meat hook was driven through the Plaintiff’s back on the left side at an angle under his shoulder blade, penetrating his chest cavity and causing severe damage to the muscles, ligaments and tendons and to the vertebrae in his spinal column, resulting in a herniation of the disc spaces between Lumbar 2 and 3, fracturing the 8th, 9th and 10th ribs, which has caused damage to the lungs. That all of said injuries have affected his entire nervous system and resulted in total and permanent disability, as those terms are defined under the Workman’s Compensation Act of the State of Texas.” Defendant answered that any disability sustained by plaintiff was partial and temporary, and that any disability plaintiff “may have is due to prior compensable injuries and/or a combination of prior com-pensable injuries and diseases or infections in his body not connected with the accidental injury alleged by him * * * and is solely due to prior diseases and conditions in his body totally disassociated with and not contributed to by the accidental injury.” The plaintiff and six lay witnesses testified as to plaintiff’s injury and physical condition as of the time of trial. No mention had been made of arthritis' at the time plaintiff rested. Defendant introduced as its first witness Dr. Morrison, who, on direct examination, testified that x-rays showed that plaintiff had a degenerative type arthritis of his spine, but that it was not due to the injury. On cross-examination Dr. Morrison was asked, “Now, then, is it not correct * * * that trauma or a blow or injury to the back will aggravate or accelerate arthritis ?” Defendant objected to the question because aggravation was not pleaded, whereupon the plaintiff, with permission of the court, filed this trial amendment: “Comes Now the Plaintiff, and with leave of Court would file this, his trial amendment to the Plaintiff’s Original Petition on file herein, and after the testimony of Dr. Cameron Morrison, in which he alleges that the plaintiff had a pre-existing arthritic condition of his back, and would ask that the Court, in addition to the other allegations of injury contained in Plaintiff’s original petition, he allow the plaintiff to add that, should the plaintiff, Willie Milli-gan, have had any pre-existing arthritis or other conditions of his back, that the same in no way incapacitated him prior to the accident in question, and that if he is suffering any incapacity at this time due to arthritis, such incapacity was produced or caused by an aggravation or acceleration of any pre-existing arthritic condition in the plaintiff’s back.” Defendant objected to the trial amendment on the ground of surprise, asked permission to withdraw its announcement of ready and moved for continuance. Defendant’s objection and motion were overruled and plaintiff elicited from Dr. Morrison, over defendant’s objection, testimony that trauma might accelerate an arthritic condition. After defendant rested, plaintiff called Dr. Hargrove, who testified, in substance, that the injury aggravated plaintiff’s arthritis, and that plaintiff was permanently and totally disabled. The jury found that plaintiff was totally and permanently incapacitated as a result *650of the injury, and that his incapacity was not solely the result of a condition in his back wholly disassociated from the injury. Rule 66, Texas Rules of Civil Procedure, gives the trial court wide discretion in determining whether a trial amendment should be allowed. He should, under the rule, allow such amendment when the ob-pecting party fails to satisfy the court that a trial amendment would prejudice him in maintaining his action or defense upon the merits. The rule also provides that the court may grant a postponement in event a trial amendment is filed. The original pleadings of plaintiff plead damage to the vertebrae. The defendant did not except to the pleadings as insufficient. The testimony of plaintiff and his witnesses, introduced before plaintiff rested, was sufficient to have upheld a finding of total and permanent disability. The controlling issue in all compensation cases is whether claimant received an accidental injury in the course of his employment and whether such injury resulted in incapacity. Gulf Casualty Co. v. Tucker, Tex.Civ.App., 201 S.W.2d 81. At the time plaintiff rested he had met that issue. In Commerce Realty Co. v. McElvey, Tex.Civ.App., 250 S.W.2d 931, 934, a trial amendment was allowed which set up aggravation of Buerger’s disease by trauma. The court of civil appeals held: “Plaintiff's original petition alleged that she sustained severe and serious injuries to her right foot and leg. The defendant answered by a general denial only and sought no fuller pleadings of the injuries. In that state of the record, the evidence relating to the Buerger’s disease was proper without any trial amendment at all.” In the instant case, plaintiff made out a prima facie case of total and permanent incapacity without any evidence of arthritis. It was only after plaintiff rested and defendant introduced evidence that plaintiff had arthritis and that such arthritis had no connection with the original injury that plaintiff sought to show that if plaintiff did have arthritis it was aggravated by the injury. Defendant plead surprise at such testimony. Defendant had already offered evidence, however, to show that plaintiff had arthritis and that arthritis had no relation to the injury. In the face of that evidence we cannot say that the trial amendment, and the testimony offered thereunder, was such as was reasonably calculated to work an injustice upon the defendant. Under the record we cannot say the trial court abused his discretion in overruling the motion for continuance. Defendant contends that under the decir sion of the court in Texas Employers’ Ins. Ass’n v. Dillingham, Tex.Civ.App., 262 S.W.2d 748, 753, this case must be reversed. In the instant case the plaintiff, as previously stated, introduced sufficient evidence, before he rested, to support recovery without the jury having to take into consideration the subsequent testimony concerning arthritis. In the Dillingham case the plaintiff introduced the question of arthritis while introducing his opening evidence. In fact in his opening testimony he proved that prior to his injury he was suffering from arthritis and that the injury aggravated the arthritis. In the instant case the question of arthritis was introduced by the defendant. We said in the Dillingham case: “Had the proffered amendment not involved the new issue of aggravation of arthritis by the alleged injury as an additional premise of recovery, or had the conditions been such that its admission did not work an injustice upon the appellant, the trial court, in its sound discretion, perhaps could have admitted the amendment without occasioning any error.” (Emphasis added.) In our opinion, in the instant case the record does not reflect that injustice was done defendant by the action taken. In the Dillingham case the trial amendment was not offered until after both sides had rested; the defendant did not know that such amendment would be *651offered, and of course knew that no issue could be submitted on aggravation without supporting pleadings. In the instant case the trial amendment was offered while defendant’s first witness was on the stand, and immediately after defendant had presented the first evidence concerning arthritis. While some of the dictum in the Dillingham case is inconsistent with our opinion herein, the cases are readily distinguishable on the facts, and our affirmance of the instant case does no violence to the ultimate decision in the Dillingham case. In view of the entire record we think the defendant has not shown abuse of discretion on the part of the trial court. Defendant also contends the court erred in denying its motion to require plaintiff to submit to a medical examination with reference to the complaints alleged in the trial amendment. Plaintiff had been examined by Dr. Parsons, defendant’s witness, ten days prior to the date of trial. While Dr. Parsons at the time he examined plaintiff may not have known of the arthritic condition of plaintiff’s back, defendant did know of such condition at that time. In United Employers Casualty Co. v. Curry, Tex.Civ.App., 152 S.W.2d 862, 864, it was held: “The courts of this state have uniformly held that a court’s ruling on a motion to require a party to submit to a physical examination will not be reviewed except to determine whether there has been an abuse of discretion on the part of the court, (Casualty Reciprocal Exchange v. Stephens, Tex.Com.App., 45 S.W.2d 143; United States Fidelity & Guaranty Co. v. Nettles, Tex.Com.App., 35 S.W. 2d 1045; Texas Employers Ins. Ass’n v. Arnold, Tex.Civ.App., 105 S.W.2d 686), and that the burden of showing that the court has abused its discretion in refusing to grant a motion for a physical examination rests upon.the appellant. Continental Paper Bag Co. v. Bosworth, Tex.Com.App., 269 S.W. 83; Lipscomb v. Perry, 100 Tex. 122, 96 S.W. 1069; Bear v. H. & T. C. Ry. Co., Tex.Civ.App., 265 S.W. 246.” In our opinion defendant did not show abuse of discretion on the part of the court in denying further examination of plaintiff. The judgment is affirmed.

2023-08-22 21:23:53.701507+00

Massey

MASSEY, Chief Justice. I respectfully dissent. The author of the majority opinion and I agree that the specific disagreement which exists lies in my belief that under the law it is conclusively presumed that the defendant insurance company was “surprised” by the allowance of the plaintiff’s trial amendment, while he is of the opinion that whether said defendant was “surprised” was a matter for determination by the trial court under all the circumstances of the case. It would seem to me that even if I am wrong in my opinion as to “surprise” being conclusively presumed, certainly it would be presumed in behalf of the insurance company with the burden cast upon the plaintiff to demonstrate that said defendant was not “surprised”. This has not been demonstrated. It is to be borne in mind that the “surprise” in question was not the testimony (for I am of the opinion that with the injection of arthritis into the case by the defendant insurance company all the testimony introduced by the plaintiff was admissible) — but that the “surprise” lay in the broadening of the basis of the allegations in plaintiff’s pleadings, thus enlarging his cause of action. The paragraph in the Dillingham case which is referred to in the majority opinion as dictum inconsistent with the holding reads as follows, 262 S.W.2d 752: “It is not necessarily the existence of facts which make an issue of fact between parties in litigation, but it is the allegation in pleadings of facts as a ground or basis of relief which make the issue. In the case at hand there is no doubt but what the appellant knew that the appellee had arthritis. The appellant could even have premised its defense to the cause of action *652originally alleged for Workmen’s Compensation benefits upon which he went to trial upon the fact that the appellee had preexisting arthritis and that that condition and not appellee’s injury was the cause of his disability. Indeed, findings of arthritis as the cause of disability under such a condition of the pleadings would have required a denial of recovery by the judgment, and even in such a case the allowance of a trial amendment which would allege aggravation of the preexisting arthritic condition — thus becoming a refutation of the defense made, would not be permitted because it would constitute an alteration of ap-pellee’s cause of action.” In the instant case, under the state of the pleadings as they existed at the time the case was submitted to the jury in special issues, the trial court properly defined the term “injury” as follows: “You are instructed that the term ‘injury’ as used in this charge, shall be considered to mean damage or harm to the physical structure of the body and such diseases and infections as naturally result therefrom, or the acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.” (Emphasis supplied.) But for the trial court’s allowance of the trial amendment the definition of “injury” would stop with the comma immediately preceding the emphasized clause upon aggravation, for it is the definition given in the Workmen’s Compensation Act itself. Vernon’s Ann.Tex.Civ.St. art. 8306, Sec. 20. The inclusion in the definition of “injury” of the language upon aggravation was warranted only because of the allegations in the amendment of the plaintiff, for it is not included in the definition of the statute. It is “judge-made law” which entitles a claimant under our Act to recover because of disability resulting from a condition previously or subsequently existing when and where the damage or harm to the physical structure of the body, resulting because of a compensable injury, has accelerated or aggravated the same so as to occasion such disability. See Texas Employers’ Ins. Ass’n v. Parr, Tex.Com.App. 1930, 30 S.W.2d 305 and cases following; 45 Tex.Jur., p. 492, “Workmen’s Compensation”, Sec. 98, “Pre-existing Disease or Condition as Cause or Contributing Cause”. Let us suppose that the trial amendment had not been permitted. Under that supposition the definition of “injury” would not have contained the words upon aggravation. Would not the insurance company have been entitled, in that event, to a special issue reading substantially as follows : “Do you find from a preponderance of the evidence that Willie Milligan’s incapacity, if any, since date of - was not the result of a preexisting arthritis?” And, if the jury had refused to answer said issue in the affirmative for plaintiff would not the insurance company have been entitled to a judgment relieving it of any liability for compensation after the date inquired about in the issue? I believe that under those circumstances the insurance company would have been entitled to such an issue and to a judgment in its behalf in the event an answer had been returned favorable to it. With the allowance of the trial amendment such issue ceased to be an ultimate issue in the case. Even if submitted and answered favorably to the insurance company such would avail it nothing if the jury should be entitled to find, as it did in this case, that plaintiff sustained an “injury” which was defined not only in the terms of the statutory definition but with the additional element proper to be added to such definition only when the pleadings and evidence in the cause raise the issue of acceleration or aggravation. I believe that the statement from the opinion in Texas Employers’ Ins. Ass’n v. Dillingham, quoted in the forepart of this dissenting opinion, correctly states the law. If it does the correct judgment to be rendered in the instant case would be one of reversal and remand.

2013-10-30 06:32:47.474508+00

Flaherty

913 A.2d 1033 (2007) WARWICK HOUSING AUTHORITY v. Barbara McLEOD. No. 2005-323-A. Supreme Court of Rhode Island. January 18, 2007. *1034 K. Joseph Shekarchi, Esq., Susan A. Chiariello, Esq., for Plaintiff. Tiffany Antoch Emery, Esq., for Defendant. Present: WILLIAMS, C.J., and GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. OPINION Justice FLAHERTY, for the Court. Barbara McLeod (defendant or McLeod) appeals from a judgment of the Superior Court in favor of the Warwick Housing Authority (WHA or plaintiff) evicting her from her apartment in Meadowbrook Terrace, a subsidized housing complex in Warwick. The defendant contends that because WHA, after giving her notice of termination, continued to accept rent without preserving its right to terminate the lease, was thereby precluded from pursuing the ejectment action and that the motion to dismiss should have been granted by the trial court. The WHA counters that because McLeod was aware of the eviction proceedings against her, it was entitled to accept her rent without reservation. The trial justice agreed with WHA and entered judgment for the plaintiff. McLeod has timely appealed. This case came before the Supreme Court for oral argument on December 4, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and we proceed to decide the appeal at this time without further briefing or argument. For the reasons stated in this opinion, we reverse the judgment of the Superior Court. I Facts and Procedural History In 1996, McLeod began living in Meadowbrook Terrace, one of several Warwick facilities providing subsidized housing primarily *1035 for elderly residents. In 2002, the administrators of WHA began to receive complaints regarding McLeod's son, Mark Anthony (Anthony). Specifically, other residents of Meadowbrook Terrace reported to the executive director of WHA, Michael Lyckland (Lyckland), as well as to other employees of WHA, that Anthony was living with McLeod, which, if true, would constitute a violation of her rental agreement. Because of those complaints, Lyckland instructed his director of maintenance, Everett O'Donnell, to investigate whether Anthony was, in fact, living in the apartment. O'Donnell's investigation led him to believe that Anthony was indeed residing with McLeod. However, WHA never cited Anthony's residence in the apartment as a cause for the termination of McLeod's lease. On January 4, 2005, the Warwick police were called to McLeod's apartment, where they arrested Anthony for first-degree sexual assault and domestic simple assault and battery on his ex-wife, who was visiting Anthony. Anthony gave a statement to the police in which he said his address was McLeod's Meadowbrook Terrace apartment. From the record, it does not appear that McLeod was at home when the violent assault took place. Nonetheless, on January 8, WHA sent McLeod a notice that her rental agreement would be terminated on January 31 because of her son's criminal activity in the apartment. Notwithstanding the notice, however, McLeod paid her rent for February, and WHA accepted it without reservation. On February 2, 2005, McLeod was sent a second letter notifying her that her rental agreement was terminated, this time as of February 28, 2005. The violation of the rental agreement cited in this notice was that McLeod herself had pled nolo contendere to an identity fraud charge on November 17, 2004. This, according to WHA, violated another term of her rental agreement.[1] Still, McLeod paid the rent due on March 3, 2005; significantly, she has continued to pay her rent since, which has been unconditionally accepted by WHA while this litigation has been pending. WHA filed a complaint for eviction in the District Court on February 24, 2005, and the agency obtained a judgment against McLeod on June 7, 2005. The defendant exercised her right to a trial de novo[2] in the Superior Court by filing a notice of appeal on June 10, 2005. That court conducted a nonjury trial on September 9, 2005. At the conclusion of the trial, the trial justice rendered a bench decision and judgment was again entered in favor of WHA. During the trial, WHA presented evidence on two issues that it said entitled it to judgment for possession of the premises: (1) that McLeod violated her rental agreement, and (2) that McLeod was aware, at all relevant times, that WHA was prosecuting an eviction action against her. The defendant, on the other hand, argued that the eviction action must be dismissed pursuant to G.L.1956 § 34-18-41. That section of the Residential Landlord and Tenant Act, chapter 18 of title 34, sets out the circumstances in which a land-lord *1036 waives the right to terminate a lease by accepting rent: "Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by him or her that varies from the terms of the rental agreement constitutes a waiver of the landlord's right to terminate the rental agreement for that breach, unless the landlord gives written notice within ten (10) days. However, acceptance of partial payment of rent shall not constitute a waiver of the balance due. Acceptance does not waive the landlord's right to seek remedies for the default." Section 34-18-41. (Emphasis added.) McLeod argued before the trial justice that WHA waived its right to terminate her lease because it continued to accept her rent without written reservation after discovering her breach of the rental agreement—that breach being either her son's criminal activity or her own plea to a criminal offense.[3] At the outset of the trial, the trial justice said that § 34-18-14,[4] a general notice provision, "specif[ies] that a person has notice of a fact if he or she has actual knowledge of it, has received notification, or from all facts and circumstances known to him or her at the time in question he or she has reason to know that it exists." Relying on that statute, the trial justice reasoned that if the testimony showed that McLeod had notice of WHA's continuing efforts to evict her, she would deny defendant's motion to dismiss the action despite the language of § 34-18-41. At the conclusion of the testimony, the trial justice found that there was an abundance of credible evidence that Anthony was living in the apartment[5] in violation of the rental agreement, and that McLeod was given adequate notice that she would be evicted. As a result, the trial justice denied McLeod's motion to dismiss pursuant to § 34-18-41, and she entered judgment for plaintiff. II Standard of Review Questions of statutory interpretation are reviewed de novo. East Bay Community Development Corp. v. Zoning Board of Review of Barrington, 901 A.2d 1136, 1152 (R.I.2006). When a specific statute conflicts with a general statute, our law dictates that precedence must be given *1037 to the specific statute. Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1136 (R.I.2002). Furthermore, arguments not made before the Superior Court are deemed waived, under our well-settled "raise or waive" rule, and will not be considered by this Court. Narragansett Electric Co. v. Carbone, 898 A.2d 87, 101 (R.I.2006). III Analysis On appeal, defendant reasserts her argument that § 34-18-41 barred WHA from pursuing this eviction action because it accepted rent from her after it had given notice of her breach of the rental agreement, and it did not give her written notice of its intention to continue termination proceedings for that breach. Conversely, WHA asks us to uphold the judgment of the Superior Court because defendant had notice under § 34-18-14. It also presses, for the first time, two additional arguments. First, it urges that a term of McLeod's rental agreement that says that the waiver by a landlord of one breach does not constitute waiver of another breach abrogates the effects of § 34-18-41. Second, WHA contends that a separate statute, G.L.1956 § 34-18-36(f), as amended by P.L.1996, ch. 358, § 1,[6] frees it from a notice requirement because McLeod's tenancy was terminated for a crime of violence, bringing the matter within the provisions of § 34-18-24(10).[7] We first address the two new arguments raised by WHA in its pre-briefing statement to this Court. The record reveals that neither contention was made at the trial. Under our well-established "raise or waive" rule, we will not consider arguments that were not made before the trial court. Carbone, 898 A.2d at 101. Therefore, these arguments are not properly before this Court, and we will not consider them.[8] *1038 The question remains, however: is a landlord who is aware that a tenant is in breach of a rental agreement estopped from pursuing an eviction action against a tenant for that breach if he accepts rent without a written reservation of that right, even though the tenant has actual notice of the pending eviction action? A review of our case law reveals that before the 1986 enactment of the Residential Landlord and Tenant Act we held consistently that a landlord is under a duty to refrain from accepting rent from a tenant when pursuing an eviction action for breach of a rental agreement. As early as 1896, we held that a landlord who accepts rent after learning of a breach waives his right to pursue eviction for that breach. Smith v. Edgewood Casino Club, 19 R.I.628, 629-30, 35 A. 884, 884-85 (1896) (when tenant sublet premises in violation of lease agreement, accepting rent after learning of the breach constituted a ratification of the sublease). Time and again we have reiterated the principle that acceptance of rental payments precluded a landlord from pursuing eviction actions. See, e.g., Cardi v. Amoriggi Sea Foods, Inc. 468 A.2d 1223, 1226 (R.I.1983) (acceptance of the rent, unconditionally, rendered the waiver of the right to pursue eviction for the breach unconditional); Bove v. Kates Properties, Inc. 444 A.2d 193, 195 (R.I.1982) (because rent was accepted while the action was pending in District Court, the right to pursue eviction for the breach was waived by the landlord). Since the time these cases were decided, the General Assembly passed the Residential Landlord and Tenant Act. The act is carefully crafted and balances the rights of landlords and tenants. Section 34-18-41 is crystal clear in requiring that the landlord give written notice of his intention to continue termination proceedings to the tenant within ten days of accepting rent. Failure to provide that notice results in the waiver of the right to terminate for any breach of the rental agreement of which he has knowledge. The pellucid wording of this statute is, in essence, a codification of the rule that existed at common law that deemed a landlord's unqualified acceptance of rent to be a waiver of any breach of which he was aware. Bove is particularly relevant to the case now before us because, as in this case, an action was pending in the District Court when the landlord accepted rent. Bove, 444 A.2d at 195. Part of WHA's argument in this case is that the court notices sent to McLeod provided her with notice. However, those same notices were present in Bove, but they did not insulate the landlord from being deemed to have waived his right to terminate because of the breach. Id. In our opinion, the trial justice committed an error of law when she held that the general notice provision, § 34-18-14, trumped the very specific wording of § 34-18-41, simply because McLeod knew that the eviction action was pending. We fail to see how § 34-18-41 could be more unequivocal in its command that written notice of the landlord's intention to terminate the lease is required within ten days of accepting rent. Furthermore, § 34-18-41 *1039 is a specific statute that refers only to situations in which a landlord accepts rent after giving notice of breach of the rental agreement. On the other hand, § 34-18-14 is general in nature and defines the term "notice" as it is used throughout the chapter. It cannot be used to override other sections that call for a particular form of notice. It is axiomatic that when a specific statute clashes with a general statute, and the two cannot be harmonized, the specific statute takes precedence. Wilkinson, 788 A.2d at 1136. Section 34-18-41 is the specific statute in this instance, and, therefore, its mandate cannot be overcome by reference to the general notice statute. Without doubt, the plain language of § 34-18-41 obliges the landlord to give written notice to the tenant if he intends to continue termination procedures within ten days of accepting the payment of rent. Therefore, we hold that § 34-18-41 clearly and unambiguously says that a landlord waives the right to terminate for a breach of which he has notice when he accepts rent unless he reserves his right to terminate for that breach in writing within ten days. This is so even when there is an action pending. See Bove, 444 A.2d at 195. Here, WHA sent McLeod two separate termination notices, one on January 8, 2005, and the other on February 2, 2005. Those notices make it clear that WHA alleged that McLeod had breached her rental agreement. Nonetheless, WHA continued to accept rent from McLeod without reserving its right, in writing, to terminate her tenancy for those breaches. Thus, WHA was precluded from pursuing the eviction action against McLeod. IV Conclusion For the foregoing reasons, the judgment of the Superior Court is reversed. We remand the case to the Superior Court with instructions to grant the defendant's motion to dismiss and enter judgment for the defendant. NOTES [1] Article VI, § 6.1(12) of the rental agreement says that it is the obligation of the tenant "[t]o assure that the Tenant * * * shall not engage in: a. Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the Authority's public housing premises by other residents * * *." [2] All actions under the Residential Landlord and Tenant Act are subject to a de novo appeal in the Superior Court according to G.L. 1956 § 9-12-10.1. [3] It is fairly debatable whether either of these incidents would qualify as a breach of her rental agreement. In the notices sent from WHA to McLeod, WHA hinges the breach on the language of G.L.1956 § 34-18-24(7), which requires a tenant to "Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that will not disturb his or her neighbors' peaceful enjoyment of the premises." There is no dispute that McLeod was not at home when her son allegedly assaulted his ex-wife. Also, there is no indication in the record that the victims of McLeod's identity fraud offenses were residents of Meadowbrook Terrace. Although it is questionable whether either of the offenses cited would breach the tenant's obligation under the statute, we decide this case on other grounds and need not address those questions. [4] Section 34-18-14(a) reads: "(1) A person has notice of a fact if: "(i) He or she has actual knowledge of it; "(ii) He or she has received a notice or notification of it; or "(iii) From all the facts and circumstances known to him or her at the time in question he or she has reason to know that it exists. "(2) A person `knows' or `has knowledge' of a fact if he or she has actual knowledge of it." [5] Notably, the fact of Anthony living in the apartment was never provided as a reason for termination of the rental agreement in the notices sent to McLeod by WHA. [6] Section 34-18-36(f), as amended by P.L. 1996, ch. 358, § 1, sets out the circumstances in which notice of the intent to pursue an eviction action is not required as follows: "If the tenant has violated § 34-18-24(8), (9), or (10), or if the tenant (i) is a seasonal tenant occupying the premises pursuant to a written lease agreement which commences no earlier than May 1st of the occupation year and expires no later than October 15th of the occupation year, with no right of renewal or extension beyond the above dates; and (ii) has been charged with violating a municipal ordinance or has otherwise violated the terms of the rental agreement pertaining to legal occupancy or excessive noise or other disturbance of the peace, the landlord shall not be required to send a notice of noncompliance to the tenant and may immediately file a complaint for eviction in a form substantially similar to that provided in § 34-18-56(e) and seek the relief set forth in subsection (d)." [7] Section 34-18-24(10) reads: "A tenant shall: "* * * "(10) Refrain from any crime of violence on the premises or on any public property adjacent to said premises. A `crime of violence' means and includes any of the following crimes or an attempt to commit any of the following crimes; murder, manslaughter, arson, rape, sexual assault, mayhem, kidnapping, assault with a dangerous weapon, assault or battery involving grave bodily injury, and a felony assault with intent to commit any offense." [8] We do note, however, that neither argument is persuasive. The waiver provision in the lease is inapposite in that it states that waiver of one breach of the lease agreement does not constitute waiver of another breach. In this case, there is no new breach that WHA cites as the reason for termination. The only breaches alleged are those of which WHA was aware even though it continued to accept rental payments from McLeod without written reservation. Second, the assertion that notice is waived because McLeod's lease was terminated for a crime of violence under § 34-18-24(10) is perplexing in that WHA did not invoke that section of the statute when it notified McLeod of the impending termination of her lease in either the letter of January 8, 2005 or February 3, 2005. Therefore, even if the notice-waived, fast-track eviction procedures of § 34-18-36(f) would abrogate the notice requirements of § 34-18-41 when rent is accepted (and we express no opinion on that issue here) those procedures could not apply, because there is no allegation that McLeod herself committed a crime of violence in her apartment, or that she had knowledge of her son's assault on his ex-wife.

2023-08-22 21:24:01.570548+00

Young

YOUNG, Justice. The suit by appellee, plaintiff, was for damages, both actual and exemplary, arising from an alleged conversion and loss of profits relating to personal property. On answers of the jury to issues submitted, the court rendered judgment for plaintiff in sum of $2,750 ($750 actual, and $2,000 exemplary) ; defendants seasonably appealing. Factual background of the controversy is reflected in the following summary of numbered jury issues and answers: (1) That since October 8, 1957, Sunray Enterprises, Inc. and Leon Blount have wrongfully exercised dominion or control, in denial of any right of David Rosenaur over the damaged Alma Trailer in question; (2) such exercise of dominion and control was wrongfully and maliciously done; (3) Rosenaur has sustained damages as a result; (4) before October 8, 1957, Rosenaur, as an individual, agreed with Galloway & Co. (realtors) to remove the remains of the burned structure in question; (5) since October 8, 1957, defendants have prevented plaintiff Rosenaur from carrying out the terms of said agreement with Galloway & Co.; (6) plaintiff individually has sustained damages as a result of being prevented from removing said damaged structure; (7) the sum of $400 was reasonable compensation to plaintiff for financial loss because of his being prevented from removing the damaged metal building; (8) plaintiff’s failure to remove the Alma Trailer from the premises in question prior to October 8, 1957, was not due to his negligence; (10) reasonable cash market value of the Alma Trailer of plaintiff in Dallas County on October 8, 1957, was $350; (11) plaintiff is entitled to exemplary damages from defendants (defining same) in sum of $2,000; (13) presence of plaintiff’s damaged Alma Trailer on the premises in question did not interfere with the use of such premises by defendants. We have been favored with no reply brief on part of appellee. Hence under Rule 419, Texas Rules of Civil Procedure, authorizing the appellate court to accept the unchalleged statements contained in appellants’ original brief, we are further authorized to view appellants’ said brief as correctly reflecting the facts recited in support of points without resort to the Statement of Facts. See cases cited under the Rule (419), Note 4, Vernon’s Texas Rules (Civil). It appears that the defendant Sun-ray Enterprises, Inc., of which Leon Blount was president, had on October 8, 1957, entered into a written lease of premises known as 2913 South Ervay Street, Dallas, from the owners through Galloway & Co., agents, to be occupied as a piano store, repair and sales. Prior tenants had been plaintiff Rosenaur and one Wasserman, doing business as Zipp City Iron & Metal Company. This concern had undergone a fire in July 1957; having vacated the premises as of August 1st, leaving on rear of lot the property described in jury issues as a burned Alma Trailer and remains of a metal building or structure; the lease containing no reservation permitting appellee to go on the premises and remove said property after October 8, 1957; appellants on the other hand to take the premises as it existed on said rental date. The burned metal structure, by the way, had been supported by iron pipes attached to the freehold. For one reason or another, Rosenaur *672had not removed the above listed burned items from off the premises by October 8 when defendants went into possession; defendants laying no claim to the property, insisting on its removal by plaintiff, but objecting to plaintiff’s asserted right to accomplish removal of the burned trailer, metal structure and iron pipes by use of blow torches as creating a fire hazard. Appellants point to testimony of appellee where he admittedly could have removed his burned property off the lot between August and October 8, 1957; Blount asking him to do so; but of likelihood of starting a fire if done with blow torches. The elements of a wrongful conversion are not presented in the foregoing résumé of facts and appellants’ points one and two to such effect must be sustained; the items in suit having remained on the premises when appellants went into lawful possession. “It is a well-settled rule that one who is rightfully in possession of property, though the legal title thereto may be in another, is not guilty of conversion. Conversion is the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner.” Cantrell, et al. v. Broadnax, Tex.Civ.App., 306 S.W.2d 429, 433. The jury finding of $400 under issue 8 (financial loss to plaintiff in being prevented by defendant Blount from moving off the premises the damaged metal structure after October 8, 1957) appears to be based on an oral agreement between agents for the owners and Rosenaur to such effect, made prior to that date. The written lease in evidence contained no such reservation of right on part of plaintiff; that is to go upon the premises after October 8, date of defendants’ lease and remove the remnants of the metal structure which were affixed to the freehold by iron pipes. As appellants point out, the submission of issues 4, 5, 6 and 7, based on evidence admitted over their objection, amounted to the grafting of a parol reservation of right in the written lease of Sunray Enterprises; any financial loss resulting to Rosenaur being chargeable to the building owners for not expressly making the lease subject to his right of entry onto and removal from the lot these burned items of property. Manifestly, appellants, being in lawful possession of the premises, presumably occupying same with their wares and merchandise, could reasonably object to the use by appellee 'of blow torches in the situation thus presented; especially so, in absence of evidence that his burned structure could not have been removed by use of less hazardous means and methods. The judgment under review is reversed and the cause remanded to the trial court.

2023-08-22 21:24:01.57424+00

On Rehearing Under Rule 414, T.C.P., appellee’s reply brief was required to be filed in this Court by March 16, 1959. He was duly notified of date of submission which was November 24, 1959. Our opinion of reversal and remand was of March 25, 1960, and fourteen days later (April 8) is filed in effect his reply brief of 20 pages but styled “Motion for rehearing”. He simply “apologizes to the Court for failing to file a brief in the first instance”. We have again reviewed this 138-page statement of facts and find that issues of fact are raised therein as demonstrated by the jury issues and answers. In view of all these things we cannot ignore the settled rule reiterated in Texas Employers Ins. Ass’n v. Van Pelt, Tex.Civ.App., 83 S.W.2d 392, 393, “that ap-pellee, having failed to brief the case on original hearing, cannot, on motion for rehearing, challenge the correctness of appellant’s statements. We are justified in adhering to the rule, especially in this case, where the statement of facts consists of more than 650 pages. We cannot be expected to review a record of that magnitude to ascertain the correctness of appellant’s statements when appellee, with ample time *673in which to do so, has failed to file a brief challenging the correctness of such statements.” Appellee’s motion for rehearing is overruled.

2013-10-30 06:32:47.614492+00

Per Curiam

913 A.2d 862 (2006) COMMONWEALTH of Pennsylvania, Petitioner, v. Rennie MOORE, Respondent. Supreme Court of Pennsylvania. December 8, 2006. ORDER PER CURIAM. AND NOW, this 8th day of December, 2006, the Petition for Allowance of Appeal is hereby GRANTED. It is further ordered that the Superior Court's Order is VACATED, and that this case is REMANDED to the Superior Court for reconsideration of Respondent's sufficiency of the evidence claim on an undiminished record in accordance with Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 978 (1982), and if necessary, for disposition of any unresolved issues properly preserved and raised by Respondent on appeal. The Superior Court is instructed that in reconsidering Respondent's sufficiency of the evidence claim, it apply the principles set forth in Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 907 (2004) (quotation omitted) (reiterating that "`[w]hen reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt.'"); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536, 538 (1979) ("The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence."); and Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927, 930 (1982) (noting that "conspiracy may be proven inferentially by showing relation, conduct, or circumstances of parties, and overt acts of alleged co-conspirators are competent as proof that criminal confederation has in fact been formed.").

2013-10-30 06:32:47.645037+00

Zilly

955 F.Supp. 96 (1996) In the Matter of the Application of Douglas Armando CASTELLANOS A70-556-781, Petitioner. No. C96-1460Z. United States District Court, W.D. Washington, at Seattle. December 13, 1996. Rosalynn D. Guillen, Allen & Guillen, P.S., Seattle, WA, for Petitioner. Christopher Lee Pickrell, U.S. Attorney's Office, Seattle, WA, for Respondent. ORDER ZILLY, District Judge. This matter comes before the Court on petitioner Douglas Armando Castellanos's Petition for a Writ of Habeas Corpus. Petitioner is an aggravated felon as a result of his previous conviction for unlawful delivery of a controlled substance. See INA § 101(a)(43)(B); 8 U.S.C. § 1251(a)(2)(A)(iii). Petitioner is now subject to a final order of deportation. Mr. Castellanos contends that the Board of Immigration Appeals denied him his Fifth Amendment due process rights "in that the INS has failed to fully review the humanitarian factors which provide the petitioner with his sole basis for relief." Petition for a Writ of Habeas Corpus, docket no. 1, at 7-8. Petitioner is now in custody in Yuba City, California awaiting deportation. *97 The Government contends that this habeas corpus proceeding should be dismissed (1) for lack of jurisdiction or improper venue because petitioner is in custody in the Eastern District of California, (2) because the court has no jurisdiction in light of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) and amendments to § 440(a), and (3) on the merits because there was no due process violation which would afford Petitioner relief. ANALYSIS 1. Jurisdiction and Venue The INS's response to this Court's Minute Order of November 15, 1996 admits that the Seattle District Director is "an appropriate custodian over whom judicial process can be and has been served." INS Response, docket no. 4, at 1. Because jurisdiction over the Seattle District Director, as custodian, provides the Court with necessary jurisdiction, the Court DENIES the Government's motion to dismiss for lack of jurisdiction or improper venue. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Gurbisz v. U.S. I.N.S., 675 F.Supp. 436, 438 (N.D.Ill.1987). 2. Effect of AEDPA On April 24, 1996, President Clinton signed into law the AEDPA. Section 401(e) of that statute amended 8 U.S.C. § 1105a(a)(10) to provide that a final order of deportation against an alien who is deportable by reason of having committed various specified aggravated felonies "shall not be subject to review by any court." AEDPA § 440(a). The issue presented here is whether, notwithstanding the clear congressional intent to eliminate court review of final orders of deportation for aggravated felons, the courts retain jurisdiction under 28 U.S.C. § 2241 to conduct habeas review. Since the effective date of the AEDPA, the only courts to consider the issue have concluded that habeas relief is available under 28 U.S.C. § 2241, but to obtain habeas relief the petitioner must demonstrate "a grave constitutional error or a fundamental miscarriage of justice in his deportation proceedings." Powell v. Jennifer, 937 F.Supp. 1245, 1252-53 (E.D.Mich.1996); Mbiya v. I.N.S., 930 F.Supp. 609, 612 (N.D.Ga.1996). See also Orozco v. U.S. I.N.S., 911 F.2d 539 (11th Cir.1990) (28 U.S.C. § 2241 provides basis for habeas jurisdiction). This Court concludes that 28 U.S.C. § 2241 preserves the writ of habeas corpus for aliens subjected to deportation for having committed aggravated felonies, but the writ is available only to challenge a fundamental miscarriage of justice. Mbiya, 930 F.Supp. at 612. 3. Merits of Petitioner's Claim Petitioner is not entitled to relief in this case. Petitioner's claim is that he was denied a fair hearing and due process of law because "the INS has failed to fully review the humanitarian factors which provide the petitioner with his sole basis for relief." Petition for Writ of Habeas Corpus, docket no. 1, at 7-8. The record demonstrates, however, that Petitioner was afforded a full and fair hearing. The Immigration Judge granted petitioner's request for a continuance to find counsel. Petitioner failed to obtain counsel and voluntarily agreed to proceed without counsel. During the hearing he admitted that he had been convicted of an aggravated felony (A.R. 69), and this evidence was sufficient to establish petitioner's deportability. 8 C.F.R. § 242.16(b). Petitioner is not eligible for political asylum due to his aggravated felony conviction. 8 U.S.C. § 1158(d); 8 C.F.R. § 208.14(d)(4). He is also ineligible for withholding of deportation. 8 U.S.C. § 1253(h)(2); 8 C.F.R. § 208.16(c)(2)(ii). Petitioner has failed to show any fundamental due process violation or any resulting prejudice that would entitle him to relief. In addition, his decision to proceed without counsel does not give rise to a claim under the Sixth Amendment. See Baires v. I.N.S., 856 F.2d 89, 91 (9th Cir. 1988) (no Sixth Amendment right to counsel in deportation proceedings). Accordingly, Petitioner's petition for writ of habeas corpus must be DENIED. CONCLUSION This Court has jurisdiction over the Petitioner. Petitioner has failed to establish any *98 grave constitutional error or fundamental miscarriage of justice in his deportation proceedings. Therefore, the Petition should be DISMISSED.

2013-10-30 06:32:47.657996+00

Walter

335 S.W.2d 388 (1960) ARGONAUT UNDERWRITERS INSURANCE COMPANY, Appellant, v. Cecil ELLIS, Appellee. No. 3524. Court of Civil Appeals of Texas, Eastland. March 11, 1960. *389 Harris, Anderson, Henley & Rhodes, Dallas, for appellant. Scarborough, Black & Tarpley, Abilene, for appellee. WALTER, Justice. Appealed from the County Court of Nolan County. Cecil Ellis recovered judgment for $156 in a nonjury trial against Argonaut Underwriters Insurance Company for medical expenses under the Workmen's Compensation Law, Section 7 of Article 8306, Vernon's Ann.Civ.St. The insurance company has appealed from such judgment, contending the court erred in entering judgment for Ellis because (1) Ellis had theretofore filed his compensation suit in the federal court and failed to sue for medical expenses in such suit and said judgment is res judicata as to medical expenses, (2) Ellis made an election by filing a cross-action in his common-law action growing out of the same accident and recovered a judgment and his election to prosecute his common-law action barred him from recovering anything further, (3) Ellis failed to prove notice of his injury to the insurance company, (4) Ellis failed to have his physician certify his need for further medical attention during and after the fourth week, (5) a portion of Ellis' medical expenses was incurred more than 91 days after the date of his accident and (6) there was no evidence that one of the doctor's bills was reasonable. Ellis concedes in his brief that the insurance company's points numbers 4, 5 and 6 are good and requests that the judgment be reformed awarding him $54 instead of $156 for medical expenses incurred during the first four weeks. Ellis brought this suit for medical expenses incurred by him as a result of an accident which occurred on November 20, 1956, while he was driving a truck for Golden Motor Company. Ellis filed his compensation suit for disability and obtained a judgment dated December 9, 1957, against the insurance company in the federal court. Ellis did not sue for his medical expenses in his federal court case. In December, 1957, the insurance company assigned to Ellis its subrogation rights under Section 6a of Article 8307 of the Vernon's Ann.Civil Statutes. Ellis thereafter on May 28, 1959, recovered a judgment for $7,000 against the negligent third party in his common-law action. Has Ellis by proceeding to judgment in his common-law action for damages against the negligent third party made such an election as would bar him from recovering his medical expenses under our workmen's compensation law? We hold that he has made such an election as would bar him from recovering in this case. In the case of Texas Employers' Insurance Ass'n v. Brandon, 126 Tex. 636, 89 S.W.2d 982, 983, the Commission of Appeals held "While an election to proceed against the insurer for compensation does not altogether bar an action by the employee for damages against a negligent third person, an election to proceed at law against such person is a bar to the employee's right to compensation. Employers' Indemnity Corporation v. Felter, (Tex.Com.App.) 277 S.W. 376." The express language of Section 6a of Article 8307 is "* * * the employé may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law." The judgment of the trial court is reversed and here rendered that the appellee take nothing from the appellant.

2013-10-30 06:32:47.680226+00

Lavine

913 A.2d 483 (2007) 99 Conn.App. 336 Evana DiNUZZO v. DAN PERKINS CHEVROLET GEO, INC., et al. No. 27337. Appellate Court of Connecticut. Argued October 20, 2006. Decided January 23, 2007. *485 G. Randall Avery, Stamford, for the appellants (defendants). John M. Spielman, with whom, on the brief, were Stacey D. Lafferty, Trumbull, and Jamie L. Cortina, legal intern, for the appellee (plaintiff). SCHALLER, ROGERS and LAVINE, Js. LAVINE, J. The issue in this appeal from the decision of the workers' compensation review board (board) is whether there was sufficient evidence before the workers' compensation commissioner (commissioner) for him to find that the death of the decedent, James DiNuzzo, was causally related *486 to a compensable injury. We conclude that there were insufficient subordinate facts before the commissioner from which he reasonably could make such a finding and, thus, reverse the decision of the board. On appeal, the defendant Dan Perkins Chevrolet Geo, Inc.,[1] claims that the board improperly affirmed the commissioner's findings because (1) the findings were predicated on expert medical testimony grounded in conjecture, speculation or surmise, (2) the expert medical testimony was not supported by the subordinate facts and (3) the expert testimony was not provided by a qualified or competent medical expert. We agree with the first and second claims, which are interrelated, and, therefore, need not reach the third. Following the decedent's death, the plaintiff, Evana DiNuzzo, submitted a claim for dependent widow's benefits pursuant to the Workers' Compensation Act (act), General Statutes § 31-275 et seq. See General Statutes § 31-306.[2] The commissioner, after a hearing, made the following relevant findings of fact. The decedent was employed by the defendant and sustained a compensable injury to his cervical spine when he was involved in a motor vehicle accident on June 26, 1997. As a result of the injury, the decedent experienced radiculopathy into his left side and upper extremity. He underwent a three level spinal fusion and foraminectomy. After the surgery, the decedent continued to experience neck pain, left side body pain and paresthesia into his left arm. Prior to his death on January 12, 2002, the decedent had suffered from injuries and illnesses that were unrelated to his compensable injury. He had chronic bilateral shoulder and low back pain that were the result of a bicycle accident he had in 1974. Since before 1982, the decedent had been treated for a chronic hepatitis C infection, a result of his intravenous drug use. The decedent was diagnosed with adult onset diabetes in 1995. In 1994 or 1995, he was diagnosed with hypertension and high cholesterol. The decedent's diabetes, hypertension and high cholesterol were controlled by medication. On December 1, 2001, the decedent was hospitalized with complaints of dizziness, diaphoresis and pain. The symptoms were caused by the effect Interferon, a medicine he took to control the hepatitis C infection, had on his blood sugar level. On the evening of January 11, 2002, the plaintiff observed that the decedent was mumbling and incoherent. He complained that he had severe lower back pain, his stomach was bothering him, and he was constipated. At midnight, the decedent struggled successfully to have a bowel movement, after which he said that he felt better. The plaintiff last saw the decedent at 2 a.m. on January 12, 2002. Because the plaintiff and the decedent slept in separate rooms, the plaintiff was unaware of the decedent's activities between 2 a.m. and 8 a.m. when she discovered his body. Members of the Milford police department responded to the plaintiff's call for assistance. The police report indicates that the decedent was declared dead at 8:50 a.m. on January 12, 2002, and that the body was not examined by the medical examiner. *487 Cosmo Filiberto, a board certified family practitioner and expert in preventive medicine and care, prepared the decedent's death certificate. Filiberto stated that the cause of death was heart disease, secondary to atherosclerotic heart disease. Filiberto had treated the decedent for twenty years and had seen him days before his death but did not examine his body postmortem. No autopsy was performed on the decedent's body. The record is silent as to why no postmortem examination or autopsy was done. Filiberto opined at the hearing before the commissioner that the decedent's death was brought about by the curtailment of his physical activities. His weight sometimes exceeded 300 pounds. His weight gain and resulting inactivity, along with the heavy doses of narcotics he was required to take to control his pain, made it "medically probable and certain that the stress" of the decedent's compensable injury and its treatment substantially contributed to his death, in Filiberto's view, because they severely limited his ability to maintain his physical fitness and aerobic conditioning. Prior to the decedent's compensable injury, he was able to control his pain due to prior accidents with over-the-counter medication and muscle relaxants. Relief from the pain of the decedent's 1997 accident, however, required high doses of narcotics, eventually reaching 3200 milligrams a day. Jonathan Alexander, a cardiologist at Danbury Hospital and clinical faculty member of Yale University School of Medicine, testified for the defendant. Alexander based his opinion and report on a review of the decedent's medical records, including Filiberto's records. Alexander found no evidence of atherosclerotic heart disease in the decedent's medical records. Alexander concluded, therefore, that neither the treatment the decedent received as a result of his cervical injury nor his inactivity nor his weight gain were factors in his death. The commissioner was not persuaded by Alexander's opinions. He found, on the basis of Filiberto's twenty year treatment of the decedent and familiarity with his ongoing medical condition, that there was a relationship between the compensable injury and the decedent's death. He concluded that the plaintiff was entitled to benefits pursuant to § 31-306. The defendant thereafter filed a motion to correct the findings and award, which the commissioner denied in its entirety. The defendant appealed to the board. The defendant gave eleven reasons for the appeal, which we summarize here: the commissioner improperly found that the decedent's death was causally related to the compensable injury because (1) the plaintiff failed to produce sufficient evidence to rule out nonatherosclerotic heart disease as the cause of death, particularly when the decedent had no history of atherosclerotic heart disease, (2) the decedent's body had not been examined postmortem, (3) there were insufficient underlying facts to support the inferential claim asserted, (4) the medical testimony on which the commissioner relied was not provided by an expert in heart disease and (5) the commissioner disregarded the expert testimony of a cardiologist. The board resolved the appeal by concluding that the weight and credibility of the evidence is to be determined by the trier of fact, in this instance, the commissioner. The board concluded that the commissioner's award was not contrary to law, without evidence or based on unreasonable or impermissible inferences. The board, therefore, affirmed the commissioner's award. The defendant appealed. Our workers' compensation scheme "indisputably is a remedial statute that should be construed generously to *488 accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers' compensation [benefits]." (Citation omitted; internal quotation marks omitted.) Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 245, 902 A.2d 620 (2006). "To recover under the Workers' Compensation Act, a plaintiff must prove that the claimed injury is connected causally to the employment by demonstrating that the injury (1) arose out of the employment and (2) occurred in the course of the employment." Smith v. Connecticut Light & Power Co., 73 Conn.App. 619, 625, 808 A.2d 1171 (2002). "A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . The [act] is not triggered by a claimant until he brings himself within its statutory ambit. . . . Although the [act] should be broadly construed to accomplish its humanitarian purpose . . . its remedial purpose cannot transcend its statutorily defined jurisdictional boundaries." (Citation omitted; internal quotation marks omitted.) Labadie v. Norwalk Rehabilitation Services, Inc., 84 Conn. App. 220, 228, 853 A.2d 597 (2004), aff'd, 274 Conn. 219, 875 A.2d 485 (2005). "[T]raditional concepts of proximate cause furnish the appropriate analysis for determining causation in workers' compensation cases. . . . [T]he test for determining whether particular conduct is the proximate cause of an injury [is] whether it was a substantial factor in producing the result." (Citations omitted; internal quotation marks omitted.) Dixon v. United Illuminating Co., 57 Conn.App. 51, 60, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000). "The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner's findings and award. . . . Our scope of review of the actions of the [board] is [similarly] . . . limited . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed." (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 80 Conn.App. 15, 18-19, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003). "Our role is to determine whether the review [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being credible and the more weighty." (Citation omitted; internal quotation marks omitted.) O'Reilly v. General Dynamics Corp., 52 Conn.App. 813, 816, 728 A.2d 527 (1999). "As long as it is clear that the expert's opinion was based on more than mere conjecture, the entire substance of the expert's testimony should be examined." Id., at 817, 728 A.2d 527. "[E]xpert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . To be reasonably probable, a conclusion must be more likely than not. An expert's testimony as to the reasonable probability of the occurrence of an event does not depend on *489 semantics or the use of any particular term or phrase, but rather, is determined by looking at the entire substance of the testimony." (Citation omitted.) Id., at 817-18, 728 A.2d 527. "The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Inferences may only be drawn from competent evidence. Competent evidence does not mean any evidence at all. It means evidence on which the trier properly can rely and from which it may draw reasonable inferences." (Citation omitted; internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn.App. 440, 451, 774 A.2d 992 (2001). In this case, the commissioner credited the testimony of Filiberto, the plaintiff's personal physician. We accept the commissioner's credibility determination for purposes of our analysis, but the testimony of even the most persuasive expert witness cannot be credited if it is not based on facts. The determinative question, therefore, is not whether Filiberto was credible, but whether there are sufficient subordinate facts in the record to support his opinion that the decedent's death was causally related to his compensable injury. On the basis of our review of Filiberto's testimony, we conclude that there are not and that Filiberto's opinion was grounded in speculation or conjecture. See O'Reilly v. General Dynamics Corp., supra, 52 Conn.App. at 817, 728 A.2d 527. Filiberto testified before the commissioner on May 5, 2004, and a copy of his deposition testimony was placed into evidence. Our review of the transcripts reveals that the decedent was morbidly obese in 1982 and that he gained twenty to thirty pounds after the 1997 accident and thirty to thirty-five more pounds after his cervical fusion. Due to the decedent's weight and the drugs he took to control his pain, Filiberto opined that the decedent was unable to exercise and that he would have lived longer had he exercised. According to Filiberto, the decedent died of a heart attack caused by atherosclerotic disease, although he never ordered tests to determine whether the decedent, in fact, had atherosclerotic heart disease.[3] Filiberto also opined that Oxycontin, which the decedent was taking for pain, can cause constipation. According to Filiberto, straining to have a bowel movement can cause changes in the body's system that can produce cardiac arrest. Filiberto also testified that he did not examine the decedent's body subsequent to its being found and that no autopsy had been performed. Filiberto did not know whether the decedent had a congenital heart defect that could have caused a heart attack and acknowledged that a ruptured aneurysm, pulmonary embolism, stroke or sudden arrhythmia can cause sudden death.[4] He conceded that without an autopsy, there is no way to know the exact cause of the decedent's death. On cross-examination before the commissioner, the defendant's counsel presented *490 Filiberto with a copy of the decedent's January 11, 2002 Milford Hospital records, which he previously had not seen.[5] A gastroenterologist was treating the decedent's chronic hepatitis C infection, and Filiberto was unaware that the decedent had commenced taking Interferon. Filiberto conceded that the symptoms the decedent complained of on January 11, 2002, could have resulted from taking Interferon. See footnote 5. The reality is that it was not possible to determine with any reasonable degree of probability the cause of the decedent's death given the factual gaps in the record. On the basis of our examination of Filiberto's testimony and opinion, we conclude that there were insufficient subordinate facts to support his opinion that the decedent's death was causally related to the compensable injury or to remove the cause of death from the realm of conjecture.[6] See Aspiazu v. *491 Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987) (expert opinion cannot be based on conjecture or surmise but must be reasonably probable). We therefore reverse the board's decision. The decision of the workers' compensation review board is reversed and the case is remanded to the board with direction to sustain the defendant's appeal. In this opinion the other judges concurred. NOTES [1] Utica Mutual Insurance Company, which provided workers' compensation insurance benefits, also was named a defendant and joined this appeal. For convenience, we refer in this opinion to Dan Perkins Chevrolet Geo, Inc., as the defendant. [2] General Statutes § 31-306(a) provides in relevant part: "Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment. . . ." [3] A thorough review of the record disclosed no evidence, other than Filiberto's opinion testimony, that the decedent had atherosclerotic heart disease. [4] Filiberto testified, in part, on cross-examination, as follows: "[The Defendant's Counsel]: Doctor, just so your testimony is clear, whenever there is reference, in any record or [in] anything that you have said, to a heart attack, you don't actually know whether there was a heart attack that precipitated the death, as opposed to some other event, such as a stroke or brain embolism or an aortic burst or something like that? "[The Witness]: That's true." [5] Filiberto testified, in part, on cross-examination at the hearing as follows: "[The Defendant's Counsel]: Doctor, the questions asked by the commissioner bring me to ask you questions about the treatment at Milford Hospital of your patient, [the decedent on] . . . December 1, 2001. Are you familiar with that care? "[The Witness]: No. "[The Defendant's Counsel]: Have you seen the records with regard to the care? "[The Witness]: No. * * * "[The Defendant's Counsel]: Now that [the Milford Hospital record] has been marked as a full exhibit, I just want you to reiterate a couple of things. First, prior to giving your opinions in this case, you did not know that [the decedent] had been a patient at Milford Hospital on December 1, 2001? "[The Witness]: No. "[The Defendant's Counsel]: Now, you see there's reference to a word ataxia. Can you tell us what ataxia means? "[The Witness]: Unsteady when you are walking. Wobbly walking. "[The Defendant's Counsel]: In fact, they performed, apparently at the hospital at this time a CAT [computerized axial tomography] scan of the brain, is that correct? "[The Witness]: Correct. "[The Defendant's Counsel]: And they said they were doing so for what symptom complaints? "[The Witness]: For ataxia, disorientation. . . . Sure. I'll read the whole paragraph [of the Milford Hospital record]. `I discussed the case with [a gastroenterologist]. He states side affects of hypertension, sweating and dizziness expected for five days after Interferon. . . . "[The Defendant's Counsel]: In fact, you do not have records showing when your patient was administered Interferon, do you? "[The Witness]: No. . . . "[The Defendant's Counsel]: Now that you have seen [the Milford Hospital records], is it also a possibility that some of the symptom complaints that [the plaintiff] testified about on that night could have been as a result of some side effect of his Interferon treatment? "[The Witness]: If he had gotten it close to that time frame. The doctor there said four days. "[The Defendant's Counsel]: You don't know when he last might have had any Interferon treatment prior to his death? "[The Witness]: That's right." [6] The plaintiff has argued that the testimony of the defendant's medical expert, Alexander, provided the necessary evidence to establish a causal connection between the decedent's compensable injury and his death. We disagree. During his deposition, Alexander testified on cross-examination by the plaintiff's counsel: "[The Plaintiff's Counsel]: Well, let me ask you: In your opinion, if someone dies suddenly, would you presume that that was a cardiac event? "[The Witness]: Yes. "[The Plaintiff's Counsel]: Why is that? "[The Witness]: Sudden death is not slow death, and there are several organ systems that can fail that can cause one to die suddenly within a matter of minutes, seconds or minutes. And one of those organic systems is the heart. Again, without a witnessed death . . . nobody saw him die; they found him dead, and, without an autopsy, you cannot come to a conclusion as to the cause of this man's death. It's certainly possible it's cardiac, but, as we stated earlier, there are other things that could have caused him to die." (Emphasis added.) Alexander testified that it was possible for the decedent to have died as the result of a cardiac event. Possibilities do not provide a sufficient basis for establishing a causal relationship. "[E]xpert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture. . . . To be reasonably probable, a conclusion must be more likely than not." (Internal quotation marks omitted.) Card v. State, 57 Conn.App. 134, 138-39, 747 A.2d 32 (2000).

2013-10-30 06:32:47.720693+00

Kaufman

955 F.Supp. 499 (1997) Banca CREMI, et al., Plaintiffs v. Alex. BROWN, et al., Defendants. Civil No. K-95-1091. United States District Court, D. Maryland. February 5, 1997. *500 *501 Joseph D. Tydings, Howard Schiffman, and Howard N. Feldman, Washington, DC, for plaintiffs. Michael R. Klein, and Robert F. Hoyt, Washington, DC, for defendants. FRANK A. KAUFMAN, Senior District Judge. Plaintiffs, Banca Cremi, S.A., Institucion de Banca Multiple, Grupo Financiero Cremi and its wholly owned subsidiary, Banca Cremi Grand Cayman (collectively "the Bank"), allege that their investment brokers, defendants Alex. Brown & Sons, Inc. ("Alex. Brown") and its employee, John Isaac Epley ("Epley"), wrongfully caused the Bank to lose over $23 million in connection with certain investments.[1] In this case the Bank has filed claims against Alex. Brown and Epley pursuant to Section 10(b) of the Securities and Exchange Act of 1934 (15 U.S.C. § 78a et seq.) ("Section 10(b)"); Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder by the Securities and Exchange Commission; under the Maryland Securities Act, MD. CORPS. & ASS'NS CODE ANN. § 11-302(c), and state common law theories of breach of fiduciary duty, negligence, negligent misrepresentation and fraud. Plaintiffs also seek relief against Alex. Brown under Section 20(a) of the Securities and Exchange Act of 1934, 15 U.S.C.A. § 78t. Both federal question and diversity jurisdiction exist in this case. Defendants have moved for summary judgment. For the reasons stated in this Opinion this Court will grant that motion. I A. Facts Except where otherwise noted, the following facts are undisputed in all relevant and material respects. B. The Parties Banca Cremi is a credit institution incorporated under the laws of Mexico, with its principal place of business in Mexico City, Mexico. Banca Cremi Grand Cayman is a wholly owned subsidiary of Banca Cremi, incorporated under the laws of the Cayman Islands, with its principal place of business in Mexico City, Mexico. Alex. Brown is a securities brokerage firm, incorporated under the laws of Maryland, with its principal place of business in Baltimore, Maryland. Alex. Brown is a registered broker-dealer. Epley, a citizen of Texas, was vice-president of Alex. Brown's Houston office from April, 1993 until 1995. C. The Nature of the Securities at Issue From 1992 to 1994, the Bank, through Alex. Brown, made a number of investments in what have become widely known as "derivatives." Derivatives are securities whose value are based on their relationship to other securities, such as stocks, bonds or commodities. Although derivatives have existed for years in certain forms, in the early 1990s *502 both the trading and the complexity of derivatives increased dramatically. The particular derivatives at issue in this case are collateralized mortgage obligations (CMO's). CMO's are securities in which mortgages are pooled, and the pool then is broken down into several cash flows and sold as separate entities or "tranches." The risk and reward can be allocated among tranches in a wide variety of ways. For example, CMO's typically include a formula for allocating "prepayment risk." When interest rates fall, borrowers tend to prepay their mortgages by refinancing, although a variety of factors make the exact rate of prepayment difficult to predict. When rates rise, prepayment tends to slow, but, again, at an unpredictable rate. Because prepayment can cause the interest which the mortgagee receives over the life of the mortgage to be less than expected, prepayment can cause a mortgage pool to drop in value. CMO's may distribute prepayment risk by giving certain tranches a priority position to the principal cash flows, meaning that in the event of prepayment, those "higher" tranches will receive a return of principal sooner than do "lower" tranches. The "coupon" in other CMO's — the interest received during the life of the bond — will vary from tranche to tranche and/or according to some factor such as interest rates. CMO issuers, which include both the private sector and government-sponsored entities such as the Federal Home Loan Mortgage Corp. (Freddie Mac) or the Federal National Mortgage Association (Fannie Mae), combine those and other factors to create an array of securities with varying risk and return levels. As will be discussed infra, the Bank purchased a variety of CMO's from Alex. Brown, but the six at issue were of two basic types: "inverse floaters" and "inverse IO's." Inverse floaters are floating rate securities with a coupon which moves opposite interest rates. Different inverse floaters have different structures, with key factors including any cap or floor on the coupon rate and the existence of a multiplier, which determines the sensitivity of the security to changes in interest rates. Inverse IO's are the interest-only portion of an inverse floater. An inverse IO is an especially complex, hybrid security, and investors apparently disagree as to its characteristics in times of rising or declining interest rates. One theory is that inverse IO's are "self-hedging" because, even though the coupon decreases in value when interest rates rise, that decrease is offset by an increase in value resulting from slowed prepayment. Another theory is that the decrease in coupon value will always outweigh the increase as a result of reduced prepayment. D. The Decision to Invest and Defendants' Disclosures Epley's first contact with the Bank came when he solicited the Bank's business in June, 1992. At that time, Epley was working for a different company, MMAR Group.[2] Over the next two to three months, Bank officials engaged in numerous discussions with Epley as they continued to study the possibility of investing in CMO's. Plaintiffs allege that, before they made their first CMO trade, they told defendants of their conservative investment criteria, namely: (1) low risk to capital, (2) high liquidity for (3) short periods (generally, 90-180 days), (4) with a reasonable expectation of a good yield. Although defendants dispute those factual claims, for the purposes of summary judgment, this Court will assume that the Bank appropriately so communicated those criteria to Epley and Alex. Brown. Defendants disclosed to the Bank's representatives both the general nature and riskiness of CMO's and, to a lesser extent, the characteristics of the particular securities purchased by the Bank. Those disclosures included the following: *503 • A pamphlet titled "MMAR Group Guide to CMO Structures," which described CMO's and, in particular, inverse floaters and inverse IO's in some detail. The pamphlet included the statement that inverse floaters "have the potential for significant yield volatility" and described the key factors of inverse floaters, including the cap and floor on the coupon rate and the effect of the multiplier on the sensitivity of the security to changes in interest rates.[3] It described the basic characteristics of inverse IO's and said that they "can perform well in both rising and falling interest rate environments" because of a "self-hedging feature." The guide cautioned that "[p]rices of inverse IO's can be extremely volatile."[4] • A pamphlet titled "Guide to Inverse IO's," which said that inverse IO's were suitable for the "aggressive investor."[5] • A sample CMO prospectus with boiler-plate language describing various risks, including price, yield and certain liquidity risks.[6] • A July 22, 1992 letter from Epley to Monica Buentello of the Bank discussing the four elements of risk commonly associated with inverse floaters: credit risk, coupon risk, price volatility and liquidity. That letter indicated that credit risk was nonexistent but that coupon, price and liquidity risk existed. The letter downplayed the extent of those risks — particularly liquidity risk.[7] • Yield matrices, which typically were provided to the Bank with each proposal made by defendants. Those matrices demonstrated the expected change in yield with changes in interest rates. The Bank received all those materials. The Bank also had available to it and to its employees a number of other books, pamphlets and articles describing CMO's in detail. One such item, a Barron's article titled "The Pinocchio Security: Here's the Awful Truth About CMOs," which was sent to the Bank by a concerned investor prior to the purchase of any of the CMO's at issue herein, described the dangers of CMO investments.[8] Defendants also made Professor Frank J. Fabozzi, a leading expert on CMO's, available to the Bank as a consultant. An internal Bank memorandum ("the Approval Memorandum"), which was prepared with Epley's assistance, also discussed the risks of CMO's, including credit, coupon and price risks.[9] The memorandum acknowledged the existence of some coupon and price risks. Finally, the Approval Memorandum stated that both the price of the bond and the interest rates are guaranteed by the federal government, unless the holder sells before maturity, in which case the market price will prevail. Although defendants made the aforementioned disclosures, on certain occasions Epley downplayed the risks and strongly encouraged the Bank to purchase additional CMO's. When Bank officials asked Epley about the "Pinocchio" article, for example, Epley replied with a letter contending that the article applied largely to individual, rather than institutional, investors, and touting MMAR's expertise in the CMO market.[10] The record contains no indication that, at any time, the Bank requested, but did not receive, additional information from Epley or Alex. Brown as to the nature of the investments at issue in this case. For example, although more detailed information apparently was available as to both the likely yield of *504 the CMO's purchased by the Bank and the potential price volatility of those securities, the Bank apparently did not request such information. E. The Bank's CMO Purchases On August 11, 1992, the Bank made its first CMO purchase. Over the next nineteen months, the Bank purchased twenty-nine different CMO securities on thirty-three occasions, mostly through Alex. Brown. Between August, 1992, and December, 1993, CMO investments earned the Bank a profit of approximately $2 million. Of the thirty-three purchases, twenty-four were sold within 180 days. In early 1994, the U.S. Federal Reserve Board surprised many investors by increasing short-term interest rates to curtail the onset of inflation. That action, combined with other factors, caused a sharp decrease in both the price and liquidity of fixed-rate securities — including CMO's. With far more investors who were seeking to sell than were seeking to buy, the value of the entire CMO market dropped dramatically. By the early part of 1994, when the CMO market began to falter, the Bank held approximately $40 million worth of CMO securities, including the following six bonds, which are the subject of this litigation: a. FN 93-169C, FN 93-203 SA, FN 93-210 SD, inverse floaters, purchased in September and October, 1993, through Alex. Brown at a total cost of approximately $24 million. b. Freddie Mac 1676 S, an inverse floater, purchased on January 24, 1994, for approximately $4.6 million. Although the Bank purchased the security from another firm, Southwest Securities, defendants were intimately involved in the transaction, having arranged the deal, purchased the security earlier in the day, and sold it to Southwest at a profit before Southwest sold the security to the Bank. c. Fannie Mae 94-29 SD, an inverse floater, purchased through Alex. Brown on February 2, 1994, for approximately $4.9 million. The Bank purchased this security from Alex Brown after the Bank had first discussed a slightly different security with another brokerage firm, PaineWebber. d. FHR 1711, an inverse IO, purchased through Alex. Brown on March 30, 1994, for approximately $6.1 million. II Summary Judgment According to the Federal Rules of Civil Procedure, summary judgment is appropriate when "there is no genuine issue as to any material fact and [when] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The procedural device of summary judgment has existed for a significant period; however, it has not always been extensively granted. In fact, prior to 1986, courts were often reluctant to resolve cases by the use of summary judgment.[11] That reluctance was especially evident in cases involving complex litigation, such as securities and antitrust matters. See, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962) ("[w]e believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles"). During the pre-1986 period, the Court of Appeals for the Fourth Circuit followed that approach in a number of cases. For example, in Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951) that court overturned the entry of summary judgment, ruling that "ordinarily" summary judgment should be denied even if the court were convinced that the plaintiff's case would not *505 survive a motion for directed verdict at trial. Id. at 915. "It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented." Pierce, 190 F.2d at 915; see Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) ("even where a directed verdict would be proper after hearing the evidence, the district court should not try the case in advance by summary judgment"). In 1986, however, the United States Supreme Court decided three cases which enhanced the use of summary judgment. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 574, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (collectively, the "Trilogy") together constitute what has been called a "new era" for summary judgment.[12] The Trilogy represents a move by the Supreme Court toward greater utilization of the summary judgment procedural device, even in complex cases. Since defendants file the majority of summary judgment motions, the Trilogy approach often favors defendants. According to observers, "[f]rom the defendant's vantage point ... the effect of the trilogy is both to facilitate the process for making a summary judgment motion and to increase the likelihood of success of such a motion."[13] That effect is indicated in a recent study which evaluated antitrust conspiracy decisions in the wake of Matsushita and noted that defendants were far more likely to prevail on summary judgment motions than previously.[14] In Celotex, Justice Rehnquist, writing for a majority of the Supreme Court, concluded that summary judgment must be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Celotex has been interpreted as "reorder[ing] the burdens facing each party at the summary judgment stage to mirror the ultimate burdens that each party would bear at trial, thereby greatly reducing the demands made upon defendant-movants."[15] In Celotex, Justice Rehnquist observed that "Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. In Anderson, Justice White, for the majority, elaborated upon the requirement that in order to grant summary judgment, there must not be a genuine issue of material fact. To determine if disputed facts are material, Anderson teaches that courts are to look to the substantive law of the underlying case for disputes which "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. If there is such a dispute, and if it is such that would permit a reasonable jury, assessing the evidence, to return a verdict for the non-moving party, summary judgment will be denied. In identifying genuine disputes *506 of material fact, the non-moving party is entitled to any reasonable inferences to be drawn from the underlying facts. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir.1987). However, the non-movant cannot rest on evidence that is "merely colorable" or a mere "scintilla," in order to defeat a motion for summary judgment. Anderson, 477 U.S. at 249-50, 252, 106 S.Ct. at 2511, 2512. In one of the Trilogy, namely, Matsushita, summary judgment was granted in an antitrust case, signaling a significant shift away from the Court's earlier hesitation to grant summary judgment in complex cases. In Matsushita, Justice Powell, for the majority, noted that a non-movant opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Thus, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Thus, if the non-moving party does not do so, and if the record as a whole fails to indicate such an issue, summary judgment is appropriate. An important impact of the Trilogy is the growing willingness of courts, in appropriate circumstances, to consider in the context of summary judgment, issues such as scienter and materiality, previously often thought to raise factual issues not susceptible to summary judgment motions. See In Re Apple Computer Securities Litig., 886 F.2d 1109, 1113 (9th Cir.1989) (noting that while "[m]ateriality and scienter are both fact-specific issues which should ordinarily be left to the trier of fact ... summary judgment may be granted in appropriate cases.") (citations omitted). The Fourth Circuit has fully recognized that trend. In Cooke v. Manufactured Homes, Inc., 998 F.2d 1256 (4th Cir. 1993), the Court noted that "[w]hile securities claims are often fact-specific and properly resolved by a jury, `summary judgment may be granted in appropriate cases.'" Id. at 1262 (quoting In re Apple, supra). In Judge Wilkins' words, used by him in the course of affirming in part and reversing in part the district court's grant of summary judgment, the trial court, of course, must draw "the most favorable inferences that may reasonably be drawn [in support of the non-movant] from the forecasted evidence," but genuine issues of material fact cannot be created "through mere speculation or the building of one inference upon another." Id. at 1260 (citations omitted). "The essence of the [summary judgment] inquiry [is] ... `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. (quoting Anderson v. Liberty Lobby, supra at 251-52, 106 S.Ct. at 2512.) The Fourth Circuit has carefully scrutinized claims of securities fraud brought by disappointed investors who have suffered losses in their investment strategies. See Gasner v. Bd. of Supervisors, 103 F.3d 351 (4th Cir.1996) (affirming summary judgment for defendants); Hillson Partners Ltd. Partnership v. Adage, Inc., 42 F.3d 204 (4th Cir.1994) (affirming dismissal), Raab v. General Physics Corp., 4 F.3d 286 (4th Cir.1993) (affirming dismissal). In Raab, for example, Judge Wilkinson pointed out that "[t]he market has risks; the securities laws do not serve as investment insurance. Every prediction of success that fails to materialize cannot create on that account an action for securities fraud." Id. at 291. In the light of the Trilogy and Fourth Circuit precedent, this Court will carefully evaluate all of the Bank's assertions in this case of disputed issues of alleged material fact, before determining whether summary judgment is or is not appropriate based on the proffered evidence in the record and upon any inferences which may reasonably be drawn in the Bank's favor from the proffered evidence. III Plaintiffs' Claims Under § 10(b) Section 10(b) prohibits the use of any manipulative or deceptive device or contrivance *507 in connection with the purchase or sale of any security. 15 U.S.C.A. § 78j(b). Rule 10b-5 further provides that it is unlawful to "make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading ... in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5 (1992). Plaintiffs appear to be proceeding under two § 10(b) theories: (1) fraud and (2) unsuitability of the investments. As will be discussed infra, the elements of those two claims are not dissimilar. A. Fraud To establish liability under Section 10(b), a plaintiff must prove several elements: "(1) the defendant made a false statement or omission of material fact (2) with scienter (3) upon which the plaintiff justifiably relied (4) that proximately caused the plaintiff's damages." Cooke v. Manufactured Homes, Inc., 998 F.2d at 1260-61 (4th Cir.1993) (other citations omitted). A plaintiff cannot recover if that plaintiff failed to exercise reasonable diligence to understand the nature of the investment. See Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413, 1418 (11th Cir.1983); Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977).[16] This Opinion will attempt to discuss each element individually, however, there is a certain degree of overlap. 1. False Statement or Omission of Material Fact Plaintiffs herein allege that defendants misled them with regard both to the risks of CMO investments in general and to the risks associated with the particular securities purchased. However, the record indicates that defendants disclosed certain risks of investing in CMO's — namely, coupon, price and liquidity risks. The disclosures made by Epley and Alex Brown were most clear with regard to the coupon (or yield) risk of CMO's in general. As noted supra, defendants provided, among other items, a pamphlet stating that inverse floaters "have the potential for significant yield volatility."[17] The July 22, 1992 letter from Epley to Buentello also acknowledged coupon risk. Finally, with each proposal they made, defendants typically provided yield matrices which demonstrated the potential impact of changes in interest rates on the yield of the security. Although plaintiffs contend that those tables were insufficient to make an informed investment decision — and that Alex. Brown and Epley could have made available more sophisticated information regarding potential yield — the Bank makes no allegation of any particular misstatement with regard to yield volatility. Furthermore, if the yield tables were inadequate, the Bank could easily have requested more detailed information from defendants. With respect to price volatility, defendants did disclose the risk that the price of the CMO's could drop. For inverse IO's, the MMAR Group Guide noted that "[p]rices of inverse IO's can be extremely volatile."[18] As for inverse floaters, defendants' disclosures included the July 22, 1992 letter to Buentello which stated that, "as with all fixed income securities, as interest rates rise and fall there is an inverse relationship as to price."[19] The Approval Memorandum, prepared with Epley's assistance, also acknowledged that risk, stating that "[l]ike all fixed rate securities there is an inverse relationship between interest rates and bond *508 price."[20] The Bank, along with its expert, James Midanek,[21] disputes the value of such general disclosures, claiming that they fail to identify the greater price sensitivity of inverse floaters in comparison to some other fixed income securities.[22] Defendants' expert, Michael Ferri, agrees that such statements alone do not specifically divulge the degree of price sensitivity of inverse floaters.[23] But even if those general disclosures were insufficient, the record contains other information which discloses the price sensitivity of the CMO's to changing interest rates. For example, in July 1993, prior to the Bank's purchase of any of the six securities primarily at issue herein, defendants provided the Bank with information about the price sensitivity of other inverse floaters and IO's vis-a-vis possible interest rate fluctuations.[24] That analysis indicated that a half percent (.5%) increase in the interest rate could cause the price of an inverse IO to drop 15.33% and that the same increase could cause a 3.75% drop in the price of an inverse floater. Given its investment experience, the Bank could and should have been able to infer from that data that a 1% rise in interest rates could cause an approximately 30% drop in price of the inverse IO as well as a 7% drop in the price of the inverse floater. The Bank contends that in addition to the information discussed above, the defendants had the ability to run and did, on at least one occasion, run other analyses which showed the magnitude of the price volatility risks inherent in the securities, yet failed to provide those results to the Bank.[25] There may also have been other analytical tools such as effective duration analysis or option adjusted spreads which could and would have indicated specific potential price changes. However, in the context of complex investments such as CMO-derivatives, a disappointed investor — particularly if such investor is as experienced as the Bank — looking backward through a 20-20 lens, can always point to more information, which, in hindsight, the investor believes would have better advised him or her of the potential risks. At most, Midanek's contentions suggest that defendants, in their disclosures, somewhat downplayed the risk of potential price volatility in the inverse floaters market. Midanek points to no affirmative misstatement in that regard, only to possible omissions.[26] Defendants' disclosures were perhaps weakest with regard to liquidity risk. The sample prospectus provided to the Bank alluded to liquidity risk using only boilerplate language. In addition, the Bank points to Epley's July 22, 1992 letter to Buentello which acknowledged the existence of liquidity risk, but downplayed it: "The problem now is lack of product. The demand currently far exceeds supply."[27] Midanek, in his expert report, contends that "[t]his is false, demand for inverse floaters never outstripped supply."[28] However, Midanek's statement, without more, is not sufficiently specific to create a disputed question of significant, material fact. Moreover, even if a reasonable jury could conclude that defendants conveyed *509 the thought to the Bank that liquidity risks were minimal, the Bank has shown nothing to indicate that either Epley or Alex. Brown knew any such statement to be false at the time Epley made it. Indeed, the record of the Bank's CMO trades from August, 1992 to the beginning of 1994, indicate that, during that period, the liquidity risks to the Bank, if any, were minimal. Rather, the Bank was able to sell the CMO's which it owned with little if any delay. It apparently was not until the market collapse in early 1994 that liquidity became a substantial problem. In light of the absence of liquidity problems for the Bank in the pre-collapse period, this Court does not need further to explore the Bank's assertion that the market was illiquid during that period.[29] Moreover, there is nothing in the record which indicates that defendants anticipated (or even should have anticipated), at least to a greater extent than the seeming majority of other investors and of the market itself, the dramatic decrease in liquidity which occurred in early 1994.[30] While Midanek takes the position that the increase in interest rates which occurred in late 1993 and 1994 was comparable to increases in interest rates over different periods during the past two decades, the collapse of the CMO market in early 1994, which was attributed, at least in part, to rising interest rates, apparently took many investors by surprise. As for the particular securities purchased by the Bank, five of the six CMO's at issue were inverse floaters. Plaintiffs have presented nothing to show that any of those five inverse floaters carried any particular risk, aside from the risks associated with inverse floaters in general. Those general risks have been discussed supra. Although, as plaintiffs note, each inverse floater is different and carries with it different risks, plaintiffs have shown nothing to indicate that any of those particular risks posed substantial problems for the Bank. The sixth security purchased by the Bank, FHR 1711, was an inverse IO and is separately discussed, infra, in the section of this Opinion relating to scienter. It is correct, as the Bank points out, that materiality of information is generally not resolved on summary judgment. TSC Indus. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2132-33, 48 L.Ed.2d 757 (1976); Cooke, 998 F.2d at 1262 (4th Cir.1993). However, summary judgment can be awarded in this case, without being so barred, because even assuming that there were one or more misstatements or omissions, and that said misstatements or omissions were material, the Bank would still have to prove the other elements of a § 10(b) action, including its own justifiable reliance and due diligence, which the record in this case discloses that the Bank has not done. 2. Scienter Scienter is defined as "a mental state embracing intent to deceive, manipulate, or defraud." Malone v. Microdyne Corp., 26 F.3d 471, 478 (4th Cir.1994) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976)).[31] As noted above, while scienter has traditionally been difficult to resolve on summary judgment, it may be granted in appropriate cases. See, e.g., In Re Apple Computer Sec. Litig., 886 F.2d 1109, 1113 (9th Cir. 1989). In Mayer v. Oil Field Systems Corp., 803 F.2d 749 (2d Cir.1986), the Second Circuit affirmed the entry of summary judgment *510 in a securities case involving Section 10(b), noting that proof of "[s]cienter requires at least knowing misconduct, which may, of course, be proven as a matter of inference from circumstantial evidence." Id. at 756 (citation omitted). However, the court continued: "[s]ummary judgment is appropriate when the nonmoving party has come forward with no evidence from which a reasonable fact finder could find that the defendant had the requisite state of mind." id.; see also Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449-50 (5th Cir.1993) (Goldberg, J.) (affirming grant of summary judgment where plaintiff failed to produce evidence creating a genuine issue of material fact as to scienter). The Bank has proffered little, if any, evidence to indicate that the defendants made the alleged misrepresentations or omissions in connection with the five inverse floater purchases at issue, with scienter. However, the Bank is apparently attempting to show scienter via an inference that the defendants charged excessive markups, which is discussed infra. In the case of the sixth security purchased by the Bank, FHR 1711, an inverse IO, in this Court's view, the Bank has failed to proffer any evidence of scienter. When the inverse floater market began to sour in early 1994, defendants sent the Bank a strategy letter, discussing three possible courses of action for the Bank to take in order to improve its position.[32] One of those strategies — and the one recommended by defendants — was to maintain the Bank's existing portfolio and purchase another security to "hedge" against a further increase in interest rates. Defendants suggested three potential types of hedging securities — "PAC IO's," "trust IO's" and "low leverage Inverse IO's."[33] The Bank followed that advice and, through Alex. Brown, purchased approximately $6.1 million worth of FHR 1711, an inverse IO, on March 30, 1994. As noted supra, the MMAR Group Guide disclosed that "prices of inverse IO's can be extremely volatile."[34] Moreover, Buentello has testified that "we understood [inverse IO's] to be very risky."[35] Plaintiffs' expert Midanek, however, contends that FHR 1711 "should not have been expected to act as a hedge" against rising interest rates and that "[b]ecause of their very structure, Inverse IO's generally do not increase in value in a rising interest rate environment."[36] Plaintiffs also argue that Epley and Alex. Brown mischaracterized the qualities of inverse IO's in order to obtain a high markup on their sale. Even if Midanek is correct about the characteristics of an inverse IO, plaintiffs have failed to show that defendants acted with scienter in connection with the Bank's purchase of this inverse IO. Defendants did not present inverse IO's as a guaranteed hedge against rising interest rates; in their strategy letter they state that trust IO's "offer the most effective hedge."[37] The undisputed proffered evidence indicates that defendants disclosed, and plaintiffs knew, that inverse IO's were a very risky investment and were not the best available hedge against rising interest rates, but that the Bank chose to invest in them nonetheless. Moreover, plaintiffs themselves note that the markup on trust IO's, which defendants presented as the most effective hedge against rising interest rates, likely would have been a mere fraction of the markup on inverse IO's.[38] The Bank chose to invest in inverse IO's, thus providing defendants with a larger markup than they would have earned had the Bank chosen to purchase trust IO's. Accordingly, the Bank's assertion that defendants recommended inverse IO's in order to gain a large markup is therefore speculative at best and is belied by the facts of the case. At most, plaintiffs have proffered evidence that Alex. Brown and Epley gave questionable investment advice, not that they intended to mislead the Bank. *511 3. Justifiable Reliance The third element of a Section 10(b) claim is justifiable reliance, which is often linked with a requirement of due diligence by the plaintiff. See Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.1977). Courts have precluded recovery by plaintiffs who failed to exercise reasonable diligence to understand the nature of their investments. See Thompson v. Smith Barney, Harris Upham & Co., Inc., 709 F.2d 1413, 1418 (11th Cir.1983); see also Platsis v. E.F. Hutton & Co., Inc., 946 F.2d 38, 41 (6th Cir.1991) (taking into account the level of sophistication of the investor in determining whether disclosure was adequate and whether the investor relied upon it), cert. denied, 503 U.S. 984, 112 S.Ct. 1669, 118 L.Ed.2d 389 (1992).[39] Therefore, in order to survive summary judgment, the Bank must demonstrate that it exercised due diligence and justifiably relied on the defendants' alleged misrepresentations and omissions. This case involves allegations of both misrepresentations and omissions of material fact. Where there is fraud by misrepresentation, the case law requires the plaintiff to establish justifiable reliance. See Myers v. Finkle, 950 F.2d 165 (4th Cir.1991). On the other hand, where the alleged fraud is in the nature of a failure to disclose information that a reasonable investor would consider significant, the test is somewhat different: "it may be inferred that the customer would have relied ... in the case of non-disclosure ... on the information had he known it." Carras v. Burns, 516 F.2d 251, 257 (4th Cir.1975) (citing Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972)). Such an inference is rebuttable, as Judge Butzner further made clear in Carras: "The broker, however, may rebut these inferences by proving lack of reliance and, consequently, a lack of causation." Carras at 257 (citation omitted). Moreover, in this Court's view, following Carras and giving the plaintiff the benefit of an inference of reliance does not eliminate the requirement that the plaintiff exercise due diligence prior to justifiably relying on the defendants' silence. In the instant case, the plaintiff is neither an individual investor nor a class comprised of individual investors, as is so in most reported cases alleging § 10(b) fraud. See, e.g., Myers v. Finkle, 950 F.2d 165 (4th Cir.1991). There appears to be little, if any, specific case law involving plaintiffs like the Bank. The distinction between an individual investor (or class of such) and an institutional investor would appear somewhat significant in determining whether the plaintiff has established the element of justifiable reliance, and its due diligence component. In cases involving individual investors alleging securities fraud, courts apply a multi-factor test to determine justifiable reliance. See Myers, 950 F.2d at 167 (4th Cir.1991); Zobrist v. Coal-X, Inc., 708 F.2d 1511, 1515-17 (10th Cir.1983). The factors include: (1) the sophistication and expertise of the plaintiff in financial and securities matters; (2) the existence of long standing business or personal relationships; (3) access to relevant information; (4) the existence of a fiduciary relationship; (5) concealment of the fraud; (6) the opportunity to detect the fraud; (7) whether the plaintiff initiated the stock transaction or sought to expedite the transaction; and (8) the generality or specificity of the misrepresentations. Myers, 950 F.2d at 167. When those factors are applied to the individual investor, all relevant factors must be considered to determine if reliance is justified — no "single factor" is dispositive. Id.; Zobrist, 708 F.2d at 1517. However, when the plaintiff is a large financial institution such as the Bank, the first factor, the sophistication and expertise of the plaintiff in financial and securities matters, is highly significant, and sometimes dispositive. See J.H. Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 998 (7th Cir.1980) ("The Evergreen Fund is a sophisticated investor very familiar with financial statements. Such an investor may not be as justified in relying on any material misrepresentations *512 or omissions of material facts as other purchasers of ... [the] stock.") The Fourth Circuit apparently has not addressed the issues of whether institutional investors are, as a matter of law, sophisticated, or how a finding of sophistication in connection with an institutional investor impacts the justifiable reliance and due diligence inquiries. Some commentators argue that there should be a presumption of sophistication in cases involving institutional investors.[40] However, in the within case, this Court will evaluate the Bank's sophistication before determining the defendants' liability, if any.[41] Defendants argue that the Bank was a sophisticated investor. In contrast, the Bank argues that it was unsophisticated, at least with respect to CMO investing. In plaintiffs' view, the very existence of that dispute precludes summary judgment. However, in light of the Trilogy decisions' requirement that a non-movant "do more than simply show that there is some metaphysical doubt as to the material facts," an analysis of the Bank's sophistication is both appropriate and necessary at this stage. See Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Evaluating investor sophistication leads necessarily to both subjective and objective inquiries which assess the characteristics of the plaintiff. Factors which courts sometimes analyze in determining sophistication include: wealth, age, education, professional status, investment experience and business background. Some or all of those factors, which are important in the context of the individual investor, Myers, 950 F.2d at 168, can apply to an institutional investor. In this case the Bank had been long in business; was possessed of more than minimum capital; and those Bank employees who were involved in this matter collectively possessed considerable experience and background in investing. Also relevant to consideration of the Bank's sophistication is its prior investment activities and its effort to understand the CMO investments.[42] By any standard, Banca Cremi is a substantial financial institution. During the period in question, the Bank had assets of approximately $5 billion and its annual operating income exceeded $36 million. In addition, the three individuals who were the Bank's main participants in the trades in question with Alex Brown, each had substantial experience in investments which were sensitive to interest and exchange rates. Armando Aguirre, Director of Banca Cremi's International Division, holds a degree in economics. Before joining Banca Cremi in 1981, Aguirre held a variety of positions in which his responsibilities included currency investments and the development of accounting systems. He also served as a part-time economics teacher. He joined Banca Cremi as a manager in its Foreign Exchange Department, and over the next several years he received a number of promotions. In 1985 he became Subdirector of Banca Cremi's New International Negotiations ("NNI") unit and in 1989 Director of its International Division. Jose Luis Mendez, Director of NNI, also holds a degree in economics. His responsibilities at the Bank have included *513 tracking U.S. interest rates and advising the Bank's Cayman Island branch on U.S. dollar denominated investment options. Monica Buentello, Assistant Director of NNI, holds a degree in international relations. While working at the Bank, she completed several post-graduate courses of study in international commerce and analysis. In 1993, she participated in at least two seminars on the subject of investing in derivatives and CMO's. The Bank now argues that Buentello's youth and inexperience raise questions as to the Bank's sophistication with respect to CMO's; however, while Buentello was defendants' principal contact at the Bank, she was not, as discussed, infra, acting without supervision. From 1992 to 1994, those three individuals, subject to the oversight of the Bank's Director of Finance and Treasurer, were responsible for hundreds of millions of dollars of international investments and other transactions.[43] The Bank, through its employees, therefore, had extensive experience in securities which were sensitive to interest and exchange rates. Although the Bank claims it was a novice in the CMO field, Buentello and Mendez each had attended seminars on the secondary mortgage markets. They could be expected to know, for example, that a multiplier would affect a particular inverse floater's sensitivity to interest rates. Perhaps most fundamentally, the complexity and uncertainty of certain types of derivatives were well-known in the investment community. Plaintiff's assert that the Bank's experience in some types of investments does not translate into experience in CMO investing. In McAnally v. Gildersleeve, 16 F.3d 1493 (8th Cir.1994), Judge Magill, for the majority, concluded that individual plaintiffs who "had significant experience and success with stocks and bonds" presented "sufficient evidence for a reasonable jury to have concluded that plaintiffs were not sophisticated with respect to commodity futures options." Id. at 1500. Judge Lay, disagreeing, dissented. Id. at 1501. Here, the plaintiffs point to a few statements which, they claim, indicate lack of comprehension by the Bank of basic principles of CMO investing.[44] Still, even if *514 those statements are viewed as evidence of unsophistication, they must be evaluated in the light of the overall circumstances, as discussed below. The defendants assert that the Bank began considering an investment in CMO's as early as the spring of 1992.[45] However, according to Buentello, the Bank had not considered CMO investments until Epley approached her superior, Aguirre, in June 1992.[46] For purposes of summary judgment the Court will accept the Bank's said version and assume that the Bank began considering CMO investments in June 1992. After that initial contact, and prior to beginning to trade, members of the NNI Group, to some extent assisted by Epley, drafted the Approval Memorandum, discussed it with the Bank's Director of Finance (Garcia) and its Treasurer (Pacheco), and ultimately sought and obtained authority to trade in CMO securities. Upon receiving that approval, on August 11, 1992 the Bank purchased its first CMO for approximately $5.4 million. Over the ensuing eighteen months, the Bank purchased a total of 29 CMO's, including the six at issue in this case, from the Defendants.[47] For over a year, the Bank's CMO trades were profitable — earning the Bank over $2 million.[48] During the period in which it traded in CMO's, the Bank had procedures in place to govern the purchase and sale of CMO's. Those procedures were ultimately formalized in a manual entitled "Policy and Procedures Manual for Purchase and Sale of Mortgage Bonds" ("Procedures Manual").[49] To purchase a CMO derivative, the Procedures Manual outlines a fourteen step process of which step three requires that the Bank perform an Investment Risk Analysis taking into account several factors.[50] In addition, the Procedures Manual makes it clear that each such transaction must be authorized by a superior.[51] The deposition testimony of Buentello, Aguirre and Mendez indicates that Buentello did obtain Aguirre's approval prior to conducting each purchase or sale of CMO's.[52] The record also indicates that, on at least some occasions, the Bank chose not to invest in Epley's proposals for CMO investment.[53] Thus, this was not a situation in which the Bank simply turned over its investment decisions to the defendants. Rather, the record shows that the Bank was an experienced, institutional investor which made its own individual investment decisions based on both information received from its brokers and its own business judgment. In M & B Contracting Corp. v. Dale, 795 F.2d 531 (6th Cir.1986), Chief Judge Lively rejected a Vice President of Finance's "protestations of ignorance about the market and his total reliance upon [the broker's] recommendations ... *515 Every trade made by [the broker] was approved by [the Vice President], and he generally did not approve transactions until he had obtained the approval of [the Chairman]. ... He may not have been an expert in the market, but he knew enough to know that trading on margin and in options was very risky." Id. at 533-34. The fact that the Bank, in hindsight, wishes it had investigated the potential risks more thoroughly before choosing to invest, does not cause this Court to agree that it can be reasonably found to be an unsophisticated investor. No reasonable jury, based on the record in this case, could, in the view of this Court, find that the Bank was an unsophisticated investor. See Cooke, supra, 998 F.2d at 1260 ("[t]he essence of the [summary judgment] inquiry ... is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'") (citation omitted). To conclude that the Bank was unsophisticated, or that on the basis of the circumstances presented in this case that there is even a material dispute as to the Bank's sophistication, would place too heavy a burden upon investment brokers such as Alex. Brown to supply its presumably sophisticated institutional clients with non-requested information, in order to protect themselves against lawsuits, such as this one, should an investment go sour. The defendants in this case, reasonably believed that, in Banca Cremi, they were dealing, at least to a considerable extent, at arms-length, with a sophisticated client. When dealing with such a customer, a broker's explanation of risks may appropriately be more general, than if the customer were inexperienced in financial matters. See Leib v. Merrill Lynch, Pierce, Fenner & Smith, 461 F.Supp. 951, 953 (E.D.Mich.1978) ("where the customer is uneducated or generally unsophisticated with regard to financial matters, the broker will have to define the potential risks of a particular transaction carefully and cautiously. Conversely, where a customer fully understands the dynamics of the stock market or is personally familiar with a security, the broker's explanation of such risks may be merely perfunctory.") aff'd 647 F.2d 165 (6th Cir.1981); State v. Morgan Stanley & Co., Inc., 194 W.Va. 163, 459 S.E.2d 906, 914 n. 17 (1995) ("[T]o say that Morgan Stanley could not reasonably have relied on [West Virginia's Associate Treasurer's and the Director of Investment's] undisputed and very earnest representations [of comprehension] ... is tantamount to confessing that West Virginia officials must at all times be treated as either children or incompetents. ... [C]ompetent adults who do not need to be led around on a leash do, occasionally, buy a piece or two of blue sky.") As indicated supra, some case law teaches that where there is an omission, in opposition to the claimed inference of reliance on that omission, there is somewhat more of a burden on the defendant to show that information was offered or available. But looking at this case from that view, it must be recognized that even if the defendants' offerings of additional information were not as specific as they could have been, such as "Would you like additional information on the potential price, yield or liquidity risks?," that lack of specificity does not preclude summary judgment because anyone experienced in dealing with brokers, particularly with brokers as established as these, would and should know that the defendants would promptly and readily make additional information available if the customer wanted it. Indeed, as Dean Robert Clark has observed: "Institutional investors are usually sophisticated and powerful enough to demand and get the information they need before committing their money. The legal system does not have to protect them with a superimposed mandatory disclosure system." Fletcher, Sophisticated Investors, supra, at 1153-54. Perhaps having anticipated the conclusion that the Bank was a sophisticated investor, the Bank argues that securities laws exist to protect even sophisticated investors from fraudulent misrepresentations — "the Securities Exchange Act is not intended to provide protection only for uninformed or unsophisticated investors ... [as `f]raud may also be perpetrated upon the powerful and the sophisticated.'" Carroll v. First Nat'l Bank, *516 413 F.2d 353, 357 (7th Cir.1969) (Cummings, J.) (plaintiffs were securities dealers who alleged a § 10(b) violation arising from fraudulent or misleading statements) (citation omitted), cert. denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970). However, it does not necessarily follow that each investor is as susceptible to fraud as any other.[54] As Chief Judge Irving Kaufman wrote: "[t]he securities laws were not enacted to protect sophisticated business [people] from their own errors of judgment. Such investors must, if they wish to recover under federal law, investigate the information available to them with the care and prudence expected from people blessed with full access to information." Hirsch v. du Pont, 553 F.2d 750, 763 (2d Cir.1977) (noting that the disappointed investors received all the information they requested). Having determined that the first, and, in the case of an institutional investor, probably the most significant factor, of the justifiable reliance inquiry goes against the Bank, the Court will briefly address the other factors. The Bank argues that the relationship between Epley and Buentello was such that it led the Bank to rely on his recommendations.[55] However, that assertion must be considered in the context of the proffered evidence in the record which shows that the Bank was frequently solicited by other brokers competing with Alex. Brown for the Bank's CMO business.[56] Those solicitations included materials, such as the Pinocchio article in Barron's mentioned above, which detailed the potential rewards and the potential risks associated with investing in CMO's. Moreover, the Bank's own documents reveal that it's employees were authorized to invest with several firms in addition to Alex. Brown.[57] Indeed, on at least one occasion, Buentello's superiors instructed her to deal with a broker other than Alex. Brown.[58] That she selected the other firm, Southwest Securities, based apparently, at least in part, on defendants' recommendation does not negate the intention of her superiors. As indicated above, the Bank received information about CMO investment opportunities from both the defendants and other brokers. That strongly suggests that if the Bank had desired additional information which it believed was relevant to its investment decision, it would certainly have had access to such information, either from Alex. Brown or its competitors. However, on this issue, the Bank claims its reliance on the defendants for information was justifiable by pointing to a statement made by the defendants that the Bank relied upon them to provide analytical information regarding "new issue" securities.[59] But, defendants' statement does not eliminate the Bank's obligation to exercise due diligence in determining if the analytical information provided to it was sufficient to inform its decision to invest. Moreover, there is no indication in the record that the Bank ever requested such analyses from defendants in addition to the information already provided, thereby conveying the message to the defendants that the Bank was satisfied with the level of information supplied. See Martin v. Steubner, 485 F.Supp. 88, 92-93 (S.D.Ohio 1979), aff'd, 652 F.2d 652 (6th Cir.1981), cert. denied, 454 U.S. 1148, 102 S.Ct. 1013, 71 L.Ed.2d 302 (1982). The defendants do not appear in any way to have concealed or precluded any opportunity to detect the alleged fraud in this case. In Epley's written response to the Pinocchio *517 article, for example, he addressed the Bank's concerns, albeit downplaying the risks. Moreover, the exercise of due diligence by the Bank would have further revealed the extent of the risks of CMO investing, even if the defendants' actual disclosures and statements did not adequately do so. In the instant case, the record does not specify which side initiated each of the transactions at issue. It is clear, however, that on each occasion, the final decision to invest was made by employees of the Bank. Finally, with regard to the generality or specificity of the alleged misrepresentations or omissions, in the instant case, the thrust of plaintiffs objections to the defendants' statements appear to be that those statements were erroneous and misleading because they were too general. For example, plaintiffs object to certain general statements made by defendants as to the low amount of risk involved. The Approval Memorandum, for example, states that inverse floaters carry "relatively low risk levels."[60] However, in view of the complex nature of the securities at issue and the Bank's duty of reasonable diligence, such general statements, even if erroneous, would not appear to be sufficiently out-of-line so as to counter the Bank's sophistication. In conclusion, if the Bank, in anticipation of investing tens of millions of dollars in CMO's, believed that defendants' disclosures with regard to coupon, price volatility or liquidity risk, or any other risk, were insufficient, it should and could have exercised reasonable diligence to learn more. Having failed to proffer evidence that it did so — or how it did so — the Bank's claim of securities fraud necessarily fails. 4. Proximate Cause The fourth element of a Section 10(b) claim which the Bank must prove is that the alleged misrepresentations and omissions were a proximate cause of the Bank's damages. The defendants argue that the losses were caused by unforeseen market events (namely the Spring 1994 collapse of the CMO market), whereas the plaintiffs claim the losses arose as a result of the realization of nondisclosed risks inherent in the securities. In view of the Bank's failure to establish one or more of the elements required to satisfy Section 10(b), including justifiable reliance, this Court need not address in any great detail the issue of what caused the Bank's losses. While that disagreement between the parties may, perhaps, as plaintiffs urge, constitute a disputed factual issue, it is not a material one under the circumstances of this case, and therefore, it does not preclude summary judgment for the reasons stated above. In conclusion, with respect to the alleged fraud, plaintiffs may have proffered evidence that defendants understated the extent of some of the risks, and that, in a few particular instances, that defendants supplied the Bank with inaccurate or incomplete information which tended further to understate the risks. However, those particular instances of misstatements must be viewed in the context of the other — and many — accurate disclosures made by defendants and the sophistication of the Bank. Thus, even if factual disputes exist as to whether defendants misled the Bank or omitted information, the Bank, particularly in view of its sophistication and experience, is precluded in those regards, in this case, from recovery as a result of its failure to exercise reasonable diligence to understand the nature of its investments — if indeed the Bank did so misunderstand — which this Court greatly doubts. B. Unsuitability To prove a claim of unsuitability under Section 10(b), a plaintiff must show: "(1) that the securities purchased were unsuited to the buyer's needs; (2) that the defendant knew or reasonably believed the securities were unsuited to the buyer's needs; (3) that the defendant recommended or purchased the unsuitable securities for the buyer anyway; (4) that, with scienter, the defendant made material misrepresentations (or, owing a duty to the buyer, failed to disclose material information) relating to the suitability of the securities; and (5) that the buyer justifiably relied to its detriment on the defendant's fraudulent conduct." Brown v. E.F. *518 Hutton Group, Inc., 991 F.2d 1020, 1031 (2nd Cir.1993). Sophisticated investors have difficulty establishing suitability claims. See, e.g., Xaphes v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 632 F.Supp. 471, 481-483 (D.Me. 1986). Also, since the record indicates that the Bank directed the purchases, the transactions may well be excluded from the suitability requirement. See Associated Randall Bank v. Griffin, Kubik, Stephens & Thompson, Inc., 3 F.3d 208, 212 (7th Cir.1993) (applying Wisconsin law). As Judge Easterbrook indicated in Associated Randall Bank, "[f]ederal securities law also requires brokers and dealers acting as agents to procure `suitable' securities. But federal law requires this only when the agents exercise discretion over the accounts. Customer-directed transactions fall outside the `suitability' requirement." Id. at 212. However, even if the Bank is able to invoke the suitability doctrine, such a claim may not succeed in this case since "[a]nalytically, an unsuitability claim is a subset of the ordinary § 10(b) fraud claim." Brown, 991 F.2d at 1031. Accordingly, for the same reasons which cause plaintiffs' fraud claim to fail, plaintiffs' unsuitability claim also fails, regardless of whether the investments were suitable for the Bank. Thus, even though a factual dispute may exist as to whether the Bank fully communicated its conservative investment criteria to defendants and even though the CMO purchases made by the Bank might not have met each of those criteria, because the Bank has not shown justifiable reliance in connection with any alleged misstatement or omission, the Bank cannot recover for unsuitability. C. Markups[61] The Bank additionally alleges that the defendants fraudulently charged excessive markups and failed to disclose the amount of the excessive markup taken on each transaction in violation of section 10(b). In Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 835 F.2d 1031 (3d Cir.1987), Judge Seitz wrote: The SEC has established through its enforcement actions the principle that charging undisclosed excessive commissions constitutes fraud. This fraud is avoided only by charging a price which bears a reasonable relation to the prevailing price or disclosing such information as will permit the customer to make an informed judgment upon whether or not he will complete the transaction. Id. at 1033 (citations omitted) (internal quotation marks omitted). With respect to the issue of excessive markups, the Bank apparently is going beyond the six securities primarily at issue herein, and claiming that some 19 CMO transactions carried excessive markups.[62] Even if they were excessive, those markups, of course, do not constitute a proximate cause of any investment losses, as such, by the Bank. But, the Bank could still independently recover for an excessive markup. The defendants do not dispute that the markups in connection with these transactions were not disclosed. However, the Bank's claims of excess are rather fatally undercut by the undisputed proffered evidence that, as a matter of general policy, the Bank did not inquire about, or express any concern about the amount of any markups. According to the deposition testimony of Aguirre and Mendez, so long as the Bank believed the total price of an investment transaction was acceptable, the amount of the broker's markup was not a consideration in its decision to invest.[63] Indeed, the deposition testimony of the Bank's expert was that it is not customary in the industry for broker-dealers to disclose the amount of markups *519 or markdowns.[64] It would be unfair to the defendants, in the light of the record in this case, to allow the Bank now to claim that the amount of the markups was material, when during the time of the transactions, the Bank, according to the deposition testimony of its employees, did not proceed as though they were. What the Bank appears to urge is that the markups were fraudulently excessive in and of themselves. A markup is only excessive if it does not bear a reasonable relationship to the prevailing market price. See, e.g., Ettinger, supra, 835 F.2d at 1033. Each trade, at least to a great extent, must be treated separately in determinations of excessive markups: "[The brokers] argue that markups on individual transactions are irrelevant; instead, they suggest that average markups per customer should be examined. This suggestion would result in an administratively cumbersome and unworkable rule and is not consistent with well-established law."[65]F.B. Horner & Assoc., Inc. v. S.E.C., 994 F.2d 61, 63 (2d Cir.1993). This Court agrees that relying solely on averages is unwise, but that does not, in this Court's view, mean that some consideration of averages, in some instances, may not provide one of the guiding factors in determining if a markup is excessive. The excessive markups alleged herein by the Bank range from 1.78% to 5.25%, with a weighted average of 2.78%.[66] In connection with markups, the National Association of Securities Dealers (NASD) has indicated a 5% Guideline or Policy as a standard for the industry as a whole, while also noting that under certain conditions a markup over 5% may be justified, but that under certain other circumstances a markup of 5% or lower may not be justified. See First Indep. Group, Inc. v. S.E.C., 37 F.3d 30, 32 (2d Cir.1994) ("In general, markups in excess of 5% of the prevailing market price are not justified.") (citing NASD Rules § 4, Interpretation of the Board of Governors — NASD Markup Policy); 4 ALAN R. BROMBERG & LEWIS D. LOWENFELS, BROMBERG & LOWENFELS ON SECURITIES FRAUD AND COMMODITIES FRAUD at § 15.10(500) (1994). In litigated cases, the SEC apparently has not concluded that markups or markdowns of less than 4% are excessive, and has not deemed markups or markdowns of less than 7% to be fraudulent.[67] In the instant case, only three of the markups were over 4%, including one markup at 4.99% (yielding markup revenue of $6,036), and two at 5.25% (yielding markup revenue of $595 and $43,467), and none of them exceeded 7%. Among the factors considered by the NASD in determining the reasonableness of markups is the amount of money involved in a transaction — "[a] transaction which involves a small amount of money may warrant a higher percentage of markup to cover the expenses of handling." Id. (quoting NASD Markup Policy, NASD Manual CCH ¶ 2154.) In the within case, the three highest markups yielded three of the four lowest revenues, indicating that in the context of the pattern of trading going on, they involved small amounts of money. Plaintiffs' proffered evidence that the markups were excessive seems to consist primarily of Midanek's opinion, namely, that in his view, "it is difficult to conceive of any service that would help justify markups larger than one percent."[68] That view, however, would not seem consistent with a recent decision of the NASD in which the NASD's National Business Conduct Committee declined to penalize brokers who charged markups and markdowns of up to 4.7% on CMO-derivative products.[69] Apparently the National Business Conduct Committee felt it could not "conclude that [the brokers] fraudulently *520 charged markups or mark-downs unreasonably in excess of prevailing market prices in view of the dearth of NASD and SEC guidance regarding markups in CMO-derivative products, the lack of persuasive evidence regarding industry standards and practice, and the fact that this was a relatively new type of security for which industry experience was evolving."[70] While this Court is not bound by the National Business Conduct Committee's conclusion, it does note that one of the investment industry's internal governing bodies apparently could not determine the appropriate prevailing market price for CMO-derivatives during this period. One of the allegedly excessive markups merits further discussion — the 5.25% markup which yielded $43,467. Defendants' expert has conceded that he could not find justification for that markup.[71] However, the record does not contain any detailed facts concerning how the markups were established, in connection with that or any other transaction in this case. Accordingly, while the $43,467 markup provides good cause for the raising of eyebrows, this Court, without any evidence of the facts of that transaction, the complexity or difficulty of it, the amount of work performed by the brokers in connection with it, etc., is not able to determine that it is excessive. After all, the burden is on the Bank to prove excess — and the amount of excess — and that the Bank has just not done — unless the $43,467 figure itself or a 5% or less percentage guideline suffices — an arbitrary type of approach which this Court declines to follow, particularly in the light of the course of dealing between the parties and the fully undisputed fact that the Bank never inquired about or indicated the slightest dissatisfaction with any markup charged by defendants. Indeed, the Bank was seemingly totally satisfied with all of the arrangements between broker and customer, as long as the investments in question were flying high. Accordingly, this Court concludes that there is insufficient reason to deny summary judgment as to the issue of excessive markups. D. Circular 292 There appears to be a factual dispute as to whether Epley told Bank officials that any of the investments in issue in this case could not be used to meet a Mexican regulation (known as Circular 292), which required that at least 15 percent of a Mexican bank's liabilities be invested in highly liquid securities with terms which matured in one year or less. Epley met with officials of the Bank of Mexico to determine whether the CMO's met Circular 292 and has stated that he learned that the CMO's did not. Epley says that he then informed Bank officials, including Buentello, of that fact, but Buentello says Epley never gave her any such information. An omitted fact is material "if there is a `substantial likelihood that disclosure would have been viewed by the reasonable investor as having significantly altered the total mix of information available.'" In re Delmarva Securities Litigation, 794 F.Supp. 1293, 1302 n. 10 (D.Del.1992) (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976) (applying different section of the Securities Exchange Act dealing with proxies)) (internal quotations marks omitted). In this case, plaintiffs have offered affidavits indicating that the Bank told defendants of the importance that the Bank's investments meet Circular 292, so the alleged omission would appear to be at least arguably material. The Bank, however, has offered nothing to indicate that it encountered any problems with Mexican law or Mexican regulatory officials as a result of any failure to comply with Circular 292. At most, any lack of disclosure by defendants as to Circular 292 would seem relevant to this case only insofar as it might have affected the Bank's understanding of the CMO's in which it invested. In any event, in order to recover under section 10(b), the Bank, as discussed supra, must have exercised reasonable diligence to understand the nature of its investments. As a large, sophisticated financial institution, the Bank had the resources to find out whether the CMO's met the Circular 292 *521 criteria. Buentello stated that she knew Epley was meeting with officials from the Bank of Mexico. The record, however, contains no indication that Buentello or anyone else at the Bank asked Epley about the results of the meeting. If the information was important to the Bank — as the Bank now claims it was — Bank officials should and could have asked Epley about it or should and could themselves have made some additional inquiry with Mexican officials. IV The Bank contends, under Count VII, that Alex. Brown is liable as a controlling person pursuant to Section 20(a) of the Securities and Exchange Act. 15 U.S.C.A. § 78t(a). Section 20(a) provides that "[e]very person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable." Id. That ground for relief is without merit in view of this Court's grant of summary judgment, even if Alex. Brown were a controlling person. V Plaintiffs' state law claims[72] A. Alleged Violation of Maryland Securities Act In Count II plaintiffs allege violations by both defendants of the Maryland Securities Act, MID.CODE ANN., CORPS. & ASS'NS § 11-302(c). That statute prohibits misrepresentations "in dealings with advisory clients." The definition of "investment advisers" expressly excludes a "broker-dealer or its agent whose performance of [advisory] services is solely incidental to the conduct of his business as a broker-dealer and who receives no special compensation for them." § 11-101(f)(2)(iv). Maryland courts do not appear to have construed that sub-section, but the definition seems to exclude defendants from the coverage of the Act. Neither Alex. Brown nor Epley received any "special compensation" from the Bank for advisory services other than services which they provided as part of their work as broker-dealer. B. Alleged Common Law Violations Plaintiffs also contend that Alex. Brown and Epley are liable to the Bank under the common law theories of breach of fiduciary duty, negligence, negligent misrepresentation and fraud. The parties disagree as to which jurisdiction's substantive law governs those common law claims. There appear to be four possibilities: Texas, Maryland, Mexico and the Cayman Islands. The Bank argues that Texas law governs because that is where it claims that the alleged misrepresentations were made by Epley. In contrast, the defendants assert that the substantive law of Maryland governs the claims because some of the securities and accounts were purchased and/or maintained and serviced in Maryland. A third possibility, which is recognized as such by both sides, is the law of Mexico, the primary place where the Bank received the alleged misrepresentations and subsequently felt the alleged loss. A fourth possibility, which was not raised by either party, is the law of the Cayman Islands where one of the plaintiffs (Banca Cremi Grand Cayman) was located, and, therefore, where that plaintiff may have suffered its claimed losses. The parties have not discussed, or in any significant way cited to, the substantive law of Mexico or of the Cayman Islands in their voluminous filings. The record in this case indicates that this Court specifically called attention to and requested that counsel address the issue of Mexican law, if either side took the position that the alleged torts took place in Mexico. Plaintiffs have taken the position that if Texas law does not govern, Mexican law is the best alternative.[73] However, *522 plaintiffs did not brief the substance of Mexican law as it would apply to the instant case. The defendants mentioned a general principle set forth in the Civil Code for the Federal District of Mexico which they believe would preclude recovery on the common law claims.[74] However, as indicated in the language in footnote 74, that provision of Mexican law is most general and provides little guidance. Federal Rule of Civil Procedure 44.1 governs the determination of foreign law; however, that Rule is silent as to the effect of failure to prove the substance of foreign law. Although the excellent counsel in this case have provided this Court with considerable legal analysis concerning most of the issues presented herein, they have provided little along those lines in connection with Mexican law, and nothing with respect to Cayman Islands law. That may well be due to the absence of legal precedent in those jurisdictions. In sum, this Court is satisfied that this Court and counsel have adequately explored the foreign law issue. In Corporacion Venezolana de Fomento v. Vintero Sales Corp., 452 F.Supp. 1108 (S.D.N.Y.1978), the court wrote: "the parties have not sought to prove Venezuelan law ... or asserted that it is in conflict with the law of New York. The Court itself is not obligated, under Rule 44.1, to take judicial notice of foreign law." Id. at 1112 n. 3, remanded by unpublished table decision, 607 F.2d 994 (2d Cir.1979).[75] Instead, this Court will assume that the law of both Mexico and Cayman is substantially the same as the law of either Maryland or Texas or federal law. See Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 730 (D.Conn.1979) ("Neither party ... has briefed or produced evidence of the substance or effect on this case of the Netherlands law. Under such circumstances, the court will assume that the law of the Netherlands is the same as the law of Connecticut."); see also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE §§ 2447 (1971) ("[Where] foreign law cannot be ascertained ... [t]he court might well reconsider its initial decision that foreign law is controlling and decide instead to apply domestic law.") This Court is obligated to follow Maryland's choice of law rules in determining which jurisdiction's substantive law applies to the Bank's state law claims in this case for breach of fiduciary duty, negligence, negligent misrepresentation and common law fraud. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). For tort claims such as those, Maryland applies the lex loci delecti doctrine, i.e., it applies the law of the jurisdiction where the alleged wrong occurred. See Nugent v. Curry, 908 F.Supp. 309, 311-12 (D.Md.1995) (citing Ward v. Nationwide Mut. Auto Ins. Co., 328 Md. 240, 244 n. 2, 614 A.2d 85 (1992); Hauch v. Connor, 295 Md. 120, 123-24, 453 A.2d 1207 (1983)); White v. King, 244 Md. 348, 352-55, 223 A.2d 763 (1966). It appears that Maryland courts have not yet specifically spoken as to the issue of where the "wrong" occurs in cases of pecuniary injury resulting from fraud, negligent misrepresentation or commercial negligence, when the alleged wrongful act or omission occurred in one jurisdiction and the "loss" by plaintiff in another jurisdiction. Where the Maryland courts are silent or non-specific as to the applicable rule, "this court must apply a rule which it reasonably believes would be adopted by the highest Maryland court were it to rule on the question." Uppgren v. Exec. Aviation Serv., Inc., 326 F.Supp. 709, 711 (D.Md.1971) (citing *523 Debbis v. Hertz Corp., 269 F.Supp. 671 (D.Md.1967)). In Santana, Inc. v. Levi Strauss & Co., 674 F.2d 269 (4th Cir.1982), the Fourth Circuit faced a similar situation when reviewing a case involving the forum state of North Carolina. Santana involved multi-state misrepresentations; the forum state (North Carolina) adhered to the doctrine of lex loci delecti but had not indicated how that doctrine would apply in a misrepresentation case. In Santana, Judge Chapman approached the problem by evaluating both the traditional lex loci delecti doctrine (which he described as the "place of injury") and the more modern approach set forth in the Restatement (Second) Conflicts of Laws § 148 (1971). Id. at 273. The Restatement (Second) approach in fraud and misrepresentation cases involves determining which state had the "most significant relationship to the occurrence giving rise to the suit." Id. at 273.[76] Maryland has, to this date, refused to apply the Restatement (Second) approach in any torts conflicts context, at least as to the general principles it sets forth in § 145.[77]See Hauch v. Connor, supra, at 123, 453 A.2d 1207 ("With regard to torts conflicts principles, we reject the position of the Restatement and adhere to the rule that the substantive tort law of the state where the wrong occurs governs.")[78] Accordingly, it appears reasonable for this Court to believe that the highest court of Maryland would adhere to lex loci delecti in multi-state misrepresentation cases over the "most significant relationship" approach. However, questions still remain in the within case with respect to the application of lex loci delecti. For instance, is the place of the wrong the place of the injury (apparently Texas where the alleged misrepresentations or other wrongful acts took place) or the jurisdiction where the loss was felt (presumably where the Bank was located)? An examination of the use of lex loci delecti in other multi-state tort contexts provides some guidance. For instance, in a wrongful death action, the Fourth Circuit, applying Maryland's choice of law rules, has determined that it is the law of the place of injury, not that of the place of death (loss) which governs. See Farwell v. Un, 902 F.2d 282, 286-87 (4th Cir.1990). Thus, Farwell suggests that the law of Texas would control in the instant case. The Bank argues that an appropriate analogy can be drawn from claims arising from personal injury torts. For example, in Sacra v. Sacra, 48 Md.App. 163, 167, 426 A.2d 7 (1981), a case involving an automobile collision in Delaware which propelled one of the vehicles over the Maryland state line and into a Maryland-located utility pole, the Court of Special Appeals of Maryland concluded that the substantive law of Delaware governed since "[t]he fact that the state line intervened between the impact and death *524 was merely a fortuitous situation," id. at 166, 426 A.2d 7, and "it was only because of the harm in Delaware that the appellant has any claim." Id. at 167, 426 A.2d 7. Relying on that personal injury approach, the Bank argues that Texas law should apply because the wrongful conduct which caused the Bank's injuries, i.e., the alleged misrepresentations and omissions by Alex. Brown and Epley, occurred primarily in Texas.[79] Defendants dispute the relevance of automobile accident cases in a case like this one, and instead, urge the Court to look to the case law of other jurisdictions which have applied the doctrine of lex loci delecti in the context of alleged multi-state misrepresentational torts. Some of the cases upon which defendants rely express the view that the place of the wrong is not the place where the alleged misrepresentations were made, but rather the place where the plaintiff suffered the loss as a result of the misrepresentations. See, e.g., Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956) ("the place of the wrong is not where the fraudulent statement was made, but where the plaintiff, as a result thereof, suffered a loss"); Hester v. New Amsterdam Cas. Co., 287 F.Supp. 957, 972 (D.S.C.1968) ("In the case of fraudulent misrepresentation the law of the place of the wrong ... is not where the misrepresentations were made but where the plaintiff as a result of the misrepresentation suffered a loss.") aff'd in part, 412 F.2d 505 (4th Cir.1969). In the instant case, if the place of the loss controls, the law of Mexico or of Cayman would apply and that, as discussed, supra, would lead, in the context of the record in this case, to this Court applying the law of the forum state, Maryland. Thus, in the absence of anything like complete guidance from the Maryland courts, this Court, in determining which law to apply in this case where the loss may have been experienced in a state other than the state in which some of the alleged misrepresentations or omissions occurred, faces a rather difficult exercise. However, it appears, in common sense, that the law to utilize is that of Texas. Accordingly, this Court will discuss the four claims of plaintiffs under Texas law, pointing out differences from the law of Maryland, if any. 1. Breach of Fiduciary Duty Under Texas law, a claim for breach of fiduciary duty has three elements: (1) the existence of a fiduciary duty owed to the plaintiff; (2) a breach of that duty; and (3) that breach was the proximate cause of the damage to the plaintiff. See Duncan v. Lichtenberger, 671 S.W.2d 948, 953 (Tex.App. 1984). The Bank's within claim fails on the first element. Under certain circumstances, the relationship between a securities broker and its customer can be that of principal and agent, thereby creating a fiduciary duty. See Magnum Corp. v. Lehman Bros. Kuhn Loeb, Inc., 794 F.2d 198, 200 (5th Cir.1986). However, the record in this case shows that the relationship between the Bank and the defendants was not that of principal and agent. Rather, the Bank and the defendants dealt at arms length, in a principal to principal relationship. See Aguirre Dep. at 84-86; Mendez Dep. at 55-57. As discussed supra, the record indicates that the Bank made independent decisions about its investments and did not surrender control of its accounts to the defendants. See Rauscher Pierce Refsnes, Inc. v. Great Southwest Savings, F.A., 923 S.W.2d 112, 116 (Tex.App.1996) (written agreements specified that broker would be "exclusive agent" of customer). As the Bank is unable to establish the first element of the breach of fiduciary duty claim, that claim fails. The Bank fares no better under Maryland law. See First Fed. Sav. & Loan v. Equitable Bank, 1988 WL 167703 at *7 (D.Md.1988). (Harvey, C.J.). 2. Negligence To prevail in connection with the negligence claim under either Texas or Maryland law, the Bank needs to show the following elements: 1) legal duty owed by the defendants to the Bank; "2) breach of that duty; and 3) damages proximately resulting *525 from the breach." See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); see also Jacques v. First Nat'l Bank, 307 Md. 527, 531, 515 A.2d 756 (1986). The Bank cites two cases which it argues makes the defendants liable under Texas law. In Rauscher, supra, the Court of Appeals of Texas, observed that a broker is "bound to disclose to his employer all material facts within his knowledge affecting any transaction." Rauscher, 923 S.W.2d at 115 (Tex. App.1996). Similar language is found in the other case mentioned by plaintiffs, Magnum, which states that "[t]he law imposes upon the broker the duty to disclose to the customer information that is material and relevant to the order." Magnum, supra at 200. However, neither of those cases requires denial of summary judgment under the circumstances of the within case. In Rauscher, the broker was the "exclusive agent" of the customer, and thus his duty to disclose facts arose out of his fiduciary obligation to the customer — an obligation which did not exist in the light of the record in the within case. See Rauscher, 923 S.W.2d at 114. In Magnum, the scope and duration of the broker's duty was limited to the time needed to execute the customer's order. Id. at 200; see also Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F.Supp. 107, 111 (N.D.Ala. 1971) ("The relationship of agent and principal only existed between plaintiff and defendant when an order to buy or sell was placed, and terminated when the transaction was complete. That is, defendant was a broker and nothing more.... The result is that at the time of the acts complained of ... there was no `fiduciary relationship' between the parties."), aff'd, 453 F.2d 417 (5th Cir.1972). Accordingly, the negligence claim fails under Texas law. In addition, unlike Texas, which has adopted the comparative negligence approach, Maryland continues to recognize the doctrine of contributory negligence. See Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 463, 456 A.2d 894 (1983). Under that doctrine, even if the defendants were negligent — which this Court doubts they were — the Bank, in light of its sophistication and in view of the uncontroverted facts in this case, would seem precluded under Maryland law from recovery based upon what this Court views as its contributory negligence. 3. Negligent Misrepresentation The Bank's negligent misrepresentation claim fails under Texas and Maryland law because one of the elements of the claim under either state's law is justifiable reliance. See Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex.1992); Doe v. Prudential Ins. Co., 860 F.Supp. 243, 253 (D.Md. 1993) (citing Gross v. Sussex, Inc., 332 Md. 247, 259, 630 A.2d 1156 (1993)). As discussed supra, the plaintiffs have failed sufficiently to demonstrate justifiable reliance. Accordingly, that claim lacks merit. 4. Fraud The common law fraud claim fails for the same reasons the federal fraud claim failed, i.e., the Bank's federal fraud claim does not prevail, and neither can its state law claim.[80] The elements of fraud under Texas law are very similar to the federal 10b-5 elements. To prevail, a plaintiff must show: 1) "a material representation was made;" 2) it was false; 3) when he made it, the speaker "knew it was false or made it recklessly, without any knowledge of its truth and as a positive assertion;" 4) it was made "with the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it; and 6) that he thereby suffered injury." See Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983). Under Maryland law, the plaintiffs must show, inter alia, justifiable and actual reliance upon a misrepresentation. See Smith v. Rosenthal Toyota, Inc., 83 Md.App. 55, 60, 573 A.2d 418 (1990), cert. denied, 320 Md. 800, 580 A.2d 219 (1990). That, plaintiffs, as discussed supra, have failed sufficiently to submit or proffer. VI Conclusion For the reasons set forth in this Opinion, defendants' motion for summary judgment is *526 hereby granted. Judgment will be entered for defendants in a separate Order of even date herewith. JUDGMENT ORDER Judgment is hereby entered for defendants in this case in connection with each and all of plaintiffs' claims herein. NOTES [1] This Court notes that the Bank proposes two damages figures ($23,355,920 and $21,837,446) using different calculation methods. However, given the outcome of this case, the Court does not need to inquire into that variation. [2] MMAR Group is not a party to this case. Epley began working for Alex. Brown in April, 1993. However, Alex. Brown does not attempt to isolate the communications made by Epley during his employment with MMAR Group from those he made while he worked for Alex. Brown. "[A]ll that defendants had disclosed, and all that Banca Cremi learned and did regarding CMOs before August 30, 1993, is germane to the issues of disclosure, suitability and sophistication." Mot. for Summ.J. at 28. Accordingly, this Court will treat Epley's pre-Alex. Brown communications to the Bank as continuing into his employment with Alex. Brown. [3] MMAR Group Guide at 16. [4] MMAR Group Guide at 17. [5] MMAR Guide to Inverse IO's at IE 000142. [6] The Bank neither requested nor received from defendants any prospectus discussing any of the particular securities which the Bank purchased. [7] Letter from Epley to Buentello of 7/22/92 at 1. [8] According to Jose Luis Mendez, one of the Bank's employees, that article was sent to the Bank by Prudential Securities, which had over $100 million invested in Banca Cremi CDS, out of concerns for the Bank's solvency in light of its investments in CMO's. Mendez Dep. at 98-100. [9] Mot. for Summ.J. at Ex. 17. [10] Letter from Epley to Buentello and Mendez of 1/21/93. [11] See Samuel Issacharoff and George Loewenstein, Second Thoughts About Summary Judgment, 100 YALE L.J. 73, 77 (1990) (hereinafter "Second Thoughts") ("From its inception, federal judges treated summary judgment warily, perceiving it as threatening a denial of such fundamental guarantees as the right to confront witnesses, the right of the jury to make inferences and determinations of credibility, and the right to have one's cause advocated by counsel before a jury.") [12] See Steven Alan Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987). [13] Second Thoughts at 93. [14] That study revealed that summary judgment was entered in favor of defendants in 64 cases, denied in 13 cases, with no cases granting summary judgment on behalf of plaintiffs. See Second Thoughts at 92 n. 106 (citation omitted). [15] Second Thoughts at 84. [16] The Second Circuit has not established due diligence as a separate element of a 10(b) action but instead, apparently, has connected diligence to reliance. Royal American Managers, Inc., v. IRC Holding Corp., 885 F.2d 1011, 1015-16 (2d Cir.1989). The Fourth Circuit does not appear precisely to have considered the question of how the requirement of due diligence fits into the analytical scheme. But in any event, the case law is clear that a plaintiff must show that it exercised reasonable diligence in order to recover in a 10(b) action. [17] MMAR Group Guide at 16. [18] MMAR Group Guide at 17. [19] Letter from Epley to Buentello of 7/22/92 at 1. [20] Approval Memorandum at BC001981. That document appears to be referring only to inverse floaters. [21] The Court notes that Defendants object to the use of Midanek's testimony and report. See Defs' Mot. to Strike Test. and Report of James I. Midanek. However, taking the proffered evidence in the light most favorable to the nonmoving party, as is usually proper in a summary judgment context, this Court has considered Midanek's views despite Defendants' objections. [22] Midanek Report at 17-18. [23] Ferri Dep. at 290-91. [24] See Mot. to Strike Pls.' Supp.Memo. Re: Expert Test., Ex. B at BC002566. [25] Pls.' Post-Hearing Brief at 6. [26] The Bank also seems to be suggesting that defendants did not disclose the risk to the capital of the Bank. Capital risk would seem to be largely indistinguishable from price risk; if the Bank buys at $100 and then sells at $50, it has lost some of its capital. The Bank notes — and defendants revealed — that the U.S. government guarantees both the price of the bond and the interest rates, unless the holder sells before maturity. Obviously, if an investor decides to sell before maturity, as did the Bank, it receives the price it obtains on the market. [27] Letter from Epley to Buentello of 7/22/92 at 2. [28] Midanek Rep. at 18. [29] This case is therefore distinguishable from TCW/DW North American Gov't Income Trust Sec. Litig., Fed.Sec.L.Rep. (CCH) ¶ 99,320 (S.D.N.Y. Aug. 28, 1996), in which Judge Leisure, in a securities class action comprised of individual, non-institutional investors, stated that "[t]he Court does not consider failure to disclose adequately the allegedly inherent illiquidity of the CMO to be immaterial as a matter of law." Id. at 95,931. [30] Indeed, the Bank's own documents reflect the fact that the liquidity problems were unanticipated. "Since 1988 when the CMO market began, no lack of liquidity situation had ever arisen in the CMO market nor in the fixed rate market in general." Defs.' Mot. for Summ.J. at Ex. 2A at 000571 (Conclusions from Meeting Held at Banca Cremi, Reforma 93-9 on October 24, 1994.) [31] As Judge Murnaghan noted in Malone, a number of circuits have concluded that recklessness can satisfy the scienter requirement, at least in some circumstances. Malone, 26 F.3d at 479 n. 9. In any event, in this case, plaintiffs have not shown such recklessness. [32] Letter from Epley to Buentello of 3/2/94. [33] Id. [34] MMAR Group Guide at 17. [35] Buentello Dep. at 223. [36] Midanek Report at 24. [37] Letter from Epley to Buentello of 3/4/94 at 2. [38] See Pls.' Post-Hearing Brief at 20. [39] See supra note 16. [40] See C. Edward Fletcher III, Sophisticated Investors Under the Federal Securities Laws, 1988 DUKE L.J. 1081, 1153 (taking the position that "[s]uch a presumption should exist, and it should be a conclusive presumption"). [41] Plaintiffs' reference to Judge Williams' unreported Memorandum and Order in In Re Olympia Brewing Co. Sec. Litig. in which she observed that "[t]he sophistication of the investor is immaterial when it comes to plaintiffs' claims based upon misrepresentations and omissions" and "[t]hus, whether or not plaintiffs were sophisticated investors has no bearing on whether or not they can sustain a cause of action under the applicable federal securities laws," is noted. 1985 WL 3928, *9 (N.D.Ill. Nov. 13, 1985). However, given the number of reported cases which do consider the sophistication of the investor to be material, this Court will not follow Judge Williams's approach in that case. See, e.g., Myers, 950 F.2d at 167 (4th Cir.1991) ("The first factor regarding justifiable reliance involves a consideration of the sophistication of the [plaintiffs] and their experience in financial and investment matters.") [42] See Thompson v. Smith Barney, Harris Upham & Co., Inc., 709 F.2d at 1418 (11th Cir.1983) (Fay, J.) ("[plaintiff] did not inquire about any of the transactions he now complains were incomprehensible to him ... [nor did he] question[] the extraordinary profits he was making off his investments, even though the securities that were purchased yielded returns inconsistent with conservative investment objectives"). [43] In November, 1992, for example, the NNI unit issued $50 million in fixed-rate Eurobonds, and in July 1993, it issued another $150 million in fixed-rate Eurobonds. Shortly thereafter, the unit engaged in at least two complex "interest rate swaps" in which the Bank traded the obligation to pay interest on certain of the Eurobonds for an obligation to pay interest on an equivalent principal amount which was tied to the U.S. variable short-term rate. One such swap involved at least $160 million. Arguably, at least those "swaps" could be considered derivatives. [44] The Bank points to several items as indicia of its unsophistication: Two of the items relate to the Approval Memorandum which Epley helped Buentello draft. First, the Bank points to an erroneous statement in the Approval Memorandum "This operation is the same as selling an option (cap) to the floater to hedge against rise in reference rates (LIBOR), and receive an extraordinary return coming from leverage." Instead of "cap" it should say "floor." Second, the Bank argues that the Approval Memorandum refers to inverse floaters as being a highly liquid market and having low risk levels. However, the Approval Memorandum actually says that the market for inverse floaters was growing and becoming increasingly liquid, not that it was highly liquid. As for the risk level, the Approval Memorandum says that inverse floaters have "relatively low risk levels." The Bank also contends that it was unsophisticated because one of its employees, Buentello, allegedly viewed the price volatility and quality of CMO's as akin to that of treasury bills. However, even if Buentello oversimplified the similarities between treasury bills and CMO's, the Bank's decision-makers cannot rely, on what they seemingly desire to label as her ignorance, to protect them — she was hardly ignorant. The Bank also argued that the amount it invested (allegedly more than 100% of its operating income and over 15% of its net worth) raises a strong inference that it failed to comprehend the true nature and risks of CMO's. (In conjunction with that claim, the Bank makes the point that such levels of investment would be impermissible in a bank subject to U.S. government regulations. However, that position is not controlling since Banca Cremi is not subject to U.S. regulations; nevertheless, the contention is taken into account herein.) Finally, the Bank alleges that it had never dealt with CMO's or considered investing in CMO's before being approached by Epley, and that it never purchased any security similar to inverse floaters. Taking that contention that the Bank did not buy or own any security similar to an inverse floater as true, this Court notes that prior to the market collapse, the Bank traded successfully in CMO derivatives, including inverse floaters, for over a year. While those points may perhaps demonstrate that one or more of the employees of the Bank was somewhat inexperienced or unsophisticated, they are not, either individually or taken together, substantial enough to override the failure of the Bank, as an institution, in view of its history and up-to-date activities, to exercise due diligence before investing. [45] An internal Bank report dated April 22, 1992, which Buentello testified that she read, summarized the primary and secondary U.S. mortgage markets, including CMO's. That same month, Mendez attended a two-day seminar on the secondary mortgage market. [46] Buentello Aff. at ¶¶ 4-5. [47] Although Defendants point out that one or two trades may have been done through other firms, viewing the record in the light most favorable to the Bank, during this period, defendants appear to have been involved in either the purchase or sale of virtually every CMO security done by the Bank. [48] See Defs.' Mot. for Summ.J. at Ex. 2A, at 000570, ¶ 2. [49] While the Procedures Manual was developed after the Bank began trading in CMO's, according to Mendez, the procedures it sets forth were informally in effect from the beginning of such activity. Mendez Dep. at 109. [50] Those factors include: macro indicators in U.S.A., the type of bond and coupon, the prepayment rate and the "main variables: treasury bills, LIBOR yield curve." Procedures Manual at BC 002302. [51] See Defs.' Mot. for Summ.J. at Ex 33 (Procedures Manual) at BC 002303 ("No transaction may be made without authorization ... [of the] Director or Assistant Executive Director.") [52] Buentello Dep. at 46; Aguirre Dep. at 38; Mendez Dep. at 49. [53] Mendez Dep. at 50; Buentello Dep. at 262. [54] Plaintiffs' reliance on Straub v. Vaisman & Co., Inc., 540 F.2d 591 (3d Cir.1976), in which an individual plaintiff "experienced and well-acquainted with the securities industry" won a 10(b) claim, is misplaced. Straub involved "flagrantly fraudulent conduct" by the seller of securities, and was decided in the context of a "combination of circumstances" existing in that case. Id. at 593, 598. Those circumstances are not present herein. [55] Buentello Aff. at ¶¶ 20, 21. [56] The record indicates that the Bank received materials from Paine-Webber; Prudential Securities; Bankers Trust Co.; Lehman Bros.; Yamaichi International; and Chemical Securities, Inc. See Defs.' Mot. for Summ.J. at Ex. 26-32. [57] See id. Ex. 33A at 1. [58] See Buentello Dep. at 229-30. [59] The parties agree that there is less publicly available information for "new issue" securities, such as those in question herein, than for securities which have existed longer. [60] Approval Memorandum at BC 001977. [61] A markup is the difference between the price a broker pays for a security and the price at which the broker then sells it to his customer. For example, if the broker buys at 100 and sells to his customer at 102, the markup is 2%. [62] Some of those transactions may have involved Epley's former employer, MMAR Group and thus relate only to Epley and not to Alex. Brown. In any event, this Court will consider in this Opinion all of the Bank's excessive markup contentions. [63] Aguirre Dep. at 84-86; Mendez Dep. at 56-57. [64] See Midanek Dep. at 216-20. [65] In the summary judgment context of this case, this Court accepts as true the Bank's proffer of evidence that other Alex. Brown customers were charged lower markups in connection with sales of other securities. See Pls.' Supp.Mem. Regarding Excessive Undisclosed Markups. That proffered evidence is weighed in this Opinion. [66] See Midanek Aff. dated 9/26/96 at ¶ 11. [67] See October 22, 1996 Decision by National Business Conduct Committee of NASD, In the Matter of District Business Conduct Committee v. MMAR Group, Inc. ("NASD Decision") at 14. [68] Midanek Rep. at 36. [69] See NASD Decision at 18. [70] Id. [71] Ferri Dep. 465. That transaction was not one of the six securities primarily at issue in this case. [72] Plaintiffs have asserted diversity jurisdiction as well as federal question jurisdiction. Compl. ¶ 1. Accordingly, even though summary judgment is being granted to defendants in connection with plaintiffs' federal claims, the Bank is entitled to have this Court consider, independently, its state law claims and not to dismiss them without prejudice, Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546 (11th Cir.1992), as it might well do if diversity jurisdiction did not exist. [73] See Pls.' Mem. on Choice of Law at 5 n. 4 ("If the Court finds that the place where the Bank was injured governs the common law claims, then the laws of Mexico, not Maryland, would apply.") [74] "Whomever, by acting illicitly or against the good customs and habits, causes damage to another shall be obligated to compensate him, unless he can prove that the damage was caused as a result of the fault or inexcusable negligence of the victim." Defs.' Mem. on Choice of Law at 3 n. 2 (citing Civil Code for the Federal District in Ordinary Matters, Article 1910). [75] Federal Rule of Civil Procedure 44.1 currently provides: "A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law." Fed.R.Civ.P. 44.1. That Rule is substantively the same as it was in 1978, with only a technical amendment in the interim. See Advisory Committee Notes. [76] "(2) When the plaintiff's action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties: (a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations, (b) the place where the plaintiff received the representations, (c) the place where the defendant made the representations, (d) the domicil, residence, nationality, place of incorporation and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and (f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant." Restatement (Second) of Conflicts § 148 (1971). [77] "The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence, and the parties." Restatement (Second) Conflict of Laws § 145 (1971). [78] If this court were to apply the "most significant relationship" rationale, the factors would appear to cut in favor of either Mexico or Texas. There is little indication that it would be Maryland or Cayman. But since, as noted, this Court will not apply Mexican law, that approach may still require that this Court apply Maryland law. [79] This Court notes that by their nature omissions may not necessarily occur in any particular jurisdiction — though they may be treated as having occurred in the place where the alleged wrongdoer conducted his business. [80] See Pls.' Mem. on Choice of Law at 7 n. 7.

2013-10-30 06:32:47.76307+00

Barrow

335 S.W.2d 393 (1960) John S. KIRKHAM, Appellant, v. Bonnie Jean KIRKHAM, Appellee. No. 13606. Court of Civil Appeals of Texas, San Antonio. April 20, 1960. Pope & Pope, Rio Grande City, for appellant. Johnson, Hester, Jenkins & Toscano, Harlingen, for appellee. BARROW, Justice. This is an appeal from a judgment granting a divorce to appellee, Bonnie Jean Kirkham, from appellant, John S. Kirkham, awarding custody of the minor child to appellee, providing for support of such child, dividing certain community property, and awarding to appellee a thirty per cent interest in and to the retired pay account of appellant, earned by him as a member of the Armed Forces of the United States of America over a period of twenty-two and one-half years of military service. Appellant attacks the judgment on three points: 1. That the Court erred in finding that the retired pay account of the appellant was community property of the appellant and appellee. 2. That the Court erred in granting and setting aside to appellee Thirty (30%) per cent of said retired pay account. *394 3. That the Court erred in providing for a money judgment as against appellant in the event Federal Statutes or regulations direct payment to plaintiff of her share of such retired pay account. We overrule all three points. It appears from the record that the parties accumulated little community property during their marriage, other than the retirement pay of appellant. The retirement pay account is not a gift or gratuity accruing to appellant, but is an earned property right which accrues by reason of his years of service in military service. The earnings of the husband during marriage are community property. Art. 4619, Vernon's Ann.Civ.Stats. The record shows that appellant's retired pay account has accrued by reason of twenty-two and one-half years of service, ten years of which were served prior to his marriage to appellee, and twelve and one-half years during their marriage. Appellant contends that appellee is only entitled to an undivided 27.8% interest in the account, when properly calculated. That contention is overruled. Art. 4638, Vernon's Ann.Civ.Stats., provides that the court in pronouncing a decree of divorce shall also order a division of the estate of the parties in such way as the court shall deem just and right. As respects a partition of the community estate of the parties a wide discretion is vested in the trial court. Eaton v. Eaton, Tex.Civ.App., 226 S.W.2d 644; Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681; Barry v. Barry, Tex.Civ.App., 162 S.W.2d 440. In regard to that part of the judgment which provides for a money judgment against appellant for appellee's share of future retirement payments, we find that the trial court, in the exercise of his discretion, has authority to enter such a judgment. Berg v. Berg, Tex.Civ.App., 115 S.W.2d 1171; Keton v. Clark, Tex.Civ. App., 67 S.W.2d 437. Finding no error, the judgment is affirmed.

2023-08-22 21:24:12.674893+00

Morrison

ON MOTION FOR REHEARING MORRISON, Presiding Judge. Appellant takes issue with the assertion in our original opinion that error was not committed when the prosecutor referred to appellant as a hoodlum and gangster. We will amplify our reasons for so holding. The state’s principal witness Johnny Green testified that he was a panderer, operated a house of prostitution, and for 48 hours before the homicide he and deceased had been looking for defendant, and that he was accompanying deceased because deceased was expecting trouble, and that both he and deceased were armed with pistols. It was further shown that appellant was armed and began shooting at deceased as he came within range. We have concluded that the references referred to above do not constitute error. Lott v. State, 164 Tex. Cr. Rep. 395, 299 S.W. 2d 145. Appellant next complains of the court’s charge on the issue of surprise. The bill of exception recites that appellant objected because the jury was not told that the state was bound by its own witness unless and until it pleaded and proved surprise. Reliance is had upon three cases, Carroll v. State, 143 Tex. Cr. Rep. 269, 158 S. W. 2d 532; Wells v. State, 154 Tex. Cr. Rep. 336, 227 S. W. 2d 210; and Lawhon v. State, 284 S. W. 2d 730. All three cases support the rule that the state’s case cannot be made out by proof of prior inconsistent statements of the witnesses while their testimony at the trial does not inculpate the accused, and that where such evidence is introduced the jury should be instructed that such prior inconsistent statements might be considered by the jury only as impeachment in accordance with the form found in 1 Branch’s Ann. P.C. 203, 2nd, sec. *526p. 225. These cases and the rule cited have no application here. Green testified in direct examination that possibly he fired the first shot. On cross-examination, he admitted that he had testified at a prior hearing that he returned the fire after he was fired upon and that such was his testimony at this trial. While the prosecutor did not follow the procedure which was commended in Pelton v. State, supra, in claiming surprise, we do find that he secured from the witness the admission that he was now testifying that he fired after he was fired upon by the occupants of the other automobile. Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

2013-10-30 06:32:48.016532+00

Rakoff

955 F.Supp. 40 (1997) Reba MONISOFF, Plaintiff, v. AMERICAN EAGLE INVESTMENTS, INC. and Allen R. Rosenberg, Defendants. AMERICAN EAGLE INVESTMENTS, INC. and Allen R. Rosenberg, Third-party Plaintiffs, v. David MONISOFF and Robert D. Gersh, Third-party Defendants. No. 96 Civ. 2216 (JSR). United States District Court, S.D. New York. February 25, 1997. *41 Russell K. Statman, New York City, for Reba Monisoff. Daniel E. Bacine, Barrack, Rodos & Bacine, Philadelphia, PA, Joseph R. Sahid, New York City, Samuel Simon, Jeffrey W. Golan, Barrack, Rodos & Bacine, Philadelphia, PA, for American Eagle Investments, Inc. Daniel E. Bacine, Barrack, Rodos & Bacine, Philadelphia, PA, for Allen R. Rosenberg. MEMORANDUM ORDER RAKOFF, District Judge. Third-party defendant David Monisoff (husband of plaintiff Reba Monisoff) has moved to dismiss the Amended Third-Party Complaint of defendants/third-party plaintiffs American Eagle Investments, Inc. and Allen R. Rosenberg.[1] The gist of the Amended Third-Party Complaint is that David Monisoff is liable for contribution with respect to any adverse judgment that might be entered in the primary action in which plaintiff Reba Monisoff claims that the defendants mismanaged her investment portfolio in violation of the federal securities laws and state common law. Upon consideration of the parties' submissions and the oral argument of February 4, 1997, the Court hereby grants the motion of David Monisoff to dismiss the Third-party Complaint against him.[2] Although contribution between joint tortfeasors may be available under the federal securities laws, see, e.g., In re Leslie Fay Companies, Inc. Securities Litig., 918 F.Supp. 749 (S.D.N.Y.1996), there can be no claim for contribution where there is no claim or adequate allegation that the third-party defendant himself violated the federal securities laws. See Department of Economic Development v. Arthur Andersen & Co. (U.S.A.), 747 F.Supp. 922, 933 (S.D.N.Y. 1990). Here, third-party plaintiffs do not allege that the injuries to plaintiff alleged in the main action were caused, in any way, by a violation of the securities laws by David Monisoff. Rather, third-party plaintiffs rely on other conduct by David Monisoff, none of *42 which will support contribution under the federal securities laws. First, third-party plaintiffs emphasize the fact that David Monisoff had "active control over, and participation in, the investment decisions for the account of R[eba] Monisoff." Amended Third-party Complaint, at ¶ 34. But even when coupled with the allegations of plaintiff's own Complaint, this fact in no way makes out a claim under the federal securities laws against David Monisoff. As stated in Ades v. Deloitte & Touche, 1993 WL 362364, at *10 (S.D.N.Y. Sept. 17, 1993): A claim for contribution under the federal securities laws ... requires a third-party plaintiff to allege all the elements of the offense[,] ... namely that the Third-Party Defendant[] either knowingly or reckless[ly] made material misrepresentations to the Plaintiff[] on which the Plaintiff[] relied in the purchase of the [securities] and which proximately caused loss to the Plaintiff[]. No such allegations are made here. Furthermore, aside from ¶ 34, supra, the allegations of the Amended Third-Party Complaint against David Monisoff are largely conclusory and of no legal effect. More importantly, aside from ¶ 34, there is nothing in the Amended Third-Party Complaint that can possibly be read as alleging a fraud by David Monisoff against plaintiff Reba Monisoff. All that is alleged, at most, is an independent fraud on the third-party plaintiffs. See Amended Third-party Complaint, at ¶¶ 37-39, 42-44, 48. This allegation will not support a claim for contribution either, because a "claim for contribution under the federal securities laws must be based on allegations that the third-party defendant violated securities laws, not based on allegations that the third-party defendant[] defrauded [the third-party plaintiff]." Arthur Andersen, 747 F.Supp. at 934. While the Amended Third-Party Complaint also includes a claim for contribution as to any judgment that might be obtained by plaintiff on her state law claims, that claim likewise suffers from many of the same deficiencies, viz, a failure to adequately plead either that David Monisoff committed those state law offenses or that he committed any cognizable tort against his wife. See Ades, 1993 WL 362364, at *10. Additionally, third-party plaintiffs have no basis for asserting a common law right of indemnification in the absence of any express agreement, or special relationship from which such an agreement could be implied, between third-party plaintiffs and David Monisoff. See In re Del-Val Fin. Corp. Securities Litig., 868 F.Supp. 547, 553 (S.D.N.Y.1994). Finally, the "non-contribution" claims added to the Amended Third-Party Complaint and purporting to sound in intentional and negligent misrepresentation and breach of fiduciary duty prove, on inspection, to be simply artfully pleaded repetitions of the defective contribution claims. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Moreover, the misrepresentation claims fail to allege the supposed misrepresentations with the necessary specificity, and the fiduciary breach claim alleges at most only a breach of duty to plaintiff that cannot give rise to a cause of action by the third-party plaintiffs. For the foregoing reasons, the motion of third-party defendant David Monisoff to dismiss the Amended Third-Party Complaint as to him is hereby granted. As this case has been reassigned to the Honorable Barbara S. Jones, U.S.D.J., effective March 1, 1997, all future communications relating to the case should be directed to Judge Jones. SO ORDERED. NOTES [1] The motion, initially addressed to the original Third-Party Complaint, was deemed directed to the Amended Third-Party Complaint when the latter was permitted to be filed on February 4, 1997. While substantially similar to the original Third-Party Complaint, the Amended Third-Party Complaint, in so far as it relates to David Monisoff, abandons an indemnification claim made in the original Third-Party Complaint but adds new claims for intentional and negligent misrepresentation and for breach of fiduciary duty (discussed infra). The indemnification claim would have failed in any case. See In re Leslie Fay Companies, Inc. Securities Litig., 918 F.Supp. 749, 764 (S.D.N.Y.1996); Stratton Group Ltd. v. Sprayregen, 466 F.Supp. 1180, 1185 n. 4 (S.D.N.Y.1979). [2] The Amended Third-Party Complaint, like the initial Third-Party Complaint, also asserts claims against an unrelated party, Robert D. Gersh. In a telephonic conference with counsel on December 2, 1996, the Court severed the claims against third-party defendant Gersh from the underlying action and ruled that any motions relating thereto would be addressed after resolution of the instant case. See, e.g., McCoy v. Goldberg, 883 F.Supp. 927, 931 (S.D.N.Y.1995).

2013-10-30 06:32:48.061236+00

Davidson

335 S.W.2d 228 (1960) Frank RAMIREZ, Appellant, v. STATE of Texas, Appellee. No. 31845. Court of Criminal Appeals of Texas. April 13, 1960. Floyd Duke James, San Antonio, for appellant. Charles J. Lieck, Jr., Crim. Dist. Atty., Roy H. Garwood, Jr., Harry A. Nass, Jr., Assts. Crim. Dist. Atty., San Antonio and Leon Douglas, State's Atty., Austin, for the State. DAVIDSON, Judge. This is a conviction for robbery by assault, with punishment assessed at ten years in the penitentiary. The injured party was positive in his identification of the appellant as being the person who actively participated with others in robbing him of a wallet and a sack of groceries. This testimony was sufficient to authorize the jury to conclude that appellant was guilty notwithstanding his denial and the corroboration of that *229 denial by an accomplice who testified that appellant did not participate in the robbery. Although the indictment did not allege that the robbery was effected by the use and display of a firearm, the injured party testified that a .22 rifle was used by the robbers. We are unable to agree with the appellant that the state was not authorized to introduce the rifle in evidence before the jury. By bill of exception #3, appellant complains that the state was permitted to prove his connection with another and subsequent robbery. As qualified by the trial court, appellant went into and developed the testimony to while he objected. No reversible error appearing, the judgment is affirmed.

2013-10-30 06:32:48.100144+00

Orlofsky

955 F. Supp. 359 (1997) Evan SINGER, Plaintiff, v. LAND ROVER NORTH AMERICA, INCORPORATED, Defendant. Civil Action No. 96-1947. United States District Court, D. New Jersey. March 18, 1997. *360 Delia A. Clark, Kimmel & Silverman, P.C., Haddonfield, N.J., for Plaintiff. William J. Tinsley, Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, P.A., Newark, N.J., for Defendant. OPINION ORLOFSKY, District Judge: Plaintiff filed this action against Land Rover North America, Inc. ("Land Rover"), alleging, inter alia, a violation of New Jersey's Consumer Protection Law ("Lemon Law").[1] N.J. Stat. Ann. §§ 56:12-29 to 12-49. Land Rover has moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(b) on plaintiff's Lemon Law claim. Land Rover maintains that, as a former lessee, who no longer has possession of the automobile in question, plaintiff cannot avail himself of the remedies provided by the Lemon Law. Defendant's motion raises an issue of first impression and requires this court to construe New Jersey's Lemon Law in a factual context unanticipated by its drafters. Because I conclude that the intent of the statute is to protect lessees, even if the lease term has expired, defendant's motion for partial summary judgment will be denied.[2] I. Facts and Procedural History On July 23, 1993, plaintiff signed a lease for a new, 1993 Range Rover sport utility vehicle. The lessor was Chase Manhattan Bank. The term of the lease was thirty-six (36) months, and the lease allowed 15,000 miles per year, or 45,000 miles over the entire term. Plaintiff periodically brought the Range Rover to the dealer, complaining of poor handling and stalling. Plaintiff contends that these conditions were not repaired. On April 26, 1996, approximately thirty-three (33) months into the lease, plaintiff filed this action. Sometime at the end of July, 1996, plaintiff returned the vehicle to the lessor. In early August, 1996, plaintiff's counsel informed defendant that plaintiff had returned the vehicle to the lessor. According to plaintiff's counsel, the vehicle was inspected by a representative of Land Rover on September 5, 1996, and subsequently sold at auction. Certif. of Delia A. Clark, Esq. ¶¶ 9-10. On January 21, 1997, this matter was referred to arbitration pursuant to Rule 47D of the General Rules of the United States District Court for the District of New Jersey. An arbitration hearing in this matter is currently scheduled for March 24, 1997. II. Standard of Review A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). The district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996). In deciding whether there is a disputed issue of material fact, the Court must draw all inferences from the underlying facts in favor of the non-moving party. See Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir.1987) (citation omitted); Pollock v. American Telephone & Telegraph Long Lines, 794 F.2d 860, 864 (3d Cir.1986). *361 In order to defeat a motion for summary judgment, "a factual issue must be both material and genuine." Kowalski v. L & F Prods., 82 F.3d 1283, 1288 (3d Cir.1996). A material factual issue is "one that might `affect the outcome of the suit under governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). For the purposes of this motion, the parties are in substantial agreement on the facts outlined above. This motion presents a pure question of statutory interpretation and, accordingly, is ripe for summary adjudication. See Nation Wide, Inc. v. Scullin, 256 F. Supp. 929, 932 (D.N.J.1966), aff'd, 377 F.2d 554 (3d Cir.1967). III. Discussion Under New Jersey's Lemon Law, N.J. Stat. Ann. §§ 56:12-29 to 12-49, manufacturers of new vehicles must repair all defects which substantially impair the vehicle's use, value, or safety if reported by the purchaser (or lessee) within the first 18,000 miles of operation or within two years of delivery, whichever occurs first. For the purposes of this motion only, it will be assumed that the plaintiff can demonstrate that the Range Rover failed to perform as warranted. A successful claimant under the Lemon Law statute, who has purchased a new vehicle, is generally reimbursed the full purchase price of the car, less an allowance for reasonable use, plus the filing fees and other costs associated with bringing the action. N.J. Stat. Ann. § 56:12-32(a). The successful claimant must return the defective vehicle to the manufacturer. Id. Defendant argues therefore, that New Jersey's Lemon Law provides only a "forced rescission" remedy to consumers, a remedy which should be unavailable to consumers who are unable to return the vehicle to the manufacturer. Defendant notes that there are no New Jersey cases addressing the status of a lessee who brings an action under the Lemon Law and subsequently returns the vehicle to the lessor, before it is determined whether the vehicle is nonconforming. However, defendant cites several Pennsylvania cases which it argues are analogous. The protection afforded by the Pennsylvania "Lemon Law," however, by its very terms, does not extend to a lessee of a motor vehicle. See Industrial Valley Bank & Trust Co. v. Howard, 368 Pa.Super. 263, 533 A.2d 1055, 1059 (1987) (neither lessee nor lessor qualifies as a "purchaser" within the meaning of Pennsylvania's Lemon Law). By contrast, New Jersey's Lemon Law specifically covers lease agreements. The statute provides, in pertinent part, that: A consumer[3] who leases a new motor vehicle shall have the same remedies against a manufacturer under this section as a consumer who purchases a new motor vehicle. If it is determined that the lessee[4] is entitled to a refund pursuant to subsection a. of this section, the consumer shall return the leased vehicle to the lessor[5] or manufacturer and the consumer's lease agreement with the motor vehicle lessor shall be terminated and no penalty for early termination shall be assessed. The manufacturer shall provide the consumer with a full refund of the amount actually paid by the consumer under the lease agreement, including any additional charges as set forth in subsection (a) of this section if actually paid by the consumer, less a reasonable allowance for vehicle use. The manufacturer shall provide the motor vehicle lessor with a full refund of the vehicle's original purchase price plus any unrecovered interest expense, less the amount actually paid by the consumer under the agreement. Refunds shall be made to the lessor and lienholder, if any, as their interests appear on the records of *362 ownership maintained by the Director of the Division of Motor Vehicles. N.J. Stat. Ann. § 56:12-32(b) (West Supp. 1996). None of the three Eastern District of Pennsylvania cases cited by Defendant directly addresses leased vehicles. Berry v. General Motors Corp., Civ. A. No. 87-3237, 1989 WL 86224 (E.D.Pa. July 28, 1989), involved a plaintiff whose car was repossessed by the lienholder. In Simons v. Mercedes-Benz of N.A., Inc., Civ. A. No. 95-2705, 1996 WL 103796 (E.D.Pa. March 7, 1996), the plaintiff sought to maintain a Lemon Law action after having "traded in" the vehicle in question. Similarly, in Sinnerard v. Ford Motor Co., Civ. A. No. 95-2708, 1996 WL 544226 (E.D.Pa. Sept. 23, 1996), following the theft of the vehicle, the plaintiff accepted payment from its insurer. In each case, the court ruled that the Pennsylvania Lemon Law only protected "purchasers," by which the law meant those who retained possession or title to the motor vehicle. More importantly, each Pennsylvania case cited by Land Rover addresses a distinct concern, none of which is presented to this court by this motion. In Berry, the court sought to prevent a unilateral suspension of loan payments by the borrower. See also Ford Motor Credit Co. v. Dunsmore, 374 Pa.Super. 303, 542 A.2d 1033 (1988). In Simons and Sinnerard, the plaintiffs would have had a double recovery, unless the court had ordered them to disgorge the insurance payment or trade-in value to the manufacturer in return for a refund of the purchase price of the vehicle.[6] The Pennsylvania Lemon Law does not specifically authorize such a remedy, and the district court may simply have been unwilling to create it. See Simons, 1996 WL 103796 at *2; Reeves v. Morelli-Hoskins Ford, Inc., 415 Pa.Super. 431, 609 A.2d 828, 830 (1992) (legislature, not the courts, must expand the statutory definition of a "purchaser" to include those who no longer own or possess the vehicle in question). But cf., Harmon v. Concord Volkswagen, Inc., 598 A.2d 696, 702-03 (Del.Super.Ct.1991) (distinguishing Berry on similar facts, in part because the Delaware Lemon Law's definition of "consumer" is more inclusive than Pennsylvania's definition of a "purchaser"). Defendant points out that the New Jersey Lemon Law merely grants lessees the "same remedies" as buyers. N.J. Stat. Ann. § 56:12-32(b). See also Assembly Appropriations Comm. Statement, S. No. 2201, L.1988, ch. 123. The remedial scheme includes the consumer's return of the vehicle, either to the lessor or manufacturer. See § 56:12-32(b). Clearly, the New Jersey statute anticipates that the consumer will have possession of the vehicle at the time that it is adjudged a "lemon." The New Jersey Lemon Law also provides that the lessor shall return the "lemon" to the manufacturer and be made whole. See § 56:12-32(b). The transaction between lessor and manufacturer, however, is a mere prerequisite to the further requirement of Section 56:12-35 of the Lemon Law, mandating that the manufacturer include a warning that the vehicle was returned as a "lemon," in the event the vehicle is to be resold or released. Therefore, although the plain language of the statute reflects the legislature's assumption that the vehicle would be returned to the manufacturer as part of the overall remedial scheme, it cannot be said that the Lemon Law is intended to protect lessors. Indeed, lessors are specifically excluded from the statutory definition of "consumers." See N.J. Stat. Ann. § 56:12-30. Land Rover places great importance upon the twin requirements that the lessor be made whole by the manufacturer and that any future buyer be warned that the vehicle has been returned to the manufacturer as a "lemon." In this case, Land Rover clearly cannot comply with those statutory elements because the vehicle has already been returned to the lessor and resold. Plaintiff argues that he should not lose his statutory remedy simply because he failed to extend *363 the lease, or otherwise retain the allegedly nonconforming vehicle. In a moment of rhetorical overstatement, plaintiff derides such an interpretation of the Lemon Law as unfairly "requir[ing] a consumer to retain possession of a two (2) ton juggernaut, capable of mass destruction at any moment, simply to protect his financial claims." Plaintiff's Brief at 2. Unadorned by hyperbole, the question for this court is whether the statutory requirement contained in New Jersey's Lemon Law that a prevailing consumer receive a refund is severable from the requirement that the manufacturer accept the return of the vehicle, so that a consumer may seek a remedy under the Lemon Law, even if the vehicle cannot be returned to the manufacturer. In construing Pennsylvania's Lemon Law, Pennsylvania's intermediate appellate court and the district court in the Eastern District of Pennsylvania, have answered this question "No." In reaching this conclusion, those courts have reasoned that the definition of a "Purchaser", under Pennsylvania's Lemon Law is limited to those having possession of the vehicle in question. This rationale may be questioned, at least insofar as the courts proclaim an unwillingness to expand upon legislative definitions, while simultaneously adding a purely judicial gloss, the requirement of "continued possession," to the legislature's original handiwork. See Reeves, 609 A.2d at 831 (McEwen, J., dissenting). Nevertheless, Pennsylvania courts clearly have construed a much narrower statute than the New Jersey Lemon Law, which, by its express terms, protects a broad class of "consumers," including lessees. More important than the rationale supporting the Pennsylvania decisions, however, is the fact that all of them address anomalous situations which deprived an erstwhile "purchaser" of title or continued possession of the vehicle. For example, for a plaintiff in a Pennsylvania Lemon Law action, the lesson to be learned from Simons is not to "trade-in" his or her vehicle during the pendency of the suit. Similarly, Berry merely requires a plaintiff whose car is subject to a lien to continue to make payments on the vehicle. These decisions do not erect significant barriers before the very class of persons protected by the Pennsylvania Lemon Law.[7] To apply the reasoning of the Pennsylvania cases to New Jersey's Lemon Law would work a much greater hardship upon New Jersey "consumers." The purpose of New Jersey's Lemon Law is to provide "procedures to expeditiously resolve disputes between a consumer and a manufacturer," without requiring the consumer to prove fraud. See N.J. Stat. Ann § 56:12-29. Clearly, the Lemon Law is a remedial statute. As such, courts should construe the Lemon Law liberally to achieve its remedial purpose. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431, 650 A.2d 958 (1994). Furthermore, courts "should avoid a literal interpretation of individual statutory terms or provisions that would be inconsistent with the overall purpose of the statute." Young v. Schering Corp., 141 N.J. 16, 25, 660 A.2d 1153 (1995). The New Jersey Lemon Law specifically affords relief to lessees. The statutory period in which a consumer must seek repairs is two years or 18,000 miles. N.J. Stat. Ann. § 56:12-31. It must be assumed that a three-year, or even a four-year, lease could easily expire before the final adjudication of a Lemon Law suit. To require the lessee, in all such circumstances, to seek to extend the lease term, or to purchase the vehicle, if that is allowed under the lease, would create an insurmountable hurdle for a potentially large class of plaintiffs who seek the protection of New Jersey's Lemon Law. Furthermore, although many "consumers" will no doubt discover nonconformities in their vehicles early in the lease term, any construction of New Jersey's Lemon Law which absolutely bars recovery when the plaintiff no longer possesses the leased vehicle, would serve to encourage manufacturers, or their authorized dealers, to promise to *364 repair or correct any nonconformity simply in order to delay potential legal action until the lease is about to expire.[8] It is the Lemon Law's stated aim to "expeditiously resolve disputes." The statute must be construed so as to promote cooperative resolution of disputes, not in a manner that would encourage delay. For all of these reasons, defendant's motion for partial summary judgment will be denied. Because I have concluded that the statutory requirement that a vehicle which has been determined to be a "lemon" must be returned by the lessor to the manufacturer is not an indispensable part of the scheme of New Jersey's Lemon Law, an appropriate remedy can be fashioned to meet the facts of this case. If plaintiff ultimately prevails in this action, Land Rover will not be required to "provide the motor vehicle lessor with a full refund of the vehicle's original purchase price...." N.J. Stat. Ann. § 56:12-32(b). Nor can this court oblige Land Rover to conform to the notice requirements of section 56:12-35. It must be stressed that this court's conclusion in no way reflects on the merits of plaintiff's claim as to the alleged non-conformities of the Range Rover. As was noted, the plaintiff had amassed over 45,000 miles on the vehicle by the conclusion of the lease term, and owed the lessor an additional payment for excess mileage. In light of the accumulated mileage, one might understandably be dismayed by plaintiff's claim that the alleged non-conformities rendered "control of the vehicle extremely difficult and driving quite dangerous." Plaintiff's Brief at 1. Whatever the merits of Singer's claim, however, they cannot defeat the broad remedial purpose and public policy reflected in New Jersey's Lemon Law. IV. Conclusion For the reasons set forth above, the court will deny the motion of defendant, Land Rover North America, Inc., for partial summary judgment. The court will enter an appropriate order. ORDER This matter having come before the Court on the motion of defendant, Land Rover North America, Inc., for partial summary judgment pursuant to Fed.R.Civ.P. 56(b), Delia A. Clark, Esq., of Kimmel & Silverman, P.C., appearing on behalf of the Plaintiff, and William J. Tinsley, Esq., of Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, P.A., appearing on behalf of the Defendant; and, The Court having considered the motion, the briefs and exhibits filed in support of and in opposition to the motion, for the reasons set forth in this Court's OPINION filed concurrently with this ORDER; It is on this 18th day of March, 1997, ORDERED that the motion of defendant, Land Rover North America, Inc., for partial summary judgment is DENIED. NOTES [1] The complaint also alleges violations of the Magnuson-Moss Warranty Act, Pub.L. 93-637, 88 Stat. 2183 (codified as amended in scattered sections of 15 U.S.C.), breach of warranty under the Uniform Commercial Code, and consumer fraud. [2] If New Jersey permitted federal courts to certify questions of state law to its Supreme Court, this question of statutory interpretation, apparently one of first impression, might be appropriate for certification. See Hakimoglu v. Trump Taj Mahal Assoc., 70 F.3d 291, 293 (3d Cir.1995); see id. part V, at 302-04 (Becker, J., dissenting, joined, in part V only, by Nygaard and Alito, JJ.) (describing the overwhelming satisfaction of federal judges with state certification procedures where they exist and urging New Jersey to adopt certification). See also Hulmes v. Honda Motor Co., 924 F. Supp. 673, 678 (D.N.J.1996). Alas, New Jersey has yet to adopt a certification procedure. [3] A consumer is defined as "a buyer or lessee, other than for purposes of resale or sublease, of a motor vehicle; a person to whom a motor vehicle is transferred during the duration of a warranty applicable to the motor vehicle; or any other person entitled by the terms of the warranty to enforce the obligations of the warranty." N.J. Stat. Ann. § 56:12-30. [4] A lessee is "a person who leases a motor vehicle pursuant to a lease agreement." Id. [5] A lessor is "a person who holds title to a motor vehicle leased to a lessee under a lease agreement or who holds the lessor's rights under such an agreement." Id. [6] The district court in Simons also pointed out that, by trading-in the vehicle, the plaintiff deprived the manufacturer of an opportunity to inspect the vehicle after suit was filed. In this case, Land Rover was given the opportunity to inspect the vehicle before its resale at auction. See Certif. of Delia A. Clark ¶ 9. [7] Admittedly, Sinnerard is a more difficult case inasmuch as it seems to require a plaintiff in a Pennsylvania Lemon Law action to retain a vehicle which has been "totaled." Nevertheless, the factual scenario which unfolded in Sinnerard cannot be commonplace. [8] In this case, the facts presently before the court do not suggest that either Land Rover, or its dealer, has purposely delayed the resolution of plaintiff's claims.

2013-10-30 06:32:48.101934+00

Steele

913 A.2d 543 (2006) BEEBE MEDICAL CENTER, INC. and Lewes Convalescent Center, Inc., Defendants Below, Appellants, v. Anthony W. BAILEY, individually, and as Administratrix of the Estate of Julie H. Bailey, Christopher B. Connaway, Shawn M. Connaway, Elberon T. Connaway, III, Plaintiffs Below, Appellees. No. 454, 2005. Supreme Court of Delaware. Submitted: September 6, 2006. Decided: November 8, 2006. Amended: November 15, 2006. *546 John A. Elzufon and Andrea C. Rodgers, Elzufon Austin Reardon Tarlov & Mondell, P.A., Wilmington, DE; Mark Alan Aronchick (argued), pro hac vice, for appellants. Chase T. Brockstedt, Murphy Spadaro & Landon, Wilmington, DE; A.L. Butler Daniel (argued) pro hac vice, for appellees. Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the court en banc. STEELE, Chief Justice: In this medical malpractice action, the defendants-appellants, Beebe Medical Center, Inc. and Lewes Convalescent Center, Inc.[1] appeal a 13 million dollar verdict for the plaintiffs-appellees, Anthony Bailey, individually, and as the Administratrix of Julie Bailey's estate, Christopher B. Bailey, Shawn M. Connaway, and Elberon T. Connaway.[2] While in Beebe's care, Julie Bailey was locked in a freezer for over four hours, suffered from frostbite, and died a few weeks later. Because Beebe conceded that Julie Bailey's injuries and death resulted from their negligence, the trial focused solely on damages. Bailey's estate brought claims for pain and suffering and punitive damages. The surviving family members individually sought damages under Delaware's Wrongful Death Statute. Before trial, Beebe moved to have the damage claims trifurcated to prevent jury confusion resulting from hearing different kinds of damage evidence on each claim in the same hearing. The trial judge denied the motion. After trial began and the jury heard substantial evidence about damages, the parties settled the punitive damage claim, and the trial continued on the remaining damage claims. Beebe argues on appeal that the trial judge abused his discretion when he denied their motion to try the claims separately merely because of the inefficiency that would result from doing so and further claims that he ignored the unfair prejudice to Beebe that resulted. We find that the trial judge correctly considered and applied all relevant factors under Superior Court Civil Rule 42 before denying Beebe's motion to trifurcate. Although he denied the motion, the trial judge did offer to consider a limiting instruction designed to assure that the jury considered only evidence relevant to each separate category of damage claim in order to avoid or minimize any potential prejudice to Beebe. We conclude that the trial judge did not abuse his discretion by denying Beebe's motion to trifurcate. Beebe also argues that the trial judge erred by permitting the surviving family members to recover damages for emotional distress they suffered as a result of Beebe's negligent treatment of Julie Bailey. Beebe argues that the scope of damages for mental anguish permitted under the Delaware Wrongful Death Statute and the common law precludes a recovery for the survivors' emotional distress. Beebe contends that allowing the jury to consider evidence of the survivors' emotional distress under the rubric of "mental anguish" after the punitive damage claims had been settled, unfairly prejudiced them. After reviewing the record, we find that Beebe waived this argument. Beebe's counsel *547 made sound, understandable tactical decisions that allowed the jury to hear evidence relating to punitive damages. Beebe's counsel did not submit detailed limiting instructions that may have aided the jury to compartmentalize evidence of emotional distress from the evidence of punitive damages. Beebe's counsel had several opportunities to object to overlapping damage evidence during the trial or to request limiting instructions, yet did not do so. Lastly, Beebe further contends that the trial judge improperly instructed the jury because the instruction "invited the jury to base its wrongful death award on the punitive damages evidence." Beebe argues that this constituted plain error. After reviewing the instructions, we find that they were adequate. The trial judge repeatedly told the jury that they would no longer be considering the punitive damages claim. The trial judge also gave limiting instructions, albeit general in nature, regarding certain documents and testimony that could arguably be construed as evidence of emotional distress overlapping the evidence relevant to punitive damages. We conclude that the trial judge's instructions were sufficient, and did not constitute plain error. Accordingly, the Superior Court's judgments are affirmed. FACTS AND PROCEDURAL HISTORY Julie Bailey was a sixty-year-old woman who suffered from Alzheimer's disease. Because of her disease, she functioned at the intellectual level of a two-year-old. On December 25, 2002, she suffered from stomach problems, and went to Beebe for treatment. On December 28, 2002, Beebe transferred her to LCC, a nursing care facility that Beebe owns. Julie Bailey arrived at approximately 11:00 a.m. and approximately four to five hours later, LCC's staff discovered that she was missing from her room. After searching the facility and surrounding areas for approximately four and a half hours, LCC staff found Julie Bailey locked in a freezer room in the kitchen. Julie Bailey was frozen to the floor of the freezer by her own urine. She suffered severe injuries as a result of this incident, including frostbite to her hands, feet, and nose. Julie Bailey obtained treatment for her injuries at Beebe; however, Beebe staff did not provide her with pain medication before administering frostbite treatments. That failure prolonged Julie Bailey's suffering. On January 21, 2003, Julie Bailey suffered a pulmonary embolism, and died a short time later. On April 11, 2003, Bailey's estate and surviving family members filed an action against Beebe. Julie Bailey's estate asserted claims for pain and suffering and punitive damages related to Beebe's negligent treatment of her. Her surviving family members individually sought damages under Delaware's Wrongful Death Statute.[3] In a pretrial motion in limine, Beebe moved to have the trial trifurcated to separate: (1) the Estate's claim, (2) the wrongful death claims; and, (3) the punitive damages claim. The trial judge denied Beebe's motion to try these claims separately. The Superior Court held a jury trial from March 9, 2005 through March 16, 2005. During Bailey's case, Bailey submitted evidence of both punitive and compensatory damages. The parties settled the punitive damages claim on March 15, 2005. The parties met with the trial judge on March 15 and 16, 2005 to discuss various trial issues, including jury instructions and the exclusion of evidence relating to punitive damages. On March 16, 2005, Bailey *548 called their final witness and rested their case. The trial judge then told the jury that the punitive damages claim was no longer an issue in the case, and Beebe stated that they were not calling any witnesses because the punitive damages claim was no longer an issue. The trial judge then instructed the jury. The jury returned a verdict for compensatory damages in the amount of $4,000,000 to Julie Bailey's estate, $3,000,000 to her husband, Anthony Bailey, and $2,000,000 to each of her three sons, for a total of $13,000,000. Beebe filed a motion for a new trial or remittitur. The trial judge denied the motion, and Beebe appealed. DISCUSSION 1. The trial judge did not abuse his discretion by denying Beebe's motion for separate trials. Beebe argues that the trial judge abused his discretion by denying their motion to "trifurcate" or hold separate trials on the damages claims; and, as a result, unfairly prejudiced Beebe. Beebe contends that the "Superior Court [in denying the motion to trifurcate] ignored the potential prejudice to the Defendants from a consolidated trial and . . . focused solely on the potential for overlapping witnesses and concerns for efficiency." We review a decision denying a motion to try claims separately for abuse of discretion.[4] This Court will not reverse the trial judge's determination unless one of the parties has been unfairly prejudiced.[5] Delaware Superior Court Civil Rule 42(b) states: The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claims, counterclaim or third-party claim, or of any separate issue or of any number of claims, cross-claim, counterclaim, or third-party claims or issues.[6] In the past, trial judges have decided whether or not to try claims separately by considering the witnesses that would need to testify and the evidence that would be presented at trial. For example, in Union Mutual Life Insurance, Co. v. Dewey, the trial judge denied a motion to separate claims because it was likely that the same witnesses would be needed to testify on both claims and the documents introduced would be the same for both.[7] The trial judge held that "[s]eparation of the cases for trial would require duplication, double expense and would not be conducive to the expedition of the trial and economy."[8] On a motion for separate trials on liability and damages in a negligence case, the Superior Court also has declined to separate the issues for trial where the same witnesses would have to testify at length on both the *549 issue of liability and damages.[9] The trial judge also reasoned that "motion[s] for separate trials of liability and damages in negligence suits should be carefully considered and sparingly granted."[10] The trial judge explained that separation may be beneficial in multiparty litigation where many plaintiffs are joined and an issue of liability is common to all of them but damages differ for each party.[11] Other situations that may warrant separation are cases containing diverse claims, such as permissive counterclaims, which are unrelated to the principal cause of action.[12] In their motion for trifurcation, Beebe contended that the jury's anticipated anger in response to the punitive damages evidence would potentially inflate any compensatory damages award "based on passion and prejudice that bears no relationship to the actual damages suffered by the plaintiffs." Beebe purported to support their position by arguing that the evidence that would establish compensatory damages was totally independent of the evidence that would ultimately be used to establish punitive damages. Beebe conceded in their motion, however, that "evidence of the impact of some of the alleged conduct which forms the punitive damage claim may be relevant to the plaintiffs' individual mental anguish claims under the Wrongful Death Statute." In response, Bailey's estate and surviving family members argued that separating the claims for trial was not feasible because evidence of both the compensatory damages and punitive damages claims would be intertwined and could not be neatly divided. In addition, trifurcation would be inefficient and counter to the interest of judicial economy. Lastly, Bailey's estate and surviving family members urged that it would be an emotional hardship for Julie Bailey's family to have to testify multiple times. In deciding to deny the motion to try the damages claims separately, the trial judge considered several factors enumerated in Delaware Superior Court Civil Rule 42, including convenience, avoidance of prejudice, and judicial economy.[13] The trial judge considered the evidence that would be presented at trial, the potential prejudice to Beebe, and the risk of inefficiency. The trial judge reasoned that the evidence could not be "neatly segregated and presented in a manner consistent with the defendants' request for trifurcation." The trial judge stated, "I simply see no practical way for the witnesses to divide up their testimony to fit into the defendant's request . . . [T]he evidence in this case on both compensatory and punitive damages is so interwoven that much of it would have to be repeated again in different phases of the trial." The trial judge also pointed out that Beebe acknowledged the overlap of punitive and compensatory damages evidence in their own motion, and that he (the trial judge) was reluctant to require Julie Bailey's family members to testify multiple times, which he suspected would be very difficult for them. It would also be difficult and expensive to have expert witnesses testify multiple times. *550 As the trial judge stated, "I think trifurcation of this particular case would turn this trial into a much larger, inefficient, and more difficult case to manage for the Court and for the parties and for all the participants." The trial judge did, however, state his willingness to consider any jury instructions that would clarify what evidence the jury may consider and for what purpose it may be considered.[14] His offer to consider limiting instructions for the jury specifically demonstrates that the trial judge completely appreciated Beebe's concerns and offered a solution designed to minimize any prejudice while maximizing the efficient management of the trial. The record does not demonstrate that the denial of the motion to separate the damages claims for trial prejudiced Beebe. The trial judge reviewed the jury's award after the trial, found that the evidence overwhelmingly supported the award and did not support the supposition that the jury was motivated by anger towards Beebe. Those findings are not clearly erroneous. Accordingly, we hold that the trial judge did not abuse his discretion by denying Beebe's motion to hold separate trials on the damages claims. 2. Beebe waived their argument that the trial judge erred by not narrowing the scope of mental anguish for the compensatory damage claims. Beebe next argues that the trial judge erred by permitting Julie Bailey's family members to recover for emotional distress they suffered as a result of Beebe's negligent treatment of Julie Bailey. They maintain damages for emotional distress are not recoverable either under Delaware common law or Delaware's Wrongful Death Statute. Beebe contends that the scope of potential recovery for mental anguish under Delaware's Wrongful Death Statute[15] is limited, and that by allowing the jury to consider the survivors' emotional distress, the trial judge erroneously permitted the jury to base its wrongful death award on punitive damages evidence, instead of the more narrow evidence of mental anguish. As a result, Beebe maintains, the jury improperly inflated their compensatory damages award. "Delaware Rule of Evidence 103[16] requires a party to raise a contemporaneous objection to evidence presented during trial or risk losing the right to raise that issue on appeal."[17] A waiver occurs where a party fails to object or raise that issue on appeal, unless the error is plain.[18]*551 Therefore, where a party advances an argument on appeal, we must determine whether that argument precludes waiver. If we conclude that the party has waived its argument for purposes of appeal, the argument can survive only if plain error occurred in the court of first instance. We have reviewed the record to determine whether Beebe have waived their argument on appeal. Beebe's counsel represented both Beebe and LCC on both the compensatory and punitive damages claims. That required Beebe's counsel to make several strategic decisions regarding representation, because his clients had potentially conflicting interests. We reasonably can infer from the record that any insurance carrier would be, in part, responsible for compensatory damages, and that Beebe and LCC would be individually responsible to pay any punitive damages awarded. At the beginning of the trial, when both punitive and compensatory damages were at issue (and BMC, LCC, and their probable insurance carriers were all involved in the case), Beebe's counsel did not raise any argument concerning the scope of a claim for mental anguish under the Delaware Wrongful Death Statute.[19] Indeed, Beebe's opening argument is inconsistent with their present argument on appeal regarding the scope of a claim for mental anguish: So what are punitive damages? And the best way to discuss punitive damages is to compare it with compensatory damages. Remember, compensatory damages is a given in this case. So what is compensatory damages for? The top part is a given. The goal: Just and full compensation for the losses of the plaintiffs. That's what you're definitely going to do in this case. Negligence goes to compensatory damages. Pecuniary is actually negligence. That's part of the compensation, a given part of the case. . . . . . . . You may say to yourself, the warning signs were there. Why didn't they do something about it? That's a conclusion that you can reach from the evidence. And if you consider and you conclude from that evidence that they just didn't get it, that they made some wrong decisions that were unreasonable reactions, I'm saying that's the case. But you may conclude that that goes to compensatory damages, not punitives. Not because I say so, but because the Delaware Supreme Court says that's the standard. We infer that a reasonable tactic for Beebe—consistent with its self-interest— would have been to urge the jury to consider the broadest possible scope of the evidence for the inevitable compensatory damages award so that the award would be covered by any available insurance. Thus, Beebe did not object to the introduction of broadly cast evidence of damages during trial, nor did Beebe request limiting instructions during the testimony of Bailey's witnesses or at the trial's conclusion. Tony Bailey, Julie Bailey's husband, testified about Julie's battle with Alzheimer's disease, about what happened on the evening she was locked in the freezer, and how the details he later learned regarding the deficiencies at LCC affected his grieving.[20] Beebe's counsel did not *552 object, nor did he request limiting instructions suggesting that the jury should only be permitted to use that testimony for a particular purpose. Julie Bailey's sons also testified about how they were affected after learning of the problems with LCC and Beebe.[21] Again, Beebe did not object during their testimony, nor did they ask the trial judge to give instructions limiting the scope of the evidence of emotional distress the jury could consider in determining the appropriate compensation for the surviving family members' mental anguish. Although Beebe neither objected to this evidence as it was admitted nor requested limiting instructions, they now assert that the trial judge improperly allowed the jury to consider the evidence. Beebe did not preserve that argument for appeal simply by asking that the plaintiffs' damages claims be trifurcated.[22] Only after the parties had settled the punitive damages claim did Beebe, for the first time, raise concerns that the overbroad scope of the evidence of mental anguish created the risk of an inappropriately large compensatory damage award.[23] While we *553 can appreciate Beebe's concern, Beebe expressed that concern too late in the trial. The trial judge repeatedly attempted to solicit Beebe's suggestions for limiting instructions so that the jury would know specifically what evidence they could and could not consider when contemplating compensatory damages. In a March 15, 2005 conference, the trial judge suggested that it may be beneficial for Beebe to refer specifically to certain pieces of evidence for the judge's limiting instructions. Instead, Beebe advised that counsel would use his closing to help clarify issues for the jury, stating: "[a]s I see it, what it may come down to is general instructions to the jury, and then it may come down to what I say on rebuttal." Beebe also acknowledged that it was their burden to prepare a request for jury instructions and present it to opposing counsel and the trial judge for approval.[24] On March 16, 2005, the trial judge reminded Beebe: But I said I'm certainly amenable to any kind of limiting instruction, taking a look at it. And you [Beebe] said you [Beebe] would take the heavy load and go back, and it would be your [Beebe's] burden, to some degree of specificity, to say these were the things, ladies and gentlemen [of the jury], that you should not pay any attention to. And you [Beebe] have in your instruction mentioned some things, but that's kind of where we are. The trial judge clarified that he had decided to exclude certain documents containing flat numbers regarding Beebe's net worth because they were relevant only to the punitive damages claim, which was no longer part of the trial. The trial judge reiterated, however, that much of the evidence in the trial regarding compensatory and punitive damages overlapped, and that Beebe conceded this fact in their pretrial motion for trifurcation. The following discussion then took place: The trial judge: You know, I guess your point is you agree with me [about the overlap of evidence for compensatory and punitive damages], but that it is unfairly prejudicial. I simply do not think that it is unfairly prejudicial. I am willing to sit here and go document by document to make sure that we do not let in something that had we taken the time to look at it, I might have kept it out. I think we talked about money in a general sense yesterday. [Bailey's estate and surviving family members' counsel] said, I'm not going there, I'm not going to get up there and say Beebe was rich with a net worth of 88 million dollars or whatever it was, and therefore, that's something you folks ought to think about. The relevancy is that Beebe, regardless of how much money it had . . . had some money to do some things and didn't do it. That is to me a little more relevant. The dollars are not. *554 Bailey's estate and surviving family members' counsel: I just want to bring up one thing for the record on this taking the time to go through the documents . . . But when we had your motions to exclude some of the evidence, Your Honor indicated on the record, and I'm sure that the transcript will bear this out, that you had been put in a difficult position because there are so many surveys and no one has taken out which ones are objectionable, which ones there are objections to, and which ones there would be objections to on relevance to the punitive which is one of the objections for compensatory. And you made that statement and you said I would like to have a specific objection to which of those there is a specific objection to. But your general ruling is that they come in, absent a specific objection. Now, that's what you said. And at no time was there ever any objection raised to any specific survey for any purpose. And so, Judge, to now say let's go through and start climbing through them and start figuring out which ones are objectionable, Judge, it would be the plaintiffs' position that any objections were waived because they were never brought. They were never raised. They were waived and I think the record is going to bear that out clearly. Beebe's counsel: We did object to all records, all HSS surveys that postdated the Julie Bailey incident and the fact the jury hasn't seen them. So that's not an issue. I am not applying for a document-by-document review. Because the facts remains [sic], given the Court's ruling, and my objection is noted. I think that the only documents we have to be concerned with are the ones that mention specific numbers. And only one or two, that 32-million-dollar Merrill-Lynch document, maybe the one with the MRI, maybe the 500,000 at LCC. None of the HSS reports fall under that issue. None of the incident reports fall into that issue. The trial judge then further explained his ruling as follows: I know how these things are examined six months from now, a year from now. Little things will be picked to pieces. Long briefs will be written on a document or two documents or three documents. In my world, it is never too late to fix a problem. The opportunity is there, and it is not always that I am just a nice guy giving you a chance. I am always thinking ahead about how this is going to look when the Supreme Court say, well, Judge [name omitted], what were you thinking; you're talking about generalities, you didn't even have that document before you. And the other side will say, well, Judge [name omitted] did give the parties a chance to bring it forward, they elected not to, they waived it. So it is not always that unpleasant, it's that, I'm thinking about the quality of my rulings as well. So that why I do what I do. Beebe responded that they would not be prejudiced if they declined an opportunity for a document-by-document review to determine whether any documents should be excluded or explained in a limiting instruction.[25] Later in the conference, the trial *555 judge told Beebe that there was some confusing language in Beebe's request for a limiting instruction. Beebe's counsel responded, "I have to confess that I wrote this instruction with the hopes that my motion [for] reconsideration would be granted." The trial judge again told Beebe that he was looking to Beebe "to focus on the evidence that you [Beebe] clearly think is excluded by those rulings, because we are talking in generalities to some extent." The trial judge gave Beebe ample opportunity to request detailed limiting instructions for the jury. It was Beebe's responsibility, as Beebe conceded, to request limiting instructions from the trial judge that would fully inform the jury and protect Beebe's interests. The trial judge offered to examine each piece of evidence to determine what should be addressed in the limiting instructions or excluded from the jury deliberation room, but Beebe refused that option. Apparently Beebe did not want the jury to hear more specific damages instructions; therefore, Beebe waived any claim that the trial judge erred by not independently crafting and giving his own limiting instructions. Beebe's remarks during their opening statement, their failure to object during Bailey's witnesses' testimony on mental anguish, their failure to request limiting instructions at the time of that testimony, and their failure to request specifically detailed damage instructions at the trial's conclusion, amount to waiver of their present argument on appeal regarding the scope of mental anguish under Delaware's Wrongful Death Statute. We are mindful of Beebe's predicament and the difficult tactical decisions that Beebe's counsel had to make both at the start of trial and after the parties settled the punitive damages claims. We do not in any way suggest that the decisions made were anything other than carefully considered. In the end, however, Beebe chose to try the case the way they did, and as a result, waived any opportunity to contest the scope of mental anguish under Delaware's Wrongful Death Statute on this appeal. 3. The trial judge's jury instructions were sufficient; therefore, plain error did not occur. Lastly, Beebe contends that even if they waived their argument based on the narrow scope of mental anguish damages on appeal, reversal is still required because the trial judge "invited the jury to base its wrongful death award on the punitive damages evidence," which constituted plain error. Although Beebe waived their underlying argument on appeal, we must also address Beebe's plain error argument. Supreme Court Rule 8 provides that "[o]nly questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, [this] Court may consider and determine any question not so presented."[26] "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."[27] "[T]he doctrine of plain error is limited to material defects which are apparent on the *556 face of the record, which are basic, serious, and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."[28] "While some inaccuracies and inaptness in statements are to be expected in any [jury] charge, this court will reverse if the alleged deficiency in the jury instructions undermined the jury's ability to intelligently perform its duty in returning a verdict."[29] "Therefore, we must determine whether the instructions to the [] jury were erroneous as a matter of law, and, if so, whether those errors so affected [the parties'] substantial rights that the failure to object to the instruction at trial is excused."[30] Although the trial judge has the responsibility to instruct the jury; it is the parties' responsibility to bring to the trial judge's attention the instructions they consider appropriate and the reasons why.[31] "A trial [judge's] charge to the jury will not serve as grounds for reversible error if it is `reasonably informative and not misleading, judged by common practices and standards of verbal communication.'"[32] We look at the jury instructions as a whole to make this evaluation.[33] Although Beebe failed to supply the trial judge with specific limiting instructions on damages for mental anguish and although Beebe declined the trial judge's offer to conduct a document-by-document review of the evidence in preparation for crafting limiting instructions, the trial judge's instructions, nevertheless, enabled the jury to make a well informed decision and award appropriate damages. Beebe argues that jury inflated the compensatory damages award because the jurors were angered by the punitive damages evidence and, as a result, improperly considered and weighed that punitive damages evidence when considering the compensatory damages award. Our review of the instructions, however, reveals that the trial judge told the jury three separate times that the punitive damage claim was no longer an issue in the case and should no longer be considered. He further instructed the jurors that they must not be influenced by prejudice, sympathy, anger, hostility, or any similar motive when making their decision. The trial judge's instructions also explained that the jury should consider certain types of evidence in a limited way because there was no longer a punitive damage claim: Since the punitive damage claim is no longer an issue, how should you consider this evidence and these documents? They should only be considered by you in your evaluation of the plaintiffs' mental anguish claim. Let me explain that a little further. There has been testimony from the plaintiffs that part of their mental anguish claim is the knowledge they now have of the conditions at the Lewes Convalescent Center. These documents and this testimony are relevant on plaintiffs' claims that their mental anguish claims have been worsened. They are not relevant for any other purpose. *557 Last week you heard evidence about Beebe Medical Center's net worth and how much money it had in the bank. These figures only had relevance to the punitive damages claim. You are not to consider these figures in deciding the amount of compensatory damages to award to the plaintiffs. You should put those figures out of your mind. For the purpose of your deliberations now, it is as if those figures were never mentioned to you. I remind you again to avoid being swayed by any emotion of anger or hostility toward the defendants as you consider the evidence, this evidence, in the limited fashion that you may. Beebe requested that the trial judge also give a limiting instruction regarding the notes that they took at trial, and the trial judge did so.[34] Finally, the trial judge instructed the jury in accordance with the Superior Court's Pattern Jury Instruction as follows: Delaware law provides that when a person dies as a result of another's wrongful act, certain family members may recover fair compensation for their losses resulting from the death. In determining a fair compensation, you may consider the mental anguish suffered by Anthony Bailey, Chris Connaway, Shawn Connaway, and Elberon Connaway, as a result of Julie Bailey's death. The term mental anguish encompasses the grieving process associated with the loss of a loved one. You may consider the grieving process, accompanied by its physical and emotional upheaval, will be experienced differently by different people, both in its intensity and in its duration. The ability to cope with the loss may be different for each person. There is no fixed standard or measurement. You must determine a fair and adequate award through the exercise of your judgment and experience after considering all the facts and circumstances presented to you during the trial. While the surviving family members carry the burden of proving their damages by a preponderance of the evidence, they are not required to claim and prove with mathematical precision exact sums of money representing their damages for mental anguish. It is required only that they furnish enough evidence so that you, the jury, can make a reasonable determination of those damages. In considering the jury instructions as a whole, and acknowledging that all parties agree that inevitable overlap occurred in the damages evidence, we find that the instructions satisfy the "reasonably informative and not misleading" standard. The jury was intelligently able to perform its duty in returning a verdict based on instructions that we conclude were legally adequate under the circumstances. Therefore, we hold that the trial judge's jury instructions were proper, and did not constitute plain error. *558 For the foregoing reasons, the judgments of the Superior Court are AFFIRMED. NOTES [1] Beebe Medical Center and Lewes Convalescent Center, Inc. are both appellants-defendants below in this action. We refer to the appellants-defendants collectively as Beebe. [2] The appellees-plaintiffs are Julie Bailey's surviving family members, including her husband and three sons, and Julie Bailey's estate. We refer to the family collectively as surviving family members, and sometimes refer to the plaintiffs collectively as "Bailey.". [3] 10 Del. C. § 3724. [4] McNally v. Eckman, 466 A.2d 363, 367 (Del. 1983) (The issue presented against one of two tortfeasors included willful or wanton conduct and against the other ordinary negligence. This Court affirmed the trial judge's decision to grant the motion to separate the claims because he did not abuse his discretion and there was no unfair prejudice to the complaining party). [5] Id. [6] Del.Super. Ct. Civ. R. 42(b). [7] Union Mutual Life Insurance, Co. v. Dewey, 270 A.2d 833 (Del.Super.Ct.1970) (Insurer brought a declaratory judgment against corporation and employee. The defendants filed a cross claim against another for negligent misrepresentation. The Superior Court judge denied the motion to separate the claims). [8] Id. at 834. [9] Randolph v. Scott, 338 A.2d 135 (Del.Super.Ct.1975) (Bicyclist brought an action against an operator of a motor vehicle for injuries in an accident. The defendant moved for separate trials on the issues of liability and damages, and the Superior Court judge denied the motion). [10] Id. at 136. [11] Id at 137. [12] Id. [13] See Del.Super. Ct. Civ. R. 42(b). [14] The trial court: While I have not granted the defendants' motion, I am certainly more than willing to consider any tailored jury instructions that will make it clear to the jury what evidence they may consider and what purposes they may consider that evidence for when they are considering this case and when they go to conduct their deliberations. Many times in many other cases, we will admit evidence for a limited purpose, and we will often tell the jury that they may only consider it for that particular purpose and they may not consider it for any other purpose. So with that in mind, I am certainly willing, as much as possible, to focus on those concerns raised by the defendants and to make sure that the jury only considers things properly and for the proper purposes, and if there are any special jury instructions that the defendants would like to propose that would make it even clearer to the jury, I will certainly entertain those because I do think the defendants' concerns are legitimate in this case. I don't want to bleed over punitive damages to compensatory damages. [15] 10 Del. C. § 3724. [16] D.R.E 103. [17] Hackett v. State, 888 A.2d 1143, 1145 (Del. 2005). [18] Id., (citing Capano v. State, 781 A.2d 556, 653 (Del.2001); Goddard v. State, 382 A.2d 238 (Del.1977)); see also D.R.E. 103(d). [19] 10 Del. C. § 3724. [20] Q: (Bailey's counsel): Tony, I need you to explain to the jury how all of this affected you. A: (Tony Bailey): Well, it's been extremely difficult to go forward. Because as time has gone on, I was doing ok for a while. But then more details started to come out. It's just like reliving it. Q: What details? What details are you talking about? A: The screw-ups. And particularly about LCC. I didn't have—I had felt that with all of this, I had felt still that I let Julie down. LCC, in reading some of the depositions, the staff there were [sic] very apprehensive about dementia patients. And quite frankly, they were not competent to—they were not up to handling Alzheimer's or dementia patients, in my opinion. Q: Okay. And how has learning about that incompetence affected your ability to grieve and to move on? A: I can't move on. I spent two years. It's been two years and two months now, and there are days that I couldn't even get off the couch, have no ambition. I haven't done any glass working at all. I'm doing these, like I said, reproductions a lot, making a few dollars there. But it's just a nightmare. But when I found out the apprehension, if that's the right word in this case, of LCC to take care of dementia patients, but then to find out that you will take them, that was outrageous. [21] Chris Connaway, Julie Bailey's son made the following statements during his direct examination: Q: I understand. During the course of this process that you have been through, you have seen the evidence in this case, obviously, and you have become aware of some of the warnings and some of the other problems that existed at the LCC. You have become aware of the complaints to the management about taking these types of patients, like your mother, and evidence that this may have—that this was preventable [sic]. And I want you to tell the jury that now knowing that this could have and should never have happened, how that has affected your ability to deal with this like someone would a normal death? A: This—I guess we could all make the same assumptions [Beebe's counsel] has and assume that LCC was just a great place to be, but it just flat out wasn't. They had so many flags. They knew about the daggone problems. They knew it. Where they knew things was from an administrative level, and if you don't give your employees the proper tools to work with, how are they supposed to make things better . . . It makes this so much harder to be able to deal with and get over this when you know it was a—it was such a loaded gun waiting to happen. This was foreseeable. This was unavoidable. It should not have happened, and above all, my mother was the most—to me, most undeserving person to have anything like this ever to happen. She—nobody—not just my mom, nobody should have to look at their mom in a way that we had to do. And still do. It's just not right. [22] See Hickman v. State, 801 A.2d 10 (Del. 2002); Hackett v. State, 888 A.2d 1143, 1145 (Del.2005); MacDonald v. State, 816 A.2d 750, 756 (Del.2003). [23] Beebe's counsel's remarks are most telling in regard to Beebe's tactical dilemma: I have been instructed by the [insurance] carrier to raise the issue that the jury has seen a lot of evidence, for lack of a better term, about what a bad place LCC was, and that is not an issue here. The carrier asked me, "Well, do you think that could be presented as an issue before the court?" I said—[sic] I don't mind belying confidences. They know I have to tell the Judge—"If I were [Bailey's counsel], I would say that that is a part of the emotional claim of the plaintiffs because they wouldn't be in that position except for their improper care." [24] "Like I say, the burden is on the defense to work together and get it to everybody so that we can come back tomorrow morning and knock out those two instructions . . ." [25] Beebe: "And for the record, in case someone is reviewing this, I do not feel we've been prejudiced by the fact that at this date we haven't had the opportunity to go document by document. It's only those documents that refer to numbers that I feel are in the Court's rulings, and without waiving the objection, once the Court has made its rulings, the rest of it flows from that. But I do appreciate the opportunity." [26] Del. Supreme Ct. R. 8. [27] Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986) (citing Dutton v. State, 452 A.2d 127, 146 (Del.1982)). [28] Id. [29] Riggins v. Mauriello, 603 A.2d 827, 830 (Del.1992) (citing Probst v. State, 547 A.2d 114, 119 (Del.1988)). [30] Probst v. State, 547 A.2d 114, 119 (Del. 1988). [31] Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001) (citing United States v. Cooper, 812 F.2d 1283, 1286 (10th Cir.1987)). [32] Probst at 119 (quoting Flamer v. State, 490 A.2d 104, 128 (Del.1984)). [33] See Flamer v. State, 490 A.2d 104, 128 (Del.1984). [34] Trial judge: One of the instructions I gave to you is what is known as a limiting instruction, and that is called that because it limits the manner in which you may consider certain evidence . . . In the instructions I said, that it was a lot of evidence that was submitted on the punitive damages claim. That claim is no longer before you, but that you could still consider some of that evidence or consider that evidence for a certain purpose, and that was whether or not the plaintiffs' mental anguish claims were worsened by certain things that they learned. That is the limiting instruction. When you are looking at your notes, if you look at your notes during your deliberations, you should also apply that limited instruction to anything that you have in your jury notes.

2013-10-30 06:32:48.368024+00

Bucklo

955 F. Supp. 952 (1997) UNITED STATES of America ex rel. Donald WINSTON, Petitioner, v. Thomas PAGE, Respondent. No. 96 C 1273. United States District Court, N.D. Illinois, Eastern Division. February 14, 1997. *953 Donald Winston, Mt. Sterling, pro se. *954 Arleen C. Anderson, Darryl Belmonte Simko, Margaret Mary O'Connell, Attorney General's Office, Chicago, IL, for Respondent. MEMORANDUM OPINION AND ORDER BUCKLO, District Judge. Petitioner, Donald Winston, was convicted of murder and robbery in March 1980 in the Circuit Court of DuPage County, Illinois. Mr. Winston has appealed his convictions in the Illinois state court system through both the direct appellate review mechanism and the Illinois post-conviction relief statute. All of his appeals have been unsuccessful in overturning his convictions. Accordingly, Mr. Winston petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied. Mr. Winston claims that the following four grounds justify action by this Court to grant him relief: (1) violation of his Miranda rights during custodial interrogation; (2) prosecutorial misconduct by exceeding the scope of direct examination when cross examining Mr. Winston and implicitly commenting on his failure to testify; (3) use of perjured testimony by the State to secure the conviction; and (4) a prison sentence which amounts to the imposition of cruel and unusual punishment.[1] None of these grounds, however, permit the Court to grant Mr. Winston's petition. Violation of Miranda Rights Mr. Winston alleges that the State violated his Miranda rights when it interrogated him without providing him with an attorney. He maintains that he requested the police investigators and the state's attorneys who interviewed him to appoint an attorney for him prior to his interrogation, but these officials took no action. As a result, the confession that resulted from the State's interrogation of Mr. Winston was obtained illegally. The State disputes Mr. Winston's claims. It argues that Mr. Winston was told of his Miranda rights, understood those rights, and voluntarily waived his right to counsel when making his confession. The Illinois Appellate Court agreed with the State's version and upheld the trial court's determination that Mr. Winston's testimony was not credible. People v. Winston, 106 Ill.App.3d 673, 682-85, 62 Ill. Dec. 355, 362-64, 435 N.E.2d 1327, 1334-36 (2nd Dist.1982). The Seventh Circuit has provided a framework for analyzing these types of habeas claims. "When a Miranda waiver is challenged, two distinct questions are presented: whether the waiver was voluntary, knowing, and intelligent as a matter of fact, and whether it was involuntary as a matter of law." Henderson v. DeTella, 97 F.3d 942, 946 (7th Cir.1996). The first question, concerning the knowledge, understanding and willingness of the petitioner to waive his rights, often involves conflicting testimony from both the State and the petitioner and "thus demands credibility assessments that typically only the trier of fact can make." Id. (citations omitted). These credibility assessments and other factual determinations made by the state court as the trier of fact are "entitled to a presumption of correctness" under 28 U.S.C. § 2254(e)(1). Id. (citations omitted).[2] *955 In the instant case, the trial court made several factual determinations concerning Mr. Winston's knowledge, understanding and relinquishment of his right to an attorney prior to speaking with police investigators and state's attorneys. Specifically, the court found that Mr. Winston did not request an attorney. Winston, 106 Ill.App.3d at 683, 62 Ill. Dec. at 362, 435 N.E.2d at 1334. The court credited the testimony of the police officer who questioned Mr. Winston and informed him of his rights. Id. These kinds of credibility assessments are due a great amount of deference by this Court because of the trial court's unique ability to observe the witnesses and hear the testimony first-hand. Sprosty v. Buchler, 79 F.3d 635, 645 (7th Cir.1996). Furthermore, the trial court identified several statements made by Mr. Winston which indicated that he understood his right to have an attorney prior to police questioning. Mr. Winston knew that if he talked with the police, they might use his statements against him, but if he made those same statements to his lawyer, his lawyer would not use them against him. Tr. of 1/21/80 at 8. In addition, the trial court found that Mr. Winston relinquished his right to an attorney because after being told by the state's attorney that he would "`adhere to'" his right to have an attorney present, Mr. Winston asked, "`what do you want to know?'" Winston, 106 Ill.App.3d at 684, 62 Ill. Dec. at 363, 435 N.E.2d at 1335. I have no basis upon which to dispute the trial court's factual findings. Mr. Winston contends that the testimony offered by the police and the state's attorneys was replete with inconsistencies which negate the weight accorded to it by the trial court. Putting aside the deference owed to the trial court's factual findings, I don't find clear and convincing evidence in the record to support Mr. Winston's contentions. Despite Mr. Winston's failure to point the Court to specific parts of the record which would support his position, the Court's own independent search of the record does not reveal any reason to disturb the trial court's findings. In fact, the record reveals that all of the state officials involved with interviewing Mr. Winston informed him of his rights and specifically told him that he did not have to speak with them. Tr. of 12/14/79 at 26, 36-37, 50, 74-75, 96, 1002-03. Moreover, each person testified that Mr. Winston understood his rights and agreed to answer their questions. Id. Given these facts and the deference owed to the trial court's credibility assessments, I must accept the trial court's finding that Mr. Winston both comprehended and relinquished his Miranda rights. See Henderson, 97 F.3d at 949. Mr. Winston's real contention focuses on the state courts' interpretation and application of the legal standards governing Miranda rights. For that issue, the Court turns to the next step of the inquiry. The second question, regarding the involuntariness of the confession, is a legal question which the Court reviews de novo. Id. at 947. This question involves an examination of the overall circumstances surrounding the confession to ensure that it was the "product of fundamentally fair procedures, untainted by any type of coercion...." Id. (citations omitted). Despite the legal nature of the inquiry, its resolution often will turn on "subsidiary" factual issues which are entitled to a presumption of correctness. See Bryan v. Warden, Ind. State Reformatory, 820 F.2d 217, 219 (7th Cir.1987). The case presently before the Court is one of these cases in which the factual determinations of the state court affect the de novo review of the legal issues. As already explained above, the Court will defer to the trial court's factual determinations that Mr. Winston understood his Miranda rights and chose to forego those rights with respect to the presence of counsel prior to police questioning. Hence, the remaining issue is whether Mr. Winston voluntarily made this choice. He argues that the police and state's attorneys caused him to be very nervous and anxious throughout their questioning and cajoled him into making a confession. Although the record shows that Mr. Winston seemed agitated during questioning and asked to see a psychiatrist, these facts do not demonstrate that the police interrogation amounted to coercion. In fact, Mr. Winston's anxious state just as easily might be attributed to the fact that the police were *956 questioning him about a murder he committed. What the record does demonstrate is that the police and state's attorneys tried to accommodate Mr. Winston by offering him soft drinks and cigarettes. Tr. of 12/14/79 at 104-05. Such offers do not constitute coercion or cajolement on the part of state authorities. Cf. Clewis v. State of Texas, 386 U.S. 707, 712, 87 S. Ct. 1338, 1341, 18 L. Ed. 2d 423 (1967) (holding that deprivation of food and sleep may be a factor in proving coercion). Indeed, Mr. Winston's conduct during the interrogation proves just the opposite of coercion. When Mr. Winston was asked two questions relating to his sexual relationship with the victim, he declined to answer them. Tr. of 12/14/79 at 101; see also Winston, 106 Ill.App.3d at 685, 62 Ill. Dec. at 364, 435 N.E.2d at 1336. By refusing to answer some of the police's questions, he demonstrated the voluntary, non-coerced nature of his statements. Finally, Mr. Winston claims that the state courts only discussed his comprehension of his Miranda rights; they never showed that he relinquished them. I disagree. The Supreme Court has held that a valid Miranda waiver encompasses both comprehension and relinquishment of rights. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977). The appellate court recognized this legal standard in its opinion, Winston, 106 Ill.App.3d at 685, 62 Ill. Dec. at 364, 435 N.E.2d at 1336, and both the trial and appellate courts showed facts proving both comprehension and relinquishment on the part of Mr. Winston. As detailed above, Mr. Winston has not come forward with clear and convincing evidence tending to prove otherwise. Therefore, Mr. Winston's first ground for habeas relief is without merit. Prosecutorial Misconduct — Cross Examination Mr. Winston's second basis for habeas relief centers on the actions of the prosecutor in cross-examining him. Mr. Winston claims that the prosecutor, in his cross-examination, exceeded the scope of direct examination and prejudiced Mr. Winston by commenting on his failure to testify about the specific events of the case. The State argues that Mr. Winston is procedurally barred from raising this claim in this Court. I agree. In habeas proceedings, a federal court will not review a decision of a state court involving a federal question where that decision "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, 115 L. Ed. 2d 640 (1991) (citations omitted). If the state court, however, has failed to make a plain statement that its decision rests on an independent and adequate state law ground, then a presumption arises that the court reached the federal question. Michigan v. Long, 463 U.S. 1032, 1042, 103 S. Ct. 3469, 3477, 77 L. Ed. 2d 1201 (1983). Even if a state court fails to make this plain statement, "the presumption may not apply automatically: The federal court first must determine whether the state court decision fairly appears to rest on federal grounds." Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993). The instant case presents this Court with the situation described in Willis. Mr. Winston failed to preserve the issue of prosecutorial misconduct because he did not raise it in a post-trial motion. Consequently, the appellate court found that he had waived it for appellate review. Winston, 106 Ill. App.3d at 686, 62 Ill. Dec. at 365, 435 N.E.2d at 1337. Yet the court also discussed the plain error doctrine as an exception to the waiver rule. Id. Pursuant to Illinois Supreme Court Rule 615(a), a petitioner may avoid the bar of waiver if the evidence is closely balanced or the error in question was so great that it denied the petitioner a fair trial. Id. The appellate court found that Mr. Winston's claims did not rise to the level of plain error, but it did not state that this finding was in the alternative to its waiver analysis. Id. Hence, the appellate court failed to make a plain statement of its grounds for rejecting Mr. Winston's claims. As Willis teaches, I must look to see if the appellate court's decision rests on any federal law grounds. It does not. The appellate *957 court did not cite any federal cases or even mention any federal or constitutional rights. Id. In its plain error discussion, the court cited several cases, but these cases themselves make no reference to any federal law. Id. The appellate court framed its discussion in terms of state evidentiary rules and found no prejudice to Mr. Winston from any improper questions due to the prompt sustaining of objections by the trial court and a general jury instruction to disregard those questions. Id. Therefore, the appellate court decision rests on independent and adequate state grounds and may not be reviewed by this Court. See United States ex rel. Hartfield v. Gramley, 853 F. Supp. 289, 293 (N.D.Ill.1994); see also United States ex rel. Balderas v. Godinez, 890 F. Supp. 732, 745-46 (N.D.Ill.1995). Perjured Testimony Mr. Winston's third claim, that his conviction was secured using perjured testimony from State witness Peter Makres, faces a different procedural bar. Before any federal court may hear claims in a petition for habeas corpus relief, a state court must have had a "full and fair" opportunity to review all of a petitioner's federal claims. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991) (emphasis added). A failure to provide this opportunity results in a procedural default which bars the petitioner from raising those claims in federal court. Id. at 410. If the petitioner, however, can show "adequate cause to excuse his failure to raise the claim in state court and actual prejudice resulting from the default," he may be permitted to raise the defaulted claim in federal court. Id. at 411. A petitioner also may overcome a procedural default by demonstrating that a fundamental miscarriage of justice will occur without federal court review. Coleman, 501 U.S. at 750, 111 S. Ct. at 2564-65. Mr. Winston failed to give the state courts a full and fair opportunity to review directly his claim of perjured testimony. He did raise this issue in both his first and second petitions for post-conviction relief, but in each instance, he failed to include the relevant part of the transcripts which would permit the state courts to address his claim fully and fairly. In his third petition, Mr. Winston raised the perjury issue, but he did so indirectly in the context of an ineffective assistance of counsel claim. He claimed that the reason his first two petitions failed on the perjury issue was due to his counsel's failure to provide the courts with the necessary transcripts and other supporting documents. Consequently, the appellate court found that his claim was not barred under res judicata principles because it was presented as an ineffective assistance of counsel claim rather than directly as a perjury claim. People v. Winston, No. 79-CF-1651, slip op. at 5 (Ill. App. 2nd Dist. Aug. 30, 1995). In his habeas petition, however, Mr. Winston once again presents this perjured testimony claim. Because this claim never has been addressed fully and fairly by the state courts directly as a claim of perjury, I am precluded from reviewing it. See United States ex rel. Alcantar v. Gramley, 870 F. Supp. 246, 247 n. 2 (N.D.Ill.1994); United States ex rel. Love v. Flannagan, No. 86 C 7931, 1987 WL 12924, at *1 (N.D.Ill. June 22, 1987). Nonetheless, if Mr. Winston can demonstrate cause for this procedural default and resulting prejudice, I can review the claim. The appellate court did not reach the issue of whether or not the performance of Mr. Winston's counsel was deficient enough to constitute a violation of his constitutional rights. Winston, No. 79-CF-1651, slip op. at 7. Likewise, the Court need not reach the issue of whether Mr. Winston's ineffective counsel can qualify as cause to excuse a procedural default because Mr. Winston cannot demonstrate any prejudice. The Court simply notes that "[a]ttorney error short of [constitutionally] ineffective assistance of counsel ... does not constitute cause and will not excuse a procedural default." McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991). On the prejudice issue, Mr. Winston has not demonstrated that the State used perjured testimony to secure his conviction. He points this Court to a transcript from July 29, 1980 in which the State argued that Mr. Makres, the alleged perjurious witness, should receive credit toward one of his prison sentences for time served. On this basis, *958 Mr. Winston maintains that the State made a secret deal with Mr. Makres in return for his testimony. Neither the July 29, 1980 transcript nor anything else in the record supports Mr. Winston's allegations. In the transcript the prosecutor states that Mr. Makres voluntarily came forward and offered to testify and was not promised anything in return for that testimony. Tr. of 7/29/80 at 3, 5. The prosecutor only supported Mr. Makres' request afterwards because he had done the "right thing" by testifying. Id. at 5. Mr. Winston has offered no reason, and I cannot find any in the record, to doubt the veracity of the prosecutor's statement. Thus, Mr. Winston cannot show the necessary prejudice to his rights to hurdle the procedural bar on this claim. Cruel and Unusual Punishment Mr. Winston's final ground for habeas relief is that the imposition of a sixty year prison sentence for his murder conviction amounts to cruel and unusual punishment. Federal courts generally do not review state prison sentences that lie within statutory limits. Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.1984). The only method for attacking a state sentence in a habeas corpus petition is by demonstrating that the trial court "lacked jurisdiction to impose it or committed a constitutional error that made the sentence or underlying conviction fundamentally unfair." United States ex rel. Melind v. Illinois, No. 93 C 734, 1994 WL 710663, at *5 (N.D.Ill.Dec.20, 1994) (citing Bean v. United States, 679 F.2d 683, 685 (7th Cir.1982)). Based on this well-established law, Mr. Winston's cruel and unusual punishment claim is not cognizable in this court. The trial court was well within its statutory authority to impose this sentence based on its findings regarding the brutality and heinousness of Mr. Winston's crime. Ill.Rev.Stat. 1979, ch. 38, ¶¶ 1005-5-3.2(b)(2), -8-2(a)(1). To the extent that Mr. Winston challenges the trial court's findings on the brutality of the crime, that determination was based on state law and did not involve any federal constitutional issues. Winston, 106 Ill. App.3d at 687, 62 Ill. Dec. at 366, 435 N.E.2d at 1338. Therefore, the claim is not cognizable in this Court. Conclusion Mr. Winston's grounds for habeas relief either are procedurally defaulted, not cognizable in this Court, or lacking merit. Therefore, his petition for habeas corpus is denied. NOTES [1] Mr. Winston's petition originally offered a fifth ground for relief, improper juror selection. In his reply brief, however, Mr. Winston conceded this argument. Therefore, I will not address it. [2] On April 24, 1996 the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (amending 28 U.S.C. § 2254(d)-(e)). The Seventh Circuit recently decided that the substantive provisions of Section 2254(d) of that law apply to those habeas cases which were pending at the time of its enactment. Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir.1996)(en banc), cert. granted in part, ___ U.S. ___, 117 S. Ct. 726, 136 L. Ed. 2d 643 (1997). For the purposes of this case, however, Section 2254(e)(1) of the new law is relevant. That section provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence...." Although the Seventh Circuit did not address the retroactive application of this section specifically, the Court believes that the same reasoning employed by the Seventh Circuit in Lindh makes Section 2254(e)(1) apply retroactively as well. See Lindh, 96 F.3d at 865-67; Thomas v. Gramley, 951 F. Supp. 1338, 1340-41 (N.D.Ill.1996). Accordingly, the Court will apply Section 2254(e)(1) to Mr. Winston's claims.

2023-08-22 21:24:26.748781+00

Hamilton

MR. Justice Hamilton delivered the opinion of the Court.- The Court of Civil Appeals has reversed and remanded a summary judgment granted to the petitioner (hereinafter referred to as Taylor) by the trial court. That summary judgment denied the School District’s right to its requested relief of $36,278.00. 322 S.W. 2d 548. The School District had decided to build a Junior High School building and had called for competitive bids from various contractors for the construction. Taylor submitted a bid, together with a performance bond, as was required, and his bid of $534,175 was the lowest of nine bids submitted. The School District, within a few minutes after the bids were opened, accepted the bid of Taylor. His bond, furnished by Seaboard-Surety Company, provided that it would be null and void if the contract to build the building was subsequently executed by him; otherwise the obligors would pay the difference between the Taylor bid and the bid finally accepted. In addition to the total amount of the estimates an amount of 6% was to be added by Taylor as anticipated profit margin. When this was done an error of $100,000 occurred due to a failure to carry a digit. The error was not discovered until the morning after the School District had accepted the Taylor bid, when notice of such mistake was promptly given to the School District. Taylor refused to execute the tendered construction contract, and when the contract was returned unexecuted the Board awarded the contract to the next lowest bidder, Bock Construction Company. No readvertisement or additional expense was involved for the School District. Suit was instituted by the School District to recover on the bond the amount of the difference between the Bock bid and the Taylor bid, an amount of $36,278.00. In reversing and remanding the summary judgment granted by the trial court to the - petitioner the Court of Civil Appeals held that on a new trial Taylor must prove by clear and convincing evidence that the unilateral mistake made by petitioner was not due to Taylor’s negligence, and that the School District knew or had reason to know that Taylor had made a mistake prior to its acceptance of the bid. The holding of the Court of Civil Appeals is that Taylor is liable unless he proves these *620points. Taylor’s points of error assert that equitable relief is not barred by ordinary negligence, but only by gross negligence or bad faith, and that it was not necessary that the School District know or have reason to know of the error prior to acceptance of the bid before rescission can be granted. 1,2 On the question of equitable relief by way of rescission, we have concluded that we cannot agree with the Court of Civil Appeals in holding that before petitioner is entitled to relief he must show by clear and convincing evidence that the unilateral mistake was not due to his own negligence and that the School District either knew or should have known of the mistake before accepting his bid. We think the great weight of authority is against the law as announced by the Court of Civil Appeals. Most of the cases and legal writers affirm the proposition that equitable relief will be granted against a unilateral mistake when the conditions of remediable mistake are present. These conditions generally are: (1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake must have been made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the equity sense, i.e., rescission must not result in prejudice to the other party except for the loss of his bargain. There may be other circumstances which will govern or influence the extension of relief, such as the acts and extent of knowledge of the parties. Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N.E. 564, 10 L.R.A. N.S. 114, (1907) ; M. F. Kemper Const. Co. v. City of Los Angeles, 37 Cal. 2d 696, 235 P. 2d 7 (1951) ; City of Baltimore, etc. v. De Luca-Davis Const. Co., Inc., 210 Md. 518, 124 Atl. 2d 557 (1956) ; Story’s Equity Jurisprudence, Sec. 1381; 59 A.L.R. 809, Anno.: Unilateral Mistake as Basis of Bill in Equity to Rescind the Contract; 52 A.L.R. 2d, p. 792, Anno.: Rights and Remedies of Bidder for Public Contract Who Has Not Entered Into a Contract, Where Bid Was Based on His Own Mistake of Fact or That of His Employees. In 52 A.L.R. p. 796, in summarizing the conditions under which equity will grant relief from the consequences of a bid for a public contract which has been submitted as the result of a remediable, unilateral mistake, before acceptance of the bid, it is stated in effect that no case has been discovered in which equitable relief has not been granted by way of rescission or similar appropriate relief where there is proof of a combination of circumstances establishing remediable mistake and time*621ly communication of knowledge to and assertion of the right to relief against the other party. The case of State Highway Commission v. Canion, 250 S.W. 2d 439, error refused n.r.e., is one of the cases cited as supporting this proposition. The School District contends that the Canion case is not in point because in that case the contractor gave notice of the mistake and attempted to withdraw his bid before acceptance by the Highway Commission, and in the case before us the School District had accepted the bid prior to notice of the mistake and the request for withdrawal of the bid. We do not interpret the court’s opinion in said case as attributing any particular importance to the fact that notice of mistake was given prior to acceptance. The court did recognize that a contract already existed between the contractor and the Highway Commission, even though it was a unilateral contract. It did this by granting a rescission. The court in that case based its decision principally on the fact that to enforce the contract would be unjust, inequitable and oppressive upon the contractor for an honest mistake which did not injure the Highway Commission. It is true the Highway Commission had not accepted Canion’s bid when notified by him of his error three days after his bid was opened, but, in that case, as in this one, no formal contract had been entered into. It is said in 43 American Jurisprudence, Public Works and Contracts, Sec. 63, p. 805: “As a general rule, equitable relief will be granted a bidder for a public contract where he has made a material mistake of fact in the bid which he submitted, and upon the discovery of that mistake acts promptly in informing the public authorities and requesting withdrawal of his bid or opportunity to rectify his mistake, particularly where he does so before any formal contract is entered into.” 3 It seems to us to be well settled that even after acceptance of a bid, but before the execution of the contract contemplated by the parties, a bidder for a public contract who makes a remedial mistake in his bid may, by giving notice thereof before material change of position to the detriment of the offeree, obtain rescission of the bid or relief against its enforcement. Shepard v. United States (1942), 95 Ct. Cl. 407; Bromagin & Co. v. City of Bloomington (1908), 234 Ill. 114, 84 N.E. 700; Board of School Commissioners of City of Indianapolis v. Bender (1904) 36 Ind. App. 164, 72 N. E. 154; Board of Regents of Murray State Normal School v. Cole (1925), 209 Ky. 761, 273 S.W. 508; Kutsche v. Ford (1923) 222 Mich. 442, 192 N.W. *622714; School Dist. of Scottsbluff V. Olson Construction Co. (1950) 153 Neb. 451, 45 N.W. 2d 164; Barlow v. Jones (1913), N.Y. Ch., 87 Atl. 649; Harper v. City of Newburgh (1913), 159 App. Div. 695, 145 N.Y.S. 59; Donaldson v. Abraham (1912), 68 Wash. 208, 122 P. 1003. In applying the rules that should govern the granting of equitable relief for remediable mistake the principal difficulty with which we are confronted is determining the effect of negligence on the part of one claming equitable relief for his own mistake. Of course the very word “mistake” itself may can-note some degree of negligence, and when the cases speak of an honest mistake and one made without negligence, it is difficult to determine just what kind of negligence is meant. In a footnote on page 794 of 52 A.L.R. 2d, it is stated: “The term ‘negligence,’ or its equivalent, in this connection generally means ordinary negligence, which will not necessarily bar granting equitable relief. Otherwise qualified, it generally means carelessness or lack of good faith in calculation which violates' a positive duty in making up a bid, so as to amount to gross negligence, or wilful negligence, when it takes on a sinister meaning and will furnish cause, if established, for holding a mistake of the offending bidder to be one not remediable in equity. It is thus distinguished from a clerical or inadvertent error in handling items of a bid, either through setting them down or transcription.” In the case of Dixon v. Morgan, 154 Tenn. 389, 285 S.W. 558, the court points out that only culpable negligence will preclude relief, and for negligence to be culpable it must be due to the failure to perform some duty, that it is not a failure of duty to one’s self, but to another, that constitutes culpable negligence, and that a mistake in the computation of the cost of construction work in order to make a bid therefor does not indicate such culpable negligence as will preclude equitable aid to rescind the contract where to sustain it would give the other party an unconscionable advantage. In the case of Board of Regents v. Cole, 209 Ky. 761, 273 S.W. 508, the contractor by mistake omitted a $22,000 item in submitting his bid, and it was there held that he was entitled to have the' contract rescinded, the court saying that there was no doubt the contractor had made an honest mistake and it did not appear that he was guilty of culpable negligence. It was such an érror as any businessman might make. *623In Barlow v. Jones (N.J. Ch.) 87 Atl. 649, it was held the contractor was entitled to have his bid for public work can-celled where in making up his bid he had inadvertently omitted an item of $28,000. It appeared that he was in ill health and subjected to considerable pressure at the time, and under the circumstances the court said the mistake was one which might be made by a careful man, and certainly one which could not be characterized as gross negligence. Several of the appellate courts of this state have had occasion to comment on this question. Brown v. Levy, 29 Texas Civ. App., 389, 69 S.W. 255, no writ history; Edwards v. Trinity & B. V. Ry. Co., 54 Texas Civ. App. 334, 118 S.W. 572, writ refused; Warren v. Osborne, 154 S.W. 2d 944, error refused w.o.m.; State v. Scholz Bros., 4 S.W. 2d 661, no writ history; Clem Lumber Co. v. Marty, 26 S.W. 2d 319. The Scholz case indicates that any negligence will prevent rescission. However, in that case it appears that the elements of remediable mistake probably were not present. From the court’s opinion it appears that the mistake may have resulted only in the contractor’s not making a profit on his contract. Furthermore, it appears that the contractor, after his bid had been accepted, had signed the principal contract before notifying the owner of the mistake. In the Osborne case reformation was granted where one party had knowledge of the other’s mistake. The court, in allowing reformation, though the party seeking it had ben found negligent in the mistake, said: “The term ‘mistake’ involves some element of negligence which may or may not be excusable under the circumstances.” In the Edwards case the court held that rescission could be granted even though the complainant had been guilty of negligence in making a unilateral mistake, quoting from Pomeroy as follows: “* * * As a second requisite, it has sometimes been said in very general terms that a mistake resulting from the complaining party’s own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be [a] violation of legal duty, a court of equity will not interpose its relief; but even [with] this more guarded mode of statement, each instance of negligence must depend *624to a great extent upon its' own circumstances. It is not every negligence that will stay the hand of the court. The conclusion from the best authorities seems to be that the negligence must amount to the violation of a positive legal duty. The highest possible care is not demanded. Even a clearly established negligence may not of itself be a sufficient ground for refusing relief, if it appears that the other party has not been prejudiced thereby. * * * 2 Pom. Eq. Juris. (3rd Ed.) Sec. 856.” The Clem Lumber Co. v. Marty case held that the lumber company was not entitled to equitable relief from its mistake, but in that case the owner, after accepting the lumber company’s bid on material, purchased a lot and entered into a contract with a carpenter to build a building on said lot and actually used part of the supplies furnished by the lumber company before any notice of mistake was given. The elements of a remediable mistake were. not present. And finally, the case of Brown v. Levy was a suit by a contractor to recover a $500.00 deposit put up with his bid. The claimed mistake was a $10,000.00 error in addition in submitting a $64,000.00 bid. The next lowest bid was $76,000.00. He alleged generally the elements required to show remediable mistake, but it is doubtful that the loss of the $500.00 deposit was a material detriment under the circumstances. The trial court sustained a general demurrer to the contractor’s petition and the Court of Civil Appeals affirmed. 4 We think the authorities, both from this state and from other jurisdictions, clearly indicate that in cases of this kind ordinary negligence will not necessarily bar the granting of equitable relief. Generally it is only when negligence amounts to such carelessness or lack of good faith in calculation which violates a positive duty in making up a bid, taking into consideration the nature of the transaction and the position of the opposite contracting party, that equitable relief will be denied. 5 We think that if we accept as true the facts as testified to by Hicks, Taylor’s estimator, relating how the error was made and under the circumstances in which it was made do not indicate such negligence as would bar Taylor from equitable relief. He says that he was severely limited as to time, and that it was necessary to compile the bids of many subcontractors, which were being received almost up to the deadline when the bid was to be submitted. He was rushed to get the estimate completed in time for submission. The work sheets, consisting of eight pages, were made a part of his deposition. From an examination of them it appears that the completed estimate as prepared by *625Hicks showed the cost to the contractor to be $598,326.86. He took the estimate to Mr. Taylor’s office, who looked at it and wrote down on the last page of the estimate “6% add.” This was to be the contractor’s profit. Hicks correctly computed the 6% as $35,899.61. but when he added it to the estimate figure, in adding from right to left he failed to carry a digit to the last figure, and came out with $534,226.47 instead of $634,226.47. Taylor then wrote down the figure $534,175, and told Hicks to submit that as the bid. Hicks filled that figure in on a form and took it personally to Arlington, where the bids were to be submitted, leaving his work sheets in his office. After the bids were opened the Board called Hicks in and advised him that he was the lowest bidder by some thirty-five or thirty-six thousand dollars, and asked him if he was sure his bid was correct. He said that it was. He expressed his opinion that probably the reason they were low was because the next lowest bid provided for a little over four hundred days to complete the contract, and Taylor’s bid provided for over five hundred days. The School Board accepted the bid immediately thereafter. The president of the School Board was notified of the contractor’s mistake by nine o’clock the next morning. While these facts, if true, would not necessarily bar equitable relief where the elements of remediable mistake are present, still we think that the trial court’s summary judgment should not have been granted, for the reason that the record shows that the only witness testifying with reference to the error was Hicks, who was an interested witness. The general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the jury. While there are exceptions to the rule, it seems settled that when testimony comes from an interested party and is of such a nature that it cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented. Further, the petitioner Taylor did not appear before the Board in his request for withdrawal of his bid, nor did he file an affidavit or submit his deposition in support of his motion for summary judgment, nor excuse his failure to do so. Consequently, it cannot be said as a matter of law that he did not know of the error, and on the issue of whether a mistake was in fact made, we think the court should, under the circumstances, have had the benefit of his testimony before granting him the equitable relief which he seeks. We therefore conclude that there was an issue of fact to be determined by the jury as to whether a mistake was in fact made. Of course each of the elements of the test applicable to a *626remediable, unilateral mistake is a fact issue to be submitted to a jury unless it can be resolved by the court under the undisputed evidence. As we have heretofore said, the question of negligence gives us the most difficulty. We have said that every negligence will not necessarily bar equitable relief in a case of this kind. It follows, therefore, that the trial court, guided by the principles herein stated, should determine from the facts and circumstances under which the mistake was made whether there is raised such issue of negligence that should be submitted to the jury. If there is raised an issue of fact as to whether the mistake was the result of such carelessness or lack of good faith in calculation which violate the positive legal duty in making a bid, then the court should inquire whether such mistake was wholly caused by the failure to exercise at least that minimum degree of care which a public authority in the position of the School District may reasonably expect all of its bidders to exercise in the light of the circumstances of the transaction and the practice of the trade. 3 Pomeroy’s Equity Jurisprudence, 5th Ed., p. 340. Although we remand the case for different reasons than those set out by the Court of Civil Appeals in its opinion, its judgment remanding the cause for a new trial is affirmed. Opinion delivered April 27, 1960.

2023-08-22 21:24:26.753453+00

Griffin

Mr. Justice Griffin, concurring. I agree in the affirmance of the judgment of the Court of Civil Appeals, but not on the grounds stated. In my opinion, the Court of Civil Appeals stated the correct rule of law when it said, “* * * The general rule is that though a contract has been formed by the acceptance of an offer — in view of the legal control of the objective appearance of the mistaken contractor’s acts, — nevertheless the contractor may avoid the obligations of the contract if he can prove by clear and convincing evidence that the mistake was non-negligent and that the Board suspected that a mistake had been made * * * .” In this case had the. contractor used one of the adding machines in his office to total his figures and had he checked his work on the adding machine slip, an error would have been discovered. Public bodies have a right to expect that those who submit *627bids have submitted correct bids. It is the duty of the public body to let the bids to the lowest bidder who is financially responsible. In the case at hand, the School Board called the attention of the petitioner’s representative to the fact that petitioner was some $35,000 to $40,000 low and asked the repre7 sentative if they were sure they could do the job on the bid rendered. It was only after receiving such assurance that petition7 er’s offer was accepted and the bid was let to petitioner. I think the equities are on the side of the School District and that the reasons given by the Court of Civil Appeals correctly declare the law when applied to the facts of this case. See also the case of State Highway Commission v. Canion, Texas Civ. App., 1952, 250 S.W. 2d 439, er. ref., n.r.e. Opinion delivered April 27, 1960.